TaxTMI 
TaxTMI 
TaxTMI 
2020 (7) TMI 476
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....e to such a similar provision under the CGST or MP GST Act would be mentioned as being under the GST Act. 3. BRIEF FACTS OF THE CASE - 3.1 The company Jabalpur Hotels Private Limited was incorporated on 13th March 2018. With 5000000 Share Holders Holding 4970000 shares of Rs. 10/- each. 3.2 The company was established with an object to construct Hotel in Jabalpur at Mauza Ghana Khasara No 195/14, 195/2, 194 Nagpur Road, Jabalpur. 3.3 Company started construction of Hotel and completed a major part of its work. 3.4 The Hotel is in construction stage and the promoters of the hotel have some doubt on the issues of Input Tax Credit under GST hence preferred to file Advance Ruling before the Authority. 3.5 This application sort advance ruling for input credit on Lift used in hotel. 4. QUESTION RAISED BEFORE THE AUTHORITY - Input credit on Purchase of Lift would be available to Hotel as it has been used in the course or for the furtherance of business. 5. DEPARTMENT VIEW POINT -The concerned office in his view stated that under section 17(5)(d) no input tax credit is eligible on the lift on the instant case. 6. RECORD OF PERSONAL HEARING - 6.1 CA Neeraj Agrawal, Accounts Offic....
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....HORITY- Input credit on Purchase of Lift would be available to Hotel as it has been used in the course or for the furtherance of business. 6.17 FURTHER THE ASSESSEE BEGS TO SUBMIT AS UNDER: 1. Object for Incorporation of Company a. As per Memorandum of Association the company Jabalpur Hotels Private Limited was incorporated with the following object. Copy of Relevant part of Memorandum of Association is enclosed as per Annexure N/1). i. To carry on the business of hotel, restaurant, cafes, motel, resort, rest house, gest house, coffee house, recreation rooms, bars, conference center, leisure center, beer house, night club, boathouse, taverns, lodging-housekeeping, inn owners, boathouse, shikara, holiday -hut business and game room owners, grounds and place of amusements, recreation and entertainment and to carry on business as hotel manager and operators, refreshment contractors. ii. To carry on the business as professional caterers, bakers, confectioners, cooks, restaurant keepers, refreshment rooms proprietors, milk and snack bar proprietors, pastry shop ownwes, café and tavern proprietors, boarding & lodging house proprietors, ice cream merchants, sweetmeat mercha....
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....ble person for construction of an immovable property (other than plant or machinery) on his own account including when such goods or services or both are used in the course or furtherance of business. c. Excluding the above referred credit under section 17(5)(d) company is eligible for all other credit of inputs, input services and capital goods used in the course or furtherance of business. d. Lift in a hotel is also used in the course or furtherance of business, as it approximately impossible to run a multi storied hotel without a lift in the present scenario. e. Section 17 (5)(d) of CGST Act 2017 also blocks credit of only construction of immovable property other than plant or machinery, hence it is the clear intent of the law makers that they do not wish to block credits of plant or machinery. f. The good, "Lift" falls under HSN 8428 1011/8428 1019. ITC is admissible. Not hit by Section 17(5) of CGST Act, 2017. g. Further the lift so purchased is being capitalized in the books of the company and depreciation as per the provisions of income Tax Act,1961 is charged on the cost of lift less eligible credit of GST. Hence no depreciation is being applied on the GST portion cred....
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....T 481 (S.C.) = 2010 (7) TMI 12 - SUPREME COURT iii) Saraswati Sugar Mill Vs. Commissioner of Central Excise Delhi III 2011 (270) E.L.T. 465 (S.C.) = 2011 (8) TMI 4 - SUPREME COURT J. Further, these installations are recorded in the books of accounts under separate heads as per Indian Accounting Standards (i.e. independent of building or civil structure) which is sufficient justification that these installations are distinct from the land and building, Hence, the same do not form a part of the exclusion portion of the Explanation to Chapter V and Chapter VI of the CGST Act, 2017 and are accordingly, not excluded from the definition of 'Plant and Machinery'. The Applicant submits that, basis the above, although the Installations are fixed to the building/ earth, they qualify as 'Plant' or 'Machinery' under the CGST Act, 2017 and accordingly, the taxes paid on procurement of LIFT should not be regarded as blocked credits in terms of Section 17(5) (d) of the CGST Act, 2017 read will Explanation to Chapter V and Chapter VI of the CGST Act, 2017 7. DISCUSSIONS AND FINDINGS - 7.1 We have carefully considered the submissions made by the applicant in the application, the pleadings on ....
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.... in respect of the following, namely - (a) -------------------- (b) -------------------- (c) -------------------- (d) Goods or services or both received by a taxable person for construction of an immovable property (other than plant and machinery) on his own account including when such goods or services or both are used in the course or furtherance of business. 7.6 Thus, the intent of the legislature is clear to the extent that it intends to restrict input tax credit on any goods or services which are used or intended to be used in construction of an immovable property, even when such goods or services or both are used in the course of furtherance of business. We don't see any ambiguity in the words of the statute to this extent. We feel that the applicant is also on the same page with us that any goods or services used in construction of an immovable property shall not qualify for availment of input tax credit in terms of this sub-section 17(5). 7.7 To avoid the event of blocking of credit in terms of Section 17(5)(d), the applicant have argued that the impugned item 'Lift' merits classification as 'Plant and Machinery' and since 'Plant and Machinery' is excluded from th....
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.... integral part of the building. 7.8 Now, considering the alternate argument adduced by applicant to treat such lift as plant and machinery, we find that this scenario would merit consideration when the lift is being manufactured by someone and inputs or input services going into manufacture of the lift are in question. In the instant case, the applicant has procured the customized lift and gotten it installed piece by piece in the building resulting in the mechanized transportation system called lift. The explanation below Section 17(6), relating to the expression "plant and machinery" has included foundation and structural support in the term "plant and machinery". It has also been stated that such foundation and structural support are used for fixing apparatus, equipment and machinery. Therefore, in the definition foundation and structures are duly included. Further the definition has excluded and building and any other civil structure from the definition of the "plant and machinery". Prima facie, there seems to be contradiction in the inclusion of "such foundation and structural supports" and exclusion of or any other civil structures". This apparent contradiction is however n....