TaxTMI 
TaxTMI 
2019 (11) TMI 1697
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....nput tax credit, as per S.R.O. 324/2005 promulgated under S. 2(x) of the Kerala Value Added Tax Act, 2003 ('the K.V.AT. Act' for short)". 2. The State is in revision against a common order of the Kerala Value Added Tax Appellate Tribunal, Additional Bench, Ernakulam in TA (VAT) Nos. 1239 and 1240 of 2011, dated 04.02.2016. 3. Brief facts relevant are as follows. The respondent/assessee claimed input tax credit with respect to the value of capital goods, in the assessment years 2007-2008 and 2008-2009, amounting to Rs. 14,80,071/- and Rs. 41,84,831/- respectively, by producing supporting evidence of purchase invoices. But the Assessing Authority disallowed the claim on finding that, the 'civil structure' and 'immovables....
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....s allowed in total. It is aggrieved by the said decision the State had preferred these revision petitions. 5. Section 11 of the KVAT Act provides for allowing input tax credits. It provides that, a dealer liable to pay tax under sub-section (1) of Section 6 shall be eligible for input tax credit, subject to the restrictions provided therein. Sub-section (2) specifies that, with respect to capital goods purchased by the dealer, where the value of the goods exceeds such limits as may be prescribed, input tax credit will be allowed over a period of three years from the date of commencement of commercial production or from the date on which the capital goods are put to use, whichever is later, in such manner and subject to such conditions as m....
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....e assessee will not be eligible for credit of input tax, because those goods are taken away from the purview of 'capital goods' defined under Section 2 (x). 6. We may now examine nature of the 'capital goods' for which the assessee claimed credit of input tax, which are not allowed by the first appellate authority. The capital goods for which the claim was rejected, are as follows; "(1) Air conditioners. (2) Civil Structure and immovable goods or properties. (3) Vehicles other than goods delivery vehicle. (4) Elevators (lift). (5) All kinds of cranes, earth movers, JCB Excavators, Road rollers, concrete mixing machine and other similar machineries used in connection with supply of labour and services. (6) Buildi....
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....termed that those items are building materials and fixtures used in the construction activities or that they are civil structures or immovable goods or properties. Therefore we do not think that the findings of the Tribunal with respect to these goods require reconsideration. 7. With respect to 'Silo' and 'Silo mounted filters', learned Government Pleader appearing for the revision petitioners raised persuasive contentions that those are 'civil structures' and 'immovable goods', which form part of the plant or machinery. It is pointed out that, those are structures made out of the 'cement and steel' and it will fall squarely within item No. 2 included in the negative list in S.R.O. 324/2005. Per cont....
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....g filter is to extract fresh air from the silo to the environment." 9. The Tribunal examined the question as to whether the silos and connected machinery will fall within negative list. It was specifically noticed that, item No. 7 in SRO 324/2005 excludes only the machineries used in connection with supply of services. Other machineries excluded are specifically mentioned as, all kinds of cranes, earth movers, JCB Excavators, Road rollers, Concrete Mixing Machineries. Those 6 types of machineries specifically contained in SI. No. 7 in S.R.O. 324/2005, can no doubt be said as machineries connected with construction activities or infrastructure in the industry. In other words, those are machineries which can be used in supply of labour and s....
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....d inter dependent operation of their respective parts, generate power or evoke, modify, apply or direct natural forces with the object in each case of effecting definite and specific result need to be included in the ambit of 'machinery'. Further, with respect to certain types of tanks and units wherein chemical process are carried out and, if taken by themselves having mechanical contrivances also, which form part of the bigger machinery can be called as processing unit coming within the ambit of machinery. 10. With respect to 'silos' the Tribunal had placed reliance on the decision in Nowrangroy Metals (P) Ltd. V. JCIT (2003 (2) KLT OnLine 1213 (Gau.) : (2003) 262 ITR 231), C.I.T. V. R.G. Ispat Ltd. (2003 (3) KLT OnLine 1....