Page 119 - GSTL_23rd April 2020_Vol 35_Part 4

2020 ] IN RE : TARUN REALTORS PVT. LTD. 445
and ‘or’ for ‘and’ even though the result of so modifying the words is less
favourable to the subject provided that the intention of the Legislature is
otherwise quite clear. Conversely if reading of ‘and’ and ‘or’ produces
grammatical distortion and makes no sense of the portion following ‘and’,
‘or’ cannot be read in place of ‘and’. The alternatives joined by ‘or’ need not
always be mutually exclusive.”
16. Applying the above principle to the instant case, we are of the opin-
ion that in this case, the word ‘or’ in clause (d) of Section 17(5) of the CGST Act
can be read as ‘and’ since it appears to give effect to the intention of the Legisla-
ture to allow input tax credit on the construction of plant and/or machinery.
Therefore, we are of the view that this argument of the appellant is not of much
relevance. We will not labour over the case laws cited by the Appellant on this
issue, as we do not rely upon those submissions of the Appellant.
17. Having said thus, we find that the restriction contained in Section
17(5)(d) is applicable to goods and services received by a taxable person for con-
struction of an immovable property. When goods and services are received by a
taxable person for construction of plant or machinery, there is no bar on eligibil-
ity to input tax credit. The appellant has argued that all the installations men-
tioned in his application qualify as ‘Plant’ or ‘Machinery’. The Explanation to
Section 17 defines “Plant and machinery” to mean apparatus, equipment, and
machinery fixed to earth by foundation or structural support that are used for
making outward supply of goods or services or both and includes such founda-
tion and structural supports but excludes -
(i) land, building or any other civil structures;
(ii) telecommunication towers; and
(iii) pipelines laid outside the factory premises.
18. The appellant has only provided information on the use of the vari-
ous items mentioned in his application. A general understanding of the items
such as Lift, Escalator, Travellator, Water treatment Plant, Sewage Treatment
Plant, HSD yard, Mechanical Car Park, DG Set and, Transformers, mentioned in
the appellant’s application, is that they are fixed to the earth either by a founda-
tion or with structural support and they qualify to be considered as “Plant and
machinery”.
19. On the other hand, the items such as Chiller, Air Handling Unit, In-
door/Outdoor Surveillance System (CCTV), electrical wiring and fixtures, Public
Health Engineering (PHE), Fire-fighting and water management pump system
do not appear to be apparatus/equipment/machinery which are fixed to the
earth. The appellant has also not submitted any information as to how these
items are getting embedded to the earth since the criteria for terming such items
as “Plant and Machinery” is that they have to be fixed to the earth either by
foundation or structural support. In the absence of such information we hold that
Chiller, Air Handling Unit, Indoor/Outdoor Surveillance System (CCTV), elec-
trical wiring and fixtures, Public Health Engineering (PHE), Fire-fighting and
water management pump system do not qualify as plant or machinery but are
items which are procured for the purpose of construction of the immovable
property. Hence, the appellant is not eligible for the input tax credit of the tax
paid on the procurement and installation of Chiller, Air Handling Unit, In-
door/Outdoor Surveillance System (CCTV), electrical wiring and fixtures, Public
Health Engineering (PHE), Fire-fighting and water management pump system.

GST LAW TIMES  23rd April 2020  239