Page 92 - GSTL_27th August 2020_Vol 39_Part 4

418 GST LAW TIMES [ Vol. 39
not attached to the earth. If the answer is yes to the latter it is attached to
the earth. For instance a shop for sale of merchandise or eatables is a struc-
ture. The same could be sold by keeping in a push cart which has its mobili-
ty from place to place. Merely because it is stationed at a particular place
and business was carried on, it cannot be said that push cart is a shop. The
fact that no nuts and bolts were used to imbed the tank to the earth by itself
is not conclusive. Though the witness stated that the tank is capable of be-
ing shifted, as a fact the tanks were never shifted from the places of erec-
tion. By scientific process, the tanks stand on their own weight on the earth
at the place of erection as a permanent structure.
3.3 In the instant case also; paver blocks once laid on the land are not
movable to another place of use in the same position unless dismantled and laid
again at later place. Hence, the paver blocks are permanently embedded to earth
and hence laying of the paver blocks on the land amounts to construction of im-
movable property u/s. 17(5). Therefore, input tax credit is not allowable to M/s.
Sundharams Pvt. Ltd.
4. Hearing :
Preliminary hearing in the matter was held on 26-11-2019. Sh. Subhash
Chhajed, C.A. along with Sh. Muthuswami, G.M. appeared, and requested for
admission of their application. Jurisdictional Officer Sh. Prashant Patil, Dy.
Commr. of S.T. (E-601), Large Tax Unit-1, Mumbai also appeared.
The application was admitted and called for final hearing on 22-1-2020.
Sh. Subhash Chhajed, C.A., Ms. Kajol Jain, C.A., Sh. Muthuswami, G.M. Sh. M.
Ganeshan, V.P. and Sh. Balakrishna G.M. appeared made oral and written sub-
missions. Jurisdictional Officer Sh. Prashant Patil, Dy. Commr. of S.T. (E-601),
Large Tax Unit-1, Mumbai appeared and made written submissions. We heard
both the sides.
5. Discussions and findings :
5.1 We have gone through the facts of the case, documents on record
and submissions made by both, the applicant as well as the jurisdictional officer.
5.2 The main issue before this authority is whether the Paver Blocks in
the subject case are to be treated as immovable or movable property.
5.3 The applicant has made submissions in support of their contention
that Laying of Paver Blocks on land does not amount to construction of immova-
ble property u/s. 17(5)(c) of the CGST Act, 2017 and are to be construed as mov-
able items. With respect to eligibility of ITC applicant has stated that, the prohibi-
tion to avail input tax credit is applicable only in respect of expenditure which is
capitalized in the books of account and since, expenses on Paver Blocks are not
capitalized as a part of immovable property (Land) in their books of account, ITC
is allowable to them. Applicant has finally surmised that even if it is assumed
that Paver Blocks as in the subject case, acquire the character of “immovable
property”, they should be allowed ITC as per the decision of Orissa High Court’s
decision in Safari Retreats Pvt. Ltd. v. Chief Commr. of CGST reported in 105 Tax-
mann 324 = 2019 (25) G.S.T.L. 341 (Ori.).
5.4 The jurisdictional officer, citing the case law of “Municipal Corpora-
tion of Greater Bombay and Others v. Indian Oil Corporation Ltd., 1991 Supp (2) Su-
preme Court Cases 18” has contended that laying of the paver blocks on land
amounts to construction of immovable property u/s. 17(5) and therefore, ITC is
not allowable to the applicant.
5.5 The Paver Blocks brought to the site wouldn’t serve any purpose
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