Page 93 - GSTL_27th August 2020_Vol 39_Part 4

2020 ] IN RE : SUNDHARAMS PVT. LTD. 419
unless the same are placed on land on their own weight, fitted by way of inter-
locking, and made working. The site would be an immovable property such as
vacant land. The impugned activity does not involve supply of Paver Blocks as a
chattel. Further, it is not the case that in case it is desired to do away with it, one
can remove the system and put it into place on some other piece of vacant land,
as it is, because the installation of Paver Blocks take support from the boundaries
of vacant land and the contours of the new vacant land cannot/may not be the
same as the present vacant land. Also, removal would always involve a total
dismantling which cannot be without loss or damage. Such systems have a lon-
gevity of existence in terms of the aspect that these are not set up and removed
frequently. It is not the case that in case it is desired to do away with it, one can
remove the system and put it “as it is” at another location. Hence the question in
these set of facts is whether the impugned activity could be said to be one as re-
sulting into immovable property.
5.5.1 The term ‘immovable property’ has not been defined under the
GST Act. However, there are a catena of decisions of various Hon’ble Courts de-
liberating on what constitutes an ‘immovable property’.
5.5.2 In the case decided by the Supreme Court in T.T.G. Industries Ltd.
v. CCE, (2004) 4 SCC 751 = 2004 (167) E.L.T. 501 (S.C.), the judicial member con-
cluded that, erection of mudgun and tap hole-drilling machine results in erection
of immovable property and found support in the decision of the Supreme Court
in Municipal Corpn. of Greater Bombay v. Indian Oil Corpn. Ltd. [1991 Supp (2) SCC
18] and held that the twin tests laid down by this Court to determine whether
assembly erection would result in immovable property or not were fully satisfied
in the facts of this case. It was concluded that the test laid down by the Supreme
Court is that if the chattel is movable to another place as such for use, it is mova-
ble but if it has to be dismantled and reassembled or re-erected at another place
for such use, such chattel would be immovable.
5.5.3 In the subject case, the Paver Blocks have to be dismantled and
disassembled from the vacant land before being erected or assembled elsewhere.
Applying the test laid down by the Supreme Court, the laying of Paver Blocks to
be used by the applicant for parking purposes results in ‘immovable property’. It
cannot be disputed that such Paver Blocks are not usually shifted from one place
to another, nor is it practicable to shift them frequently. The Paver Blocks, once
they are erected and assembled, continue to operate from where they are posi-
tioned and actually become a part of the parking facility. Having regard to the
manner in which these parking facilities are erected using Paver Blocks, they do
not answer the description of “goods”.
5.6 The Hon. Courts in our country have evolved the term ‘immovable
property’ when faced with the question of what constitutes movable and im-
movable property. Though not issued under the GST Act, we may mention here-
in the decision/order passed by the Hon. Bombay High Court in M/s. Bharti Air-
tel Ltd. (earlier known as Bharti Tele-Ventures Ltd.) v. The Commissioner of Central
Excise (2014 SCC OnLine Bom 907 : (2015) 77 VST 434) = 2014 (35) S.T.R. 865
(Bom.) wherein the Hon’ble High Court had disallowed credit on telecom tow-
ers, holding them to be immovable property. In the case of Tower Vision India Pvt.
Ltd. v. Commissioner of Central Excise (Adj), New Delhi & Ors. [2016 (42) S.T.R. 249
(Tri. - LB)], the Customs, Excise and Service Tax Appellate Tribunal relied on
Bharati Airtel when it disallowed credit on telecom towers to telecom infrastruc-
ture companies renting out such towers to telecom companies.
GST LAW TIMES  27th August 2020  93