Page 96 - GSTL_27th August 2020_Vol 39_Part 4

422 GST LAW TIMES [ Vol. 39
the Hon’ble High Court of Orissa in the case of M/s. Safari Retreats Pvt. Ltd. and
Another v. Chief Commissioner of Central Goods & Services Tax & Others. In the said
case it is seen that the party had constructed malls which were given further on
lease. While holding that Section 17(5)(d) was not ultra vires, the Hon’ble Court
ruled that the party was eligible for credit.
5.10.6 We find that the department has filed an appeal against the said
judgment of the Hon’ble Orissa High Court, in case of Safari Retreats Private Lim-
ited v. Chief Commissioner of Central Goods & Services Tax, which is presently pend-
ing. The Hon’ble Supreme Court, in the case of Union of India v. West Coast Paper
Mills Ltd., as reported in [2004 (164) E.L.T. 375 (S.C.)], has held that once a special
leave to appeal is granted and appeal is admitted, correctness or otherwise of
judgment of Tribunal becomes wide open and in such appeal, Court is entitled to
go into both questions of fact and as well as law and correctness of judgment is
in jeopardy. Appeal is considered to be a continuation of suit and a decree be-
comes executable only when the same is disposed by the final Court of Appeal.
5.10.7 Hence in view of the above, we are of the opinion that since the
case of M/s. Safari Retreats Pvt. Ltd. is pending with the Hon’ble Supreme Court,
the same has not attained finality. We also find that the Hon’ble High Court has
given the relief to the party invoking its writ jurisdiction while categorically
holding that they are not inclined to hold Section 17(5)(d) to be ultra vires. There-
fore, we are not relying upon the judgment of the Hon’ble High Court.
5.11 In view of the above discussions, we are of the considered opinion
that the subject would qualify as immovable property and therefore Applicant
cannot avail ITC in the subject case as per Section 17(5)(d) of the CGST Act, 2017.
6. In view of the extensive deliberations as held hereinabove, we pass
an order as follows :
ORDER
7. For reasons as discussed in the body of the order, the questions is
answered thus -
Question. Whether applicant is entitled to avail input tax credit under
CGST/SGST Act in respect of taxes to be paid on its pur-
chase of Paver Blocks laid on the land?
Answer :- Answered in the negative.
_______

2020 (39) G.S.T.L. 422 (A.A.R. - GST - M.P.)
BEFORE THE AUTHORITY FOR ADVANCE RULING UNDER GST,
MADHYA PRADESH
S/Shri Manoj Kumar Choubey, Member (SGST) and Virendra Kumar Jain,
Member (CGST)
IN RE : METHODEX SYSTEMS PVT. LTD.
Order No. 08/2020, dated 5-3-2020 in Case No. 03/2020
Composite supply - Contract placed by Capital Project Administration
(CPA), a Department of the State Government for supply, installation and fix-
ing of customized furniture for newly constructed Mantralaya - Supply, instal-
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