Page 169 - GSTL_3rd September 2020_Vol 40_Part 1

2020 ] IN RE : P.K. MAHAPATRA 103
question qualify as “plant and machinery”. Once the items in ques-
tion qualify as “plant and machinery”, they stand excluded from the
meaning of “immovable property”. As a matter of fact, under the
CGST Act, 2017, even if the items in question are attached to earth,
they will qualify as “plant and machinery”. The relevant extracts of
the Section 17(5)(c) and Section 17(5)(d) are extracted herewith for
ease of reference :-
“17. (1) …..
(5) Notwithstanding anything contained in sub-section (1) of sec-
tion 16 and sub-section (1) of section 18, input tax credit shall not be
available in respect of the following namely :-
(c) works contract services when supplied for construction of
an immovable property (other than plant and machinery) ex-
cept where it is an input service for further supply of works
contract service;
(d) goods or services or both received by a taxable person for
construction of an immovable property (other than plant or ma-
chinery) on his own account including such goods or services or
both are used in the course or furtherance of business.
Explanation. - For the purposes of clauses (c) and (d), the expression
“construction” includes re-construction, renovation, additions or al-
terations or repairs, to the extent of capitalization, to the said im-
movable property;
………..
Explanation. - For the purposes of this Chapter and Chapter VI, the
expression “plant and machinery” means 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 foundation and structural supports but ex-
cludes
(i) land, building or any other civil structures;
(ii) telecommunication towers; and
(iii) pipelines laid outside the factory premises.
(e) That, from the above, it is pertinent to test whether the impugned
works are regarded as ‘plant & machinery’ or foundation or struc-
tural support of plant and machinery and does not fall in any of the
3 exclusions given in the Explanation.
(f) That, the order has not examined the meaning of ‘plant and ma-
chinery’ as provided in the Explanation but confined to examining
if it is movable or immovable property. It is submitted that even any
immovable property, once qualifies as ‘plant & machinery’, they
stand excluded from the restriction and the credit is eligible not on-
ly for plant and machinery but includes their foundation and sup-
porting structures.
(g) That, it is evident from para 5.15 of the impugned order, the scope
of work under the packages in question is completely misunder-
stood and misappreciated by the AAR. The Appellant submits the
observations of the AAR in the impugned order are incorrect for the
following reasons :-
GST LAW TIMES  3rd September 2020  185