Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

Comments

Print   |    |  Comment

GST Update on ITC Admissibility on Detachable Glass Partitions 54/2020-21

GST Update on ITC Admissibility on Detachable Glass Partitions 54/2020-21

The ITC admissibility on goods that are affixed or attached to Earth is often the point of dispute as there are restrictions as regards availability of ITC on construction of immovable property under section 17(5) of the CGST Act, 2017. In the present update, we seek to analyse the recent decision pronounced by the Appellate Authority of Advance Ruling, Karnataka, in the case of M/s We work India Management Private Limited wherein the issue was regarding admissibility of ITC on the detachable sliding and stackable glass which can be moved and affixed anywhere. The AAR Karnataka vide order no. KAR ADRG 106/2019 dated 30.09.2019 ruled that detachable sliding and stackable glass partitions used in construction of workspaces are immovable in nature and hence are not eligible for Input tax credit. The AAR denied ITC by holding that the detachable sliding and stackable glass partitions are fixed to the building to create office space and amounts to construction of immovable property.

 

It was contended by the applicant that the credit restriction provided under section 17(5)(d) is with respect to “goods or services used for construction of immovable property” and so only the goods directly used in construction of immovable property are covered by this prohibition. The term “for” is specific and has narrow implication as compared to the term “in relation to” and since the term “for” is used, the ITC is not restricted.

The meaning of term immovable property was also interpreted and it was contended that as the term has not been defined under CGST Act, so reference needs to be made to section 3(26) of the General Clauses Act, 1897 which reads as follows-

Immovable property shall include land benefits to arise out of land and things attached to earth or, permanently fastened to anything attached to the earth.

 In view of the above, the appellant submitted that the detachable sliding and stacking glass partition are fixed with the help of nuts and bolts to wooden flooring only to provide stability and they are neither rooted to the earth not embedded in the earth nor attached for the permanent beneficial enjoyment as the same can be detached and re-used. Reliance was also placed on the advance ruling in case of Nipro India Corporation Private Limited and decision of Odisha High court in case of Safari Retreats Private Limited allowing the ITC of goods and services used for construction of shopping mall meant for letting out. It was also contended that said glass is not capitalised as immovable property in the books of accounts but is being capitalised under “furniture and fixture” in accordance with prevalent accounting standards.

The AAAR referred to the two-fold tests consistently used by many courts to decide whether the item is permanently attached to earth -

(i) the extent of annexation and

(ii) the object of annexation.

The object of annexation test lays down that where a movable property gets annexed with an immovable property, if the intent of annexation is of permanent beneficial enjoyment of the immovable property, then the fixture becomes an immovable property. If the intent of annexation is the beneficial enjoyment of the movable property, then the property still remains movable.

Applying the above tests to this case, it was held that the glass partitions are not permanent and are not embedded to the earth. They can be dismantled and moved according to the requirements of the clients of the appellant. Although they are fixed to the earth with nuts and bolts, they can be dismantled without demolishing the civil structure. Therefore, the detachable sliding and stackable glass partitions do not qualify as immovable property and are not hit by the restriction placed under section 17(5) of the CGST Act, 2017.

In our opinion, the reasoning adopted by the AAAR is in alignment with the ratio laid down and affirmed by the Supreme Court in the erstwhile Central Excise regime. In the Central Excise Laws, one of the prominent dispute was regarding permanence of machinery installed and its taxability because Central Excise Duty was levied on manufacture of excisable goods. It is well settled that goods are movable in nature and so if installation of machinery lead to emergence of immovable property, central excise duty was not leviable. The tests for determining whether the activity resulted in emergence of immovable property was laid down in various judgements rendered by the Supreme Court. Reliance may be placed on the following decisions:-

·        TRIVENI ENGINEERING & INDUS. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE [2000 (120) E.L.T. 273 (S.C.)]
 

·        T.T.G. INDUSTRIES LTD. VERSUS COLLECTOR OF CENTRAL EXCISE, RAIPUR [2004 (167) E.L.T. 501 (S.C.)]

·        COMMR. OF C. EX., AHMEDABAD VERSUS SOLID & CORRECT ENGINEERING WORKS [2010 (252) E.L.T. 481 (S.C.)]

In all the above cited decisions, it was concluded that if the installed machinery which is affixed to Earth gets the character of permanence and after its installation, it is not possible to relocate the said machinery to another place except by dismantling it as waste and scrap, then it can be considered that the said machinery is immovable property. However, on the contrary, if the machinery is affixed to Earth only for wobble free and stable operation and can be shifted to another location, the said machinery is movable and is not to be considered as immovable property. The analogy adopted by the Apex Court has been followed by the AAAR while determining whether the detachable glass is to be considered as immovable property for denying the input tax credit or not. Hence, the ratio of decisions rendered in erstwhile regime is of immense importance as they aid in arriving at conclusions in GST regime as well.

This is solely for educational purpose.

You can reach us at www.capradeepjain.com , at our facebook page on https://www.facebook.com/GSTTODAYBYPRADEEPJAIN/ as well as follow us on twitter at https://www.twitter.com/@capradeepjain21 .

 

 

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com