In this petition, petitioner seeks for the following reliefs:
a. Issue a Writ of certiorari to quash the order in
original No. 62 / 2024 – 25 / GST / JC dated 09.12.2024
Annexure-P passed by second respondent.
b. On remand direct the respondents to apply the
functional test prescribed by the Apex Court in CC CG&ST
Vs. Safari Retreats (P) Ltc., (2024) 167 Taxmann.com 73
(SC) Annexure – K as under:-
“65(c) The question whether a mall,
warehouse or any building other than a hotel or a
cinema theatre can be classified as a plant within the
meaning of the expression “plant or machinery” used in
Section 175(5)(d) is a factual question which has to be
determined keeping in mind the business of the
NC: 2025:KHC:9482
registered person and the role that building plays in the
said business. If the construction of a building was
essential for carrying out the activity of supplying
services, such as renting or giving on lease or other
transactions in respect of the building or a part thereof,
which are covered by clauses (2) and (5) of Schedule II
of the CGST Act, the building could be held to be a
plant. Then, it is taken out of the exception carved out
by clause (d) of Section 17(5) of sub-section (1) of
Section 16. Functionality test will have to be applied to
decide whether a building is a plant. Therefore, by
using the functionality test, in each case, on facts, in
the light of what we have held earlier, it will have to be
decided whether the construction of an immovable
property is a “plant” for the purposes of clause (d) of
Section 17(5)”