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IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.S. Ramachandra Rao, C.J., Deepak Roshan, J.
M/s Indus Tower Limited - Petitioner
Versus
Union of India, represented through the Secretary, Ministry of Finance, Department of Revenue, P.O. and P.S. New Delhi, New Delhi and ors. – Respondents
W.P. (T) No. 6367 of 2024
Decided On : 13-02-2025
| Table of Content |
|---|
| 1. petitioner contests adjudication orders. (Para 2) |
| 2. input tax credit denial arguments. (Para 3 , 4) |
| 3. respondents agree to reconsideration. (Para 5) |
| 4. writ petition allowed; matter remitted. (Para 6) |
JUDGMENT :
1) Heard both sides.
2) In this writ petition, the petitioner has assailed order of adjudication in FORM GST DRC-07 dt. 30.08.2024 issued by the 5th respondent under section 73 of the CGST Act, 2017 read with Jharkhand GST Act, 2017 for financial year 2019-2020.
3) Sri V. Laxmikumaran, learned senior counsel appearing for the writ petitioner, contends that in the impugned order passed by the 5th respondent, he had denied benefit of input tax credit, contrary to the decision of Supreme Court in M/s. Bharti Airtel Ltd. vs. The Commissioner of Central Excise , Pune [Civil Appeal Nos. 10409-10410 of 2014 dt. 20.11.2024] reported in 2024 INSC 880 and further explained and applied in the judgment of the Delhi High Court in Indus Towers Limited vs. Union of India & Ors. [W.P.(C) No. 14710/2024 dt. 12.12.2024]. He contends that the Supreme Court and the Delhi High Court in both the aforesaid judgments have held that mobile towers are not “immovable properties”, that they can be treated as “goods” and also as “inputs” used for providing output service of telecommunication, that they do not fall within the ambit of section 17(5)(d) of the CGST Act, and input tax credit cannot be denied.
4) He also fairly contends that the 5th respondent did not have the benefit of these two judgments when he passed the impugned order on 30.08.2024, and prays that the matter be remitted to the said respondent for reconsideration of the issue in the light of the decisions (referred to supra).
5) Counsel for the respondents states that they have no objection if the impugned order is set-aside and the matter is remitted back to the 5th respondent for fresh consideration in the light of the aforesaid two judgments.
6) Accordingly, this writ petition is allowed. The impugned order dated 30.08.2024 passed by the 5th respondent is set-aside. Matter is remitted back to the 5th respondent to consider afresh in the light of the above judgments. The said reconsideration shall be done after hearing both parties and a fresh order be passed within three months, from the date of receipt of a copy of this order.
AI
Input tax credit cannot be denied for mobile towers as they are classified as goods and not immovable property, per established legal precedents.
Telecommunication towers are considered movable property and qualify for input tax credit, as they do not meet the criteria for immovable property under Section 17(5) of the CGST Act.
Towers and shelters used in telecommunication qualify as 'inputs' under CENVAT Rules, allowing for credit claims despite being classified as immovable property.
Mobile towers and prefabricated buildings qualify as capital goods and inputs under CENVAT Rules, allowing mobile service providers to claim CENVAT credit on excise duties paid.
Assessment orders must consider claims thoroughly and assign reasons; lack thereof warrants remand.
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