ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

Date : 21-03-2025 Heard, Mr. Saket Tiwary, learned counsel for the petitioner and Mr. Vivek Prasad, learned GP-7 for the State-

respondents.

CWJC No. 8482 of 2024

2. The petitioner in this writ application is aggrieved by and dissatisfied with the order dated 22.01.2024 (Annexure ‘P1’) passed by the Assistant Commissioner of State Tax, Kadamkuan Circle, Patna by which the petitioner has been directed to pay a sum of Rs. 59,810/- holding that the petitioner was ineligible for availing Input Tax Credit (ITC) for financial year 2021-2022.

CWJC No. 9107 of 2024

3. The petitioner in this writ application is aggrieved by and dissatisfied with the order dated 22.01.2024 (Annexure ‘P1’) passed by Assistant Commissioner of State Tax, Kadamkuan Circle, Patna by which the petitioner has been directed to pay the sum of Rs.23,45,996/- holding that the petitioner was ineligible for availing Input Tax Credit for financial year 2023-24 (April 2023 to July 2023).

CWJC No. 9122 of 2024

4. The petitioner in this writ application is aggrieved by and dissatisfied with the order dated 24.01.2024 (Annexure ‘P1’) passed by the Assistant Commissioner of State Tax, Kadamkuan Circle, Patna by which the petitioner has been directed to pay a sum of Rs.4,81,65,483.00/- holding that the petitioner was ineligible for availing Input Tax Credit for the financial year 2022-

23 (April 2022 to March 2023).

Brief Facts of the Case

5. In all these writ applications, a common question has arisen for consideration. The petitioner has constructed a warehouse which is made of brick and mortar structure to some height and thereafter, pre-fabricated structure, truss and iron shed/sheet etc. have been used for building the warehouse.

6. The petitioner has let out the said warehouse and received rent income from the lessees with whom the petitioner has entered into a lease agreement.

7. It is the case of the petitioner that he has let out the warehouse to the various companies dealing in consumable goods, they are e-marketing companies and whatever income the petitioner derives from rent would be liable to tax under the Bihar Goods and Services Tax Act, 2017 (hereinafter referred to as the ‘BGST Act, 2017’) only after availing the Input Tax Credit. For the financial year

2021, the petitioner claimed an Input Tax Credit of Rs. 30,102/-.

8. The Department has, however, taken a view that the warehouse is an immovable property (other than plant or machinery) and relying upon Section 17(5)(d) of the BGST Act, 2017, the Department has expressed its opinion that the petitioner cannot avail ITC against the construction of the warehouse.

9. From the facts revealed on the record, it appears that the petitioner was served with the show cause notice, copy of which has been enclosed with the writ applications. The show cause notice dated 04.11.2023 was replied by the petitioner in CWJC No. 8482 vide Annexure ‘P3’. The petitioner claimed that he has availed the ITC paid on purchase of civil construction materials as well as on purchase of pre-fabricated structures fitted/ mounted upon the civil structures so constructed and also against the equipment such as crane, lifter, air-conditioners, generators and other electrical items necessary for carrying out the warehouse activities.

10. It appears on reading of the impugned order (Annexure ‘P1’) that the Assistant Commissioner of State Tax has recorded that the tax payer was given several opportunities to make submissions in his favour. They were called upon to make available their defence but when they failed to do so, the Assistant Commissioner examined whatever papers were available on the record and found that the warehouse has been constructed not for the use of the petitioner but for renting it out. The judgment of the Hon’ble High Court of Orissa in W.P. (C) No. 20463 of 2018 in the case of M/s Safari Retreats Pvt. Ltd. and Another versus Chief Commissioner of Central Goods & Service