QUESTION

One of our client constructing movie theater. As per section 17(5) he is not eligible to get credit of Construction materials like cement, steel, sand, other construction materials & labour used/paid for construction of theater. Now, Is he eligible availed credit of of tax paid on purchase of Air condition & sound system, elevators, chairs to be used in theater as against amount collected for movie tickets in future.

Answer

Facts of the case: A Client constructing movie theater is not eligible to get credit of Construction materials like cement, steel, sand, other construction materials & labour used/paid for construction of theater. Now, Is he eligible to avail credit of tax paid on purchase of Air condition & sound system, elevators, chairs to be used in theater as against amount collected for movie tickets in future.

Law Applicable: SECTION 17 OF CGST ACT
(5) Notwithstanding anything contained in sub-section (1) of section 16 and subsection (1) of section 18, input tax credit shall not be available in respect of the following, namely:-

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(d) goods or services or both received by a taxable person for construction of an immovable property (other than plant or machinery) on his own account including when 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 alterations or repairs, to the extent of capitalisation, to the said immovable property;

Interpretation: Term Immovable property has not been defined in CGST Act. ... As per Section 3(26) of the General Clauses Act, 1897, immovable property includes “land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth”.

Thus as per section 17(5) ITC is not restricted on the items which can be removed and shifted to other place and can be considered as being not part of the immovable property like sound system, elevators, chairs, indoor units of the AC but not the pipe fitting and duct of the AC.

Conclusion
: ITC is restricted on goods & services used for construction of immovable property as per section 17(5). However ITC is not restricted on furniture, plant & machinery and movable items that are not attached to earth and can be removed and shifted to other place. Thus ITC will be eligible on Furniture (chairs), sound sytem, indoor units of AC but not on the pipe fitting and duct of the AC.(Reply dt.16-07-2020)