Jharkhand High Court
M/S Indus Tower Limited vs The State Of Jharkhand on 13 February, 2025
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (T) No. 2874 of 2024
M/s Indus Tower Limited, a limited company, having its principal place
of business at 3rd Floor, Le Desire Complex, 71 Circular Road, W No.
21, Lalpur, Ranchi, Jharkhand-834001, through its Authorized
Signatory Shri Nikhil Kumar, Aged about 51 years, Son of Shri Naresh
Prasad Singh, resident of Sumitra Sadan, Gaytri Nagar, P.O.
Sampatchak, P.S. Pakri, District Patna- 800020 (Bihar).
...... ..... .. Petitioner
Versus
1. The State of Jharkhand, through its Secretary, Department of State
Tax, having his Office at Project Building, P.O. Dhurwa, P.S. Dhurwa,
District-Ranchi.
2. The Commissioner of State Tax, Jharkhand Goods & Service Tax,
having his Office at Utpad Bhawan, Kanke Road, P.O. Gonda, P.S.
University, District Ranchi.
3. The Deputy Commissioner of State Tax, West Circle, Ranchi,
having its office at Court Compound, P.O. G.P.O., P.S. Kotwali,
District Ranchi.
4. The Central Board of Indirect Taxes & Customs, having its office at
North Block, P.O., P.S. & District New Delhi-110001, through its
Chairman.
5. The Chairperson, Goods and Services Tax Council, having its office
at 5th Floor, Tower II, Jeevan Bharti Building, Janpath Road, P.O. &
P.S. Connaught Place, District New Delhi 110001.
... ... ... Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellant: Mr. V. Lakshmikumaran, Sr. Advocate
Mr. Rahul Tangri, Advocate
Mr. Pratyush Kumar Jha, Advocate
Mrs. Ekta Jhunjhuwala, Advocate
Mr. Kunal Kapur, Advocate
For the State: Mr. Piyush Chitresh, A.C. to A.G.
For the CGST : Mr. PAS Pati, Sr.S.C.
Mr. Anurag Vijay, Jr.S.C.
Mr. Akshay Kumar, Advocate
Mr. Srijan, Advocate
---------
12 /Dated: 13.02.2025
1) Heard both sides.
2) In this writ petition, the petitioner has assailed order of
adjudication in FORM GST DRC-07 dt. 29.4.2024 issued by the
3rd respondent under section 73 of the CGST Act, 2017 read
with Jharkhand GST Act, 2017 for financial year 2018-2019.
3) Sri V. Laxmikumaran, learned senior counsel appearing for the
writ petitioner, contends that in the impugned order passed by
the 3rd 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; 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 3rd respondent did not have the
benefit of these two judgments when he passed the impugned
order on 29.4.2024 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 3rd respondent for fresh consideration in the light of
the aforesaid two judgments
6) Accordingly, this writ petition is allowed. The impugned order
dated 29.4.2024 passed by the 3rd respondent is set-aside.
Matter is remitted back to the 3rd 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.
(M.S. Ramachandra Rao, C.J.)
(Deepak Roshan, J.)
Sharda/MM/
Cp.02
