Rajasthan High Court - Jodhpur
M/S J.K. Lakshmi Cement Limited vs Union Of India (2025:Rj-Jd:11991-Db) on 4 March, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2025:RJ-JD:11991-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 11066/2020
M/s J.k. Lakshmi Cement Limited, Being A Company
Incorporated Under The Companies Act, 1956 And Having
Registered Office At P.o. Jaykaypuram, Dist. - Sirohi, Rajasthan-
307001 Through Its Authorized Signatory Shri Alok Kumar S/o
Shri Arun Kumar Singh Aged About 42 Years Resident Of
Lalbahadur Nagar, Jln Marg, Jaipur.
----Petitioner
Versus
1. Union Of India, Ministry Of Finance, Department Of
Revenue, North Block, New Delhi- 110001, Through Its
Secretary.
2. State Of Rajasthan, Finance Department, 1St Floor, Main
Building, Gate 2, Government Secretariat, Jaipr,
Rajasthan- 302005, Through Its Principal Secretary.
3. Central Gst And Excise Commissioner Sirohi (Range-Xxi),
Near Lic Office, Aburoad, District - Sirohi - 307026.
----Respondents
For Petitioner(s) : Mr. Abhishek Mehta
Mr. Mohan Singh
For Respondent(s) : Mr. Mahaveer Bishnoi, AAG
Mr. Uttam Singh Rajpurohit for
Mr. Mukesh Rajpurohit, Dy. SG
Mr. Rishabh Dadhich for
Mr. Rajvendra Saraswat
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE CHANDRA PRAKASH SHRIMALI
Order
04/03/2025
1. Learned counsel for the parties jointly submit that the
controversy involved in the present appeal is no more res-integra
and it is covered by the decision rendered by Hon'ble Apex Court
in the case of Chief Commissioner of Central Goods and
Services Tax & Ors. vs. M/s Safari Retreats Private Ltd. &
Ors., (Civil Appeal No.2948/2023) decided on 03.10.2024, the
operative part of the said judgment reads as follows:-
[2025:RJ-JD:11991-DB] (2 of 3) [CW-11066/2020]
"(64) As we are upholding the constitutional validity of
clauses (c) and (d) of Section 17(5), and as held earlier, its
plain interpretation does not lead to any ambiguity, the
question of reading down the provisions does not arise.
(65) Some of our conclusions can be summarized as
under:-
(a) The challenge to the constitutional validity
of clauses (c) and (d) of Section 17(5) and Section
16(4) of the CGST Act is not established;
(b). The expression "plant or machinery" used
in Section 17(5)(d) cannot be given the same
meaning as the expression "plant and
machinery" defined by the explanation to Section
17;
(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 17(5)(d) is a factual
question which has to be determined keeping
in mind the business of the 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) to 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).
(66) In the light of what we have held above, by setting
aside the impugned judgment in Civil Appeal Nos. 2948
and 2949 of 2023, the writ petitions are remanded to the
[2025:RJ-JD:11991-DB] (3 of 3) [CW-11066/2020]
High Court of Orissa for limited purposes of deciding
whether, in the facts of the case, the shopping mall is a
"plant" in terms of clause (d) of Section 17(5). Appeals are
partly allowed in above terms.
(67) While deciding these cases, we cannot make any
final adjudication on the question of whether the
construction of immovable property carried out by the
petitioners in Writ Petitions amounts to plant, and each
case will have to be decided on its merit by applying the
functionality test in terms of this judgment. The issue
must be decided in appropriate proceedings in which
adjudication can be made on facts. The petitioners are
free to adopt appropriate proceedings or raise the issue
in appropriate proceedings.
(68) The writ petitions are rejected subject to the
interpretation of clause (d) of sub-section (5) of Section 17
of the CGST Act made by us."
2. In light of the aforesaid submission made by learned
counsel for the parties, the present petition is dismissed in
light of and with the similar direction as given in the case of M/
s Safari Retreats Private Ltd. (supra). However, the liberty
granted by the Hon'ble Supreme Court to the petitioner in para
67 of the referred judgment remains available to the present
petitioner as well.
(CHANDRA PRAKASH SHRIMALI),J (DR.PUSHPENDRA SINGH BHATI),J
18-devrajP/-
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