Riveria Commercial Developers Limited. Vs Union of India & Ors. (Delhi High Court)
The Delhi High Court disposed of two connected writ petitions challenging Clauses (c) and (d) of Section 17(5) of the CGST Act, 2017, with one petitioner also challenging Circular No.28 (Flyer No.) dated 01.01.2018. The constitutional validity of the impugned provisions had already been settled by the Supreme Court in Chief Commissioner of Central Goods and Service Tax v. M/s Safari Retreats Private Ltd. , wherein the provisions were held constitutionally valid and the functionality test was recognised for determining whether a proposed structure is a plant on a case-by-case basis.
In one petition, the Court permitted the petitioner to approach the Adjudicating Authority with an appropriate application, with reference to Section 14 of the Limitation Act, 1963. In the other, the Court held that the impugned Circular had to be read in accordance with the Supreme Court’s judgment, with factual appreciation to be undertaken by the Adjudicating Authority. Both petitions were disposed of with liberty to approach the Adjudicating Authority in accordance with law.
FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT
1. This order shall dispose of two (02) connected Writ Petitions.
2. In essence, the principal relief being sought in both the Petitions is to strike down Clauses (c) and (d) of Section 17(5) (to be read as Impugned Provisions/IPs) of the Central Goods and Services Tax Act, 2017 [hereinafter referred to as ‘CGST’], with the Petitioner in W.P.(C) 4683/2020, raising an additional challenge against the validity of Circular No.28 (Flyer No.) dated 01.01.2018 (to be read as Impugned Circular/IC) issued by the Respondent No.4.
