Lulu Mall ITC Claim on Construction: Kerala HC Orders Review

Lulu International Shopping Malls Pvt Ltd Vs Joint Commissioner (Kerala High Court)

Kerala High Court has ordered a reconsideration of Lulu International Shopping Malls Pvt Ltd’s input tax credit (ITC) claim related to the construction of its shopping malls. The court’s decision stemmed from a writ petition challenging a tax liability determination under Section 73 of the Central Goods and Services Tax Act, 2017 (CGST Act). Lulu Mall, engaged in retail, leasing, and wholesale trading, had claimed ITC on works contract services, which the respondent deemed ineligible, leading to a show cause notice and subsequent demand order.

The petitioner argued that the respondent’s order was erroneous, particularly in light of the Supreme Court’s ruling in Chief Commissioner of Central Goods and Service Tax & Ors. v. M/s Safari Retreats Private Ltd. & Ors (2024 INSC 756). This Supreme Court precedent clarified the scope of Section 17(5)(d) of the CGST Act, stating that a building could be classified as “plant or machinery” if it’s essential for the business, requiring a factual determination based on the business’s nature and the building’s role. The petitioner also pointed to alleged inconsistencies in the respondent’s findings regarding certain invoices and the ITC reported in GSTR-3B and GSTR-9 forms, citing CBIC instructions.