GST Authorities Issue Notices to Developers Over Rs 35 Billion Claims

These notices follow a Supreme Court ruling in October regarding Safari Retreats, which allowed commercial real estate companies to claim ITC on construction costs for rental buildings.

The GST authorities have sought the refund of ITC from the developers, arguing that the credits were wrongly claimed, and in some cases, they have blocked the credit claims altogether. A developer who received a notice mentioned that the notices were causing significant confusion among industry players.

The Supreme Court had upheld the constitutional validity of the relevant provisions while emphasizing that eligibility for ITC should be determined on a case-by-case basis, based on the "essentiality" and "functionality" tests. The Court also specified that two conditions must be met to avail tax credit: the property must either be leased out or sold before construction is complete, and it must qualify as "plant or machinery."

Authorities stated that credits claimed by real estate companies would be deemed eligible once it is conclusively established that they meet the functionality and essentiality tests outlined by the Supreme Court.

Many developers have already approached the court in response to these notices, claiming that tax officials are misusing the provision to block and deny ITC. Tax officials explained that they are carefully reviewing ITC claims to prevent potential misuse. Abhishek A. Rastogi, the founder of Rastogi Chambers, argued that a scientific and objective mechanism must be applied uniformly to determine eligibility, in order to avoid unjustly denying rightful credits.

He also pointed out that in certain cases, authorities are interpreting the Supreme Court's findings as applying only to the petitioners in the Safari Retreats case. He stated that this interpretation is flawed, as judicial precedents are binding and should be applied uniformly to all taxpayers in similar situations across the industry.