The Supreme Court on Wednesday dismissed the government’s review petition in the Safari Retreats case, reigniting the debate over input tax credit (ITC) eligibility under GST for commercial real estate.
In a landmark judgment, the Court upheld that ITC cannot be denied on construction costs if immovable property—like shopping malls—is used for taxable supplies such as leasing. The ruling introduced a functionality test, allowing credit where assets facilitate business operations.
According to tax experts, the Supreme Court’s refusal to entertain the review brings much-needed clarity and relief to the industry, particularly sectors such as real estate, infrastructure, and leasing, where blocked credit provisions have had a far-reaching impact.
Taxpayers must now assert their rightful claims, backed by judicial precedent and a comprehensive reading of the statute,” says Abhishek A Rastogi, Founder, Rastogi Chambers, who had argued on the constitutional validity before the Supreme Court.
However, the government’s attempt to nullify the ruling through a retrospective legislative amendment undermines judicial finality and introduces significant uncertainty. It may open the floodgates for litigation and erode taxpayer confidence.
“The industry now stands at a crossroads -- while the judgment offers clarity and relief, the retrospective amendment, if enacted, could dilute its benefit. Businesses must carefully monitor future legislative developments before relying on this ruling for ITC claims on leased properties,” says Rajat Mohan, Senior Partner, AMRG & Associates.
It must be noted that the GST Council’s 55th meeting proposed amending Section 17(5)(d) of the CGST Act, replacing “plant or machinery” with “plant and machinery” retrospectively from July 2017. The Centre claims this corrects a “drafting error,” but experts warn it undermines judicial authority.
Safari Retreats case deals with the eligibility of ITC for immovable property, particularly commercial properties like shopping malls meant for leasing/renting. Section 17(5)(d) of the CGST Act prohibits real estate companies from claiming ITC on the GST paid for goods and services used in constructing properties meant for their own purpose even if the same was rented out.