Immovable Property under GST – Definiton | Case Laws | Exceptions

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  • Last Updated on 1 May, 2025

Immovable Property under GST

Under the GST law, the term "immovable property" is not specifically defined, so its meaning is derived from other statutes such as the General Clauses Act, 1897 and the Transfer of Property Act, 1882. As per these laws, immovable property includes land, benefits arising out of land, and things attached to the earth or permanently fastened to anything attached to the earth.

Table of Contents

  1. Definitions of Immovable Property
  2. Understanding the Degree of Attachment
  3. Understanding the Test of ‘Object of Attachment’
Check out Taxmann's GST on Works Contract & Other Construction/EPC Contracts which simplifies the GST complexities for works contracts, construction, and EPC projects, incorporating the latest amendments from the Finance Act 2025. It offers sector-specific insights for real estate, oil & gas, and manufacturing alongside practical case studies, landmark judgments, and litigation strategies. Coverage includes liquidated damages, security deposits, anti-profiteering, and valuation, making GST law more accessible. Flowcharts, checklists, and user-friendly explanations equip professionals to anticipate disputes and optimise compliance.

1. Definitions of Immovable Property

Immovable property becomes an important prerequisite for being qualified as a ‘works contract’ under GST since the contract must be for one of the fourteen specified activities (as specified in the definition of ‘works contracts’) directly pertaining to an immovable property. However, whether the said activity is directly pertaining to an immovable property or not is an important factual aspect which needs to be examined on a case-by-case basis. We will discuss a couple of practical case studies in this context later in this chapter to illustrate this point.

The expression ‘immovable property’ has not been defined under the Goods and Services Tax Act. Accordingly, reference may be made to the relevant definitions provided in the General Clauses Act, 1897 and the Transfer of Property Act, 1882.

Section 2 of the General Clauses Act, 1897 –

‘Immovable property shall include land, benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth.

Section 3 of the Transfer of Property Act, 1882 –

Immovable property does not include standing timber, growing crop or grass.

“Attached to the earth” means –

(a)  rooted in the earth, as in the case of trees and shrubs;

(b) embedded in the earth, as in the case of walls or buildings or

(c) attached to what is so embedded for the permanent beneficial enjoyment of that to which it is attached.’

From a plain reading of the statutory definitions of the term “immovable property” referred to above, it is manifest that things attached to the earth or permanently fastened to anything attached to the earth are not movable but immovable property. The fundamental tests for determination of immovable property which are implicit in the above definitions are as follows —

  1. The degree of attachment should be such as to partake the character of the attachment of trees or shrubs rooted to earth or walls or building embedded in that sense;
  2. The object and intent of the attachment should be for the permanent beneficial enjoyment of the immovable property to which it is attached.

Each of these fundamental tests are discussed in greater detail below –

Taxmann's GST on Works Contract & Other Construction/EPC Contracts

2. Understanding the Degree of Attachment

Understanding ‘degree or extent of attachment’ – Whether dismantling of the chattel from the attachment would lead to damage – judicial precedents.

The degree or extent of attachment is an important element for determining whether the chattel is a good or an immovable property – for when a chattel is so attached that it cannot be removed without great damage to the chattel then the same would partake the character of an immovable property. Thus, the relevant degree or extent of attachment which necessitates a conclusion that the structure becomes an immovable property is a question of fact dependent on the circumstances of each case.

In this regard, we have culled out the judicial precedents in relation to this test in the paragraphs below –

(a) In Municipal Corporation of Greater Bombay v. Indian Oil Corporation Ltd. [1991 Suppl. (2) SCC 18], the Hon’ble Supreme Court held that a petrol tank, resting on earth on its own weight without being fixed with nuts and bolts, had been erected permanently and was an immovable property, by employing the test of permanency. The relevant para is as below –

“32. The tanks, though, are resting on earth on their own weight without being fixed with nuts and bolts, they have permanently been erected without being shifted from place to place. Permanency is the test. The chattel whether is movable to another place of use in the same position or liable to be dismantled and reerected at the later place? If the answer is yes to the former it must be a movable property and thereby it must be held that it is not attached to the earth. If the answer is yes to the latter it is attached to the earth……….”

(b) Similarly, in CCE v. Josts Engineering Co. Ltd. [2002] taxmann.com 93 (SC), the Hon’ble Supreme Court affirmed the Tribunal’s findings that the outside portions of the spray paint booth structure were embedded to the earth and could not have been dismantled without damaging the system and hence the said system was an immovable property. In this regard, the relevant portion of the Tribunal’s decision which lays down the fundamental principles for determination of immovable property are reproduced below –

“13. We have considered the rival submissions. The case of the parties have been fully understood. As stated in the earlier portion of the order the photograph of the plant clearly shows that the outside portions of the structure are embedded to the earth. It can never be dismantled without damaging the portion and the system which is touching the earth and the system cannot work thereafter…..

14. The Counsel has attacked the findings on the basis of the fact that they have filed classification lists in a proper way as well as the decision of the Supreme Court in Mittal Engineering Co. case. When we compare the nature of the goods as at page 63 of the Paper book we find a huge metal structure which is having elevated side portion which are embedded to earth by means of bolts which are guinted or permanently fixed to earth by concrete. If this is not immovable property what is a immovable property?………..”

(c) In CCE Mumbai v. Hutchison Max Telecom 2008 (224) ELT 191 (Bom.), the Hon’ble Bombay High Court held that the transmission apparatus installed in BTS site was an immovable property as they are embedded in earth or on a building and could not have been shifted without resultant damage. The relevant paragraph is reproduced below –

“9. The facts on record would indicate that the equipments erected are embedded in the earth or on a building. The Tribunal noted that revenue does not contest or dispute the fact that whenever BTS/BSC site has to be relocated, all the equipments like BTS/BSC, Microwave Equipment, batteries, control panels, air-conditioners, UPS, tower antennae are required to be dismantled into individual components, then they are to be moved from the existing site and reassembled at new site. This involves damages to certain parts like cable trays, etc. which are embedded/fixed to the Civil structure as also the BTS microwave equipment itself. All the components of the new product cannot be shifted as an illustration the room housing the equipment. This act of dismantling from the permanent site would render such goods not marketable. Apart from that the goods cannot be reerected as in the previous place as the requirement of each place is different.”

(d) Further, a solar powered electric fence system was held not to be a movable good in the case of Ibex Gallagher Pvt. Ltd. v. CCE [2008] taxmann.com 862 (Bang.-CESTAT) Bangalore 2008 (231) ELT 580 (Tri.-Bang.). The relevant paragraph is reproduced below –

“6.1 Our view is that the solar powered electric fence cannot be called either as a machine or equipment or appliance. We can only call it as a system containing various components which are connected with each other for a specific purpose. It is only a system. The individual component like energizer, battery, insulators, wires, steel rod, etc., may fall under different Chapters of the Central Excise Tariff but together they form only a fence. In any case, a fence is specific to a particular area. The way a fence is erected depends upon the geometry of the said area. If a fence is formed in a particular area, the same thing cannot be shifted and used in another area without dismantling and also without adding some more components or diminishing the original components. That is so, because the geometries of two areas may not be identical. At this stage, we have to refer to Para 4(vi) of the Board’s Circular dated 15-1-2002. We reproduce the last sentence “if the goods are incapable of being sold, shifted and marketed without first being dismantled into component parts, the goods would be considered as immovable and therefore not excisable to duty”. If an electric fence has to be shifted, then the entire thing cannot be just removed without being dismantled into component parts. This is obvious from the various components of the electric fence. We cannot say that only for ease of transportation, the components are removed. It is very clear that the corner posts are grouted to the earth. These posts are also part of the electric fence. Grout means a thin liquid mortar for filling gaps and in tiling. The verb grout means to provide or to fill with grout. When something is grouted, it is obvious that it is permanently fixed to earth.”

From a perusal of the Hon’ble Tribunal’s findings in the aforementioned case, it becomes clear that since the corner posts of the electric fence had been grouted to the earth, the electric fence partook the character of an immovable property. Thus, since the electric fence could not have been removed without permanent damage to the system the same was held to be embedded to the earth in the nature of an immovable property.

Given the above jurisprudence, it becomes clear that if items assembled or erected at site and attached by foundation to earth cannot be dismantled without substantial damage to its components and thus cannot be reassembled, then the items would not be considered as movable.

Exceptions

However, there are certain exceptions to the general rule encapsulated in the preceding paragraph which have been detailed in the succeeding paragraphs.

(a) In CCE Ahmedabad v. Solid and Good Construction Works 2010 (252) E.L.T. 481 (SC), the Hon’ble Supreme Court held that an Asphalt Drum Mix Plant was not per se immovable and becomes immovable only when embedded in earth. Further, it was held that the attachment of the plant with nuts and bolts was intended to provide stability and prevent vibration and the attachment, as such, was easily detachable from the foundation and not permanent.

“19.…… Attachment of the plant in question with the help of nuts and bolts to a foundation not more than 1½ feet deep intended to provide stability to the working of the plant and prevent vibration/wobble free operation does not qualify for being described as attached to the earth under any one of the three clauses extracted above. That is because attachment of the plant to the foundation is not comparable or synonymous to trees and shrubs rooted in earth. It is also not synonymous to imbedding in earth of the plant as in the case of walls and buildings, for the obvious reason that a building embedded in the earth is permanent and cannot be detached without demolition. Embedding of a wall in the earth is also in no way comparable to attachment of a plant to a foundation meant only to provide stability to the plant especially because the attachment is not permanent and what is attached can be easily detached from the foundation………”

(b) In Sirpur Paper Mills Ltd. v. CCE, Hyderabad [1997] taxmann.com 265 (SC), the Hon’ble Supreme Court held that paper making machine assembled and erected at site by embedding it in a concrete base was not an immovable property since embedding in the base was to ensure wobble free operation. Further, the Court held that the machine was capable of being sold after being dismantled from its base.

(c) In Essar Telecom Infrastructure Pvt. Ltd. v. Union of India [2012] 21 taxmann.com 219/35 STT 453 (Kar.), the Hon’ble Karnataka High Court held that though telecom towers are fixed to the earth, except for the platform to fix the equipment/tower, the structure did not acquire character of immovable property. The relevant paragraph is reproduced below —

“11. Though an opinion is formed by the Bombay High Court based on Triveni Engineering’s case that the erection of towers cannot be treated as mobile and it is fixed to the earth, in my opinion, it cannot be accepted in the context to treat it as immovable property to contend that it is only in the form of service rendered and not transfer of right to use the goods. The definition provided under the provisions of S. 3 of the Transfer of Property Act or under the Sale of Goods Act if interpreted in so far as this type of equipment fixed to the earth or on the building, definitely it can be dismantled and replanted elsewhere. Except the civil work of putting up a platform to fix the equipment/tower, the structure does not acquire the character of immovable goods to detract the application of the VAT Act. Though it appears, for outward appearance, a semblance of service is being rendered but, factually it is a super structure in the form of movable.…..”

Similarly, in Vodafone Mobile Services v. Commissioner of Service Tax (2018-VIL-506-DEL-CE), one of the questions before the Hon’ble Delhi High Court was whether towers, shelter and accessories used by the Appellants for providing telecom services are immovable property.

The Court resorted to the established tests for determination of immovability and observed that the entire tower and shelter was fabricated in the factories of the respective manufacturers which were supplied in Completely Knocked Down (CKD) condition. The Court held that such towers were merely fastened to the civil foundation to make it wobble free and ensure stability which can be bolted and unbolted, assembled and reassembled, located and relocated without any damage. That is to say, the towers and structures were fastened to the earth only to provide stability. Consequently, it was held that towers, were not in the nature of immovable property.

(d) In National Radio & Electronics Co. Ltd. v. CCE, Bombay [1995] taxmann.com 297 (Cegat – New Delhi), the Hon’ble Tribunal acceded to the Revenue’s argument and held that a UPS system was not an immovable property as the UPS system, even on assembly can be dismantled and taken to another place.

(e) CBEC Circular 58/1/2002-CX dated 15-1-2002 CBEC had clarified that if goods which are capable of being sold without dismantling are actually dismantled into their components for ease of transportation then such goods cannot be held to be immovable property. The relevant portion is reproduced below –

“(vi)  If any goods installed at site (example paper making machine) are capable of being sold or shifted as such after removal from the base and without dismantling into its components/parts, the goods would be considered to be movable and thus excisable. The mere fact that the goods, though being capable of being sold or shifted without dismantling, are actually dismantled into their components/parts for ease of transportation etc., they will not cease to be dutiable merely because they are transported in dismantled condition. Rule 2(a) of the Rules for the Interpretation of Central Excise Tariff will be attracted as the guiding factor is capability of being marketed in the original form and not whether it is actually dismantled or not, into its components. Each case will therefore have to be decided keeping in view the facts and circumstances, particularly whether it is practically possible (considering the size and nature of the goods, the existence of appropriate transport by air, water, land for such size, capability of goods to move on self propulsion ships etc.) to remove and sell the goods as they are, without dismantling into their components. If the goods are incapable of being sold, shifted and marketed without first being dismantled into component parts, the goods would be considered as immovable and therefore not excisable to duty.”

Basis the above discussion, the following points emerge –

  • It is important to ascertain the degree and extent of attachment of the chattel to the immovable property. If the chattel can be removed from the base and sold then the same shall not be treated as immovable property.
  • If the assembled goods have been attached to the earth only for the effective functioning of the machinery itself, the same will not qualify as immovable property.
  • If the assembled goods are dismantled only for ease of transportation and without substantial damage then such goods shall not qualify as immovable property.
  • In cases of towers, except for the civil work of putting up a platform to fix the equipment/tower, the super structure does not acquire the character of immovable goods.

3. Understanding the Test of ‘Object of Attachment’

Understanding the test of ‘Object of attachment’ – Whether the object of the attachment of the chattel is the beneficial enjoyment of the land or the chattel itself

The second consideration for determination of the character of the attachment is the object or the intention of the attachment – for an article may be firmly fixed to the land, yet circumstances may be such as to show that it was never intended to be for the enjoyment of the land but was for the mere enjoyment of the chattel itself. In the paragraphs below, we have culled out the judicial precedent which exposit the extent of this rule.

(a) In the case of CCE, Hyderabad v. Solid and Good Construction Works (cited supra) wherein the Hon’ble Supreme Court held that if the annexation is with the object of permanent beneficial enjoyment of the land then it becomes an immovable property. The relevant paragraph is as follows –

“23. The courts in this country have applied the test whether the annexation is with the object of permanent beneficial enjoyment of the land or building. Machinery for metal shaping and electroplating which was attached by bolts to special concrete bases and could not be easily removed, was not treated to be a part of structure or the soil beneath it, as the attachment was not for more beneficial enjoyment of either the soil or concrete. Attachment in order to qualify the expression attached to the earth, must be for the beneficial attachment of that to which it is attached. Doors, windows and shutters of a house are attached to the house, which is imbedded in the earth. They are attached to the house which is imbedded in the earth for the beneficial enjoyment of the house. They have no separate existence from the house. Articles attached that do not form part of the house such as window blinds, and sashes, and ornamental articles such as glasses and tapestry fixed by tenant, are not affixtures.”

(b) In Sirpur Paper Mills Ltd. v. CCE, Hyderabad  (cited supra), the Hon’ble Supreme Court held that paper making machine assembled and erected at site by embedding it in a concrete base was not an immovable property since embedding in the base was to ensure wobble free operation.

(c) In the case of Perumal Naicker v. T. Ramaswami Kone AIR 1969 Mad. 346; the Hon’ble Madras High Court held that an engine mounted on cement base attached to the earth was not an immovable property on account of the fact that the engine had not been attached for the beneficial enjoyment of the land but for the engine itself. Thus, relying on the object of the attachment test the Court concluded as follows —

“4. ……..we are of opinion that by the very nature of things, it is not possible, to our minds, to regard the Fetter Engine as immovable property merely because for the beneficial enjoyment of it during its use, it is fixed to the earth in that manner, the engine cannot be used except by fixing it to the earth. Therefore, it cannot be said that the intention, as disclosed by the fixture, is to make it a permanent part of the earth and so it is immovable property. The nature of the engine and the purpose of its fixtures, both show that it cannot be regarded as immovable property. No doubt, the evidence in this case is that the Fetter engine stood affixed to the earth from 1952. But this is because during that period the engine was used for that purpose the fixture was necessary. On that account, the fixture cannot be viewed as a permanent one.”

(d) Further, reliance may also be placed on the decision of the Hon’ble Calcutta High Court in the case of Jnan Chand Chugh v. Jugal Kishore Agarwal AIR 1960 Cal 331 where the machinery for metal shaping and electroplating which was attached by bolts to special concrete bases and could not be easily moved was still held not to be an immovable property. The relevant paragraph is reproduced below –

“11………. It cannot be said that they are rooted in the earth nor can it be said that they are imbedded in the earth. It may be that the legs of one or two of the machines in this case look as if they have become imbedded in the earth as a result of the raising of the floor but there is no evidence before me that the idea or intention of the mortgagor in this case was to imbed them in the earth so that they could not be removed without breaking the concrete foundation. Except in the case of the furnace which appears to have been built in the soil itself all the other machinery appear to me to have been put on the floor of the factory on beds of concrete prepared for them and fastened down to the concrete bed by bolts and nuts, the bolts being firmly fixed in the concrete and passed through and projected beyond the holes in the machines. The object of the fastening was only to prevent the machines from vibrating in as much as they have to be worked by electric power conveyed to them from exterior sources. Nor, in my opinion, can it be said that the machines were attached to the concrete foundation laid in the earth for the permanent beneficial enjoyment either of the concrete foundation or of the soil in which the same was laid. The object of fastening the machinery to the land was not for the permanent beneficial enjoyment of the land but for the purpose of obtaining steadiness in the machinery while working for polishing and shaping things and earning profit thereby. ………….”

(e) In Bamadev Panigrahi v. Monorama Raj AIR 1974 AP 226, the Hon’ble Andhra Pradesh High Court held that a cinema projector and a diesel oil engine fixed on earth for the purposes of exhibiting shows in a touring cinema are movable properties. The relevant paragraph is reproduced below –

‘On a careful consideration of the entire facts and circumstances, we are of the firm view that the intendment, object and purpose of installing the cinema equipment in question, was only to have the beneficial enjoyment of the very equipment during the period of the lease or mortgage. That apart, the diesel oil engine and the cinema projector are not rooted in the earth as in the case of trees and shrubs, or imbedded in the earth as in the case of walls or buildings, or attached to what is so imbedded for the permanent beneficial enjoyment of that to which they are attached. In the circumstances, the equipment or machinery must be held to have not been attached to the earth within the meaning of the expression “attached to the earth” under Section 3 of the Transfer of Property Act. The machinery is not only not attached to the earth, but also not permanently fastened to anything attached to the earth. Hence, the machinery in question must be held to be movable property but not immovable property.’

(f) In I.G.E. India Ltd. v. Collector of Central Excise [1990] taxmann.com 492 (Cegat-New Delhi) (SB) the Hon’ble Tribunal held that X-ray equipment including X-ray table floor to ceiling column, tube stand, X-ray generators, high voltage cables, etc. which are fixed to the earth would not qualify as immovable property.

“47. It is contended that since X-ray table floor to ceiling column, tube stand, X-ray generators and other things are fastened to the earth and the X-ray tube units and high voltage cable are fitted the X-ray equipment is immovable property and, therefore not excisable goods.

**                                      **                                   **

50. From the above it follows, by nature, if the property is movable and for its beneficial use or enjoyment it is necessary to fix it on earth though permanently i.e. when it is in use, it is not immovable property. In the instant case the components/parts both essential and non-essential are fixed to earth for its beneficial enjoyment and by fixing it to the earth it does not become part of the earth, and therefore, it is not immovable property. It is also not disputed that X-ray equipment can be dismantled and shifted. From the records we find that the dismantling charges were also collected from one of the customers.

51. Therefore, we are of the view that X-ray equipment is not immovable property.”

(g) In the advance ruling in case of ABB India Ltd. [TS-200-AAR-2020], the applicant (i.e., ABB) had entered into a contract with Rail Vikas Nigam Ltd. for design, supply, installation, testing and commissioning of a computer based SCADA System for smooth operation, monitoring, control of the power supply system on the Metro Corridor. The work involved inter alia site survey, concept plan, extensive wiring and laying of cables, civil works as required, and testing and commissioning of the system.

The question before the advance ruling authority was whether the same qualified as being works contract and whether the supply to RVNL qualified as a supply pertaining to railways, including metro leviable to GST at concessional rate.

The authority held that the erection and commissioning of SCADA System involved attaching cables and other electrical equipment to the earth with no intention of removing or shifting them in the foreseeable future. Moreover, the parts are so interlinked to constitute a functioning SCADA System that none can be moved separately or without causing substantial damage to the goods attached to earth. The movable character of the goods like cables and other equipment, therefore, becomes extinct. ABB’s supply was thus held be erection and commissioning of an immovable property under GST and therefore a works contract.

Further, since the operator using the SCADA interface sends instructions to the Remote Terminal Unit, which accordingly controls the signals, lights and other electrical equipment of the metro it was held to be a supply pertaining to railways, including metro.

Given the above discussion, it becomes clear that when a system is attached to the earth or attached to what is embedded in the earth, but, such attachment is only for the benefit of the system and not for the beneficial enjoyment of the land/immovable property itself, then the same will not be an immovable property under GST.

The foregoing aspect appears to have been lost sight of, in one of the orders of the Maharashtra Appellate Authority of Advance Ruling (“AAAR”) in the case of Giriraj Renewables Private Limited [2018-VIL-11-AAAR] [2018] 97 taxmann.com 510/70 GST 246 (AAAR-Karnataka) where, in para 43, while determining if a solar power plant would qualify as an immovable property under GST, the AAAR held that –

“It may be true that the solar power plant can be moved from one place to other but for the enjoyment of the equipment or for the smooth generation of electricity, the panel is required to be affixed to the earth. Also of paramount importance here is the ‘object of annexation’. Is there an intent to move the plant from one place to other? Of course not. There is no feasibility in moving the plant from one place to another. There can be no intention of both the parties to move the plant from one place to another. The fact that it can be moved is immaterial.”

The AAAR, even while quoting the test of ‘object of annexation’, it is humbly submitted, applies it wrongly. If applied properly, one would emphasize on the fact that such attachment of a solar power plant to the civil foundations on earth is only for the benefit of the plant and not for the beneficial enjoyment of the land/immovable property itself, and consequently, such solar power plants will not be an immovable property under GST; especially since, there was a clear chartered engineer certificate in this case, attesting to moveability of such solar power plant.

The Andhra Pradesh High Court in Sterling and Wilson Private Limited v. Joint Commissioner and Others [TS-07-HC(AP)-2025-GST]/[2025] 170 taxmann.com 539 (AP) has held a solar power generating system is not an immovable property under GST. Consequently, the same would not be a ‘works contract’ but a composite supply of goods. The Court held that the solar power plant is not trees or shrubs, which are rooted in earth or a structure embedded in the earth. The solar power module is attached to the civil foundation, which is embedded in the earth.

The Court went on to note that the property, attached to a structure embedded in the earth, would become immovable property under GST only when such attachment is for the permanent beneficial enjoyment of the structure, embedded to the earth.

In the present case, the Court noted that the civil foundation is embedded in the earth. However, the solar modules and the Solar Power Generating System have not been attached to the civil structure for the purpose of better enjoyment or beneficial enjoyment of the civil foundation. On the contrary, the civil foundation has been embedded on earth for better permanent and beneficial enjoyment of the Solar Power Generating Station.

Applying the aforesaid test, the Court held that the Solar Power Generating System would not answer the description of immovable property under GST.

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Taxmann Publications has a dedicated in-house Research & Editorial Team. This team consists of a team of Chartered Accountants, Company Secretaries, and Lawyers. This team works under the guidance and supervision of editor-in-chief Mr Rakesh Bhargava.

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Author: Taxmann

Taxmann Publications has a dedicated in-house Research & Editorial Team. This team consists of a team of Chartered Accountants, Company Secretaries, and Lawyers. This team works under the guidance and supervision of editor-in-chief Mr Rakesh Bhargava.

The Research and Editorial Team is responsible for developing reliable and accurate content for the readers. The team follows the six-sigma approach to achieve the benchmark of zero error in its publications and research platforms. The team ensures that the following publication guidelines are thoroughly followed while developing the content:

  • The statutory material is obtained only from the authorized and reliable sources
  • All the latest developments in the judicial and legislative fields are covered
  • Prepare the analytical write-ups on current, controversial, and important issues to help the readers to understand the concept and its implications
  • Every content published by Taxmann is complete, accurate and lucid
  • All evidence-based statements are supported with proper reference to Section, Circular No., Notification No. or citations
  • The golden rules of grammar, style and consistency are thoroughly followed
  • Font and size that's easy to read and remain consistent across all imprint and digital publications are applied