Skip to main content

Collected Service Tax To Be Refunded By The Tax Dept. When Flat Booking Is Cancelled

Cause Title : Credence Property Developers Pvt. Ltd. vs Commissioner of CGST & Central Excise, Mumbai East, Service Tax Appeal No. 85780 of 2020, CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL MUMBAI

Date of Judgment/Order : 05.01.2023

Corum : Hon’ble Mr. Ajay Sharma, Member (Judicial)

Citied: 

Background

The Appellant is a builder providing Construction of Residential Complex Service. Two flats in Project Central Park which were booked through/from them by a buyer, but were later cancelled by the said buyer. Upon cancellation, the appellant refunded advance amount paid by the buyer along with Service Tax amount collected by them. The Appellant subsequently filed two refund claims under Section 11B of the Central Excise Act read with Section 83, Finance Act, 1994 amounting to Rs.1,09,367/- and Rs.55,123/- respectively seeking refund of Service Tax paid but Adjudicating Authority rejected the refund claim on the ground that the question of refund of service tax does not arise as the appellant has not paid any excess service tax but has paid only that much which they were liable to pay for consideration received by them on the invoice issued and in such a situation there is no provision for refund of service tax. Appeal filed by the appellant was also dismissed. Hence this appeal.

The Appellant argued that the issue regarding the cancellation of flat is considered as non provision of service as specified by Rule 6(3) of Service Tax Rules, 1994. Further in post-GST regime there is no mechanism available to claim such credits in GST returns and therefore the only remedy available with them is to claim refund of such service tax paid in excess and in the absence of any service the Appellant cannot be burdened with any Service Tax.

The Revenue Dept. reiterated the findings recorded in the impugned order and prayed for dismissal of Appeal.

Judgment

The Tribunal held that the first principle of service tax is that tax is to be paid on those services only which are taxable under the said statute. But for that purpose there has to have some ‘service’. Unless service is there no service tax can be imposed. 

As per Rule 66E(b), Service Tax Rules, 1994 in construction service, service tax is required to be paid on amount received from buyers towards booking of flat before the issuance of completion certificate by the competent authority and the booking can be cancelled by the buyer any time before taking possession of the flat. Once the buyer cancelled the booking and the consideration for service was returned, the service contract got terminated and once it is established the no service is provided, then refund of tax for such service become admissible.

The cancellation of booking coupled with the fact of refunding the booking amount along with service tax paid would mean as if no booking was made and if that is so, then there was no service at all. If there is no service then question of paying any tax on it does not arise and the department can’t keep it with them. When no service has been provided then the assessee cannot be saddled with any such tax and in that case the amount deposited by the assessee with the exchequer will be considered as merely a ‘deposit’ and keeping of the said amount by the department is violative of Article 265 of the Constitution of India which specifically provides that “No tax shall be levied or collected except by authority of law.”

The authorities below are not correct in their view that mere cancellation of booking of flats does not mean that there was no service. If the booking is cancelled and the money is returned to that buyer then where is the question of any service? Once it has been held that there is no service then by any stretch ‘Point of Taxation Rules, 2011’ can’t be roped in as for the applicability of the said Rules firstly providing of any ‘service’ by the Appellant has to be established. Therefore, the authorities below were not justified in invoking the Provisions of Point of Taxation Rules, 2011 for denying the refund.

Comments

Most viewed this month

Merits and the terms of contract are irrelevant for invoking of the bank guarantees

In Sabarkantha Annuity Pvt. Ltd. Vs. NHAI and Ors, the Petitioner filed before the Delhi High Court  petition under Section 9 of the Arbitration and Conciliation (Amendment) Act, 2015 with a prayer that, Respondents be restrained from acting upon the letter dated 15th September, 2017 or from invoking the Bid securities of the Petitioner to the tune of Rs. 10.93 Crores and also restraining the banks from honouring the invocation of said bank guarantees on behalf of Respondent No. 1 acting in terms of letter dated 3rd November, 2007. Petitioner has relied upon Clauses Nos. 9.1.1, 9.1.2 and 4.3 of the agreement dated 28th April, 2017 entered into between the parties to say the claim for damages since is not a claim for a sum presently due and payable and the respondent would be entitled to damages only on proof of loss, per Clause 4.3 of the agreement and hence is not entitle to the entire sum of bid security.  The Court found that Clause No. 9.1.2 speaks of an exclusiv...

Right of pre-emption under West Bengal Land Reform Act

In Rabindra Nath Kundu & Anr vs Sudhir Hira, Bijoy Krishna Hira being the owner in the suit plot, gifted to Santosh Kumar Hira demarcated 11 decimals of land vide deed of gift dated 27.4.2004 and the latter sold 9 decimals out of 11 decimals of land to Sudhir Hira the preemptor/opposite party no. 1 and well demarcated 1.65 decimals of land in the said plot along with several other plots were sold, transferred and conveyed to the preemptees/petitioners herein by a registered deed of sale dated 10.8.2010, the subject matter of preemption. It is argued on behalf of the preemptees that  the present opposite party no. 1/preemptor Sudhir Hira has no relationship of co-sharership with Santosh Kumar Hira opposite party no. 2 as the demarcated portion of land has been purchased. It is settled principle of law that partial preemption is not permissible and this was what the view adopted by this Hon'ble High Court is Surendra Vs. Abhimannu reported in (1980) 1 Cal LJ 135 whe...

CBI has no jurisdiction to probe affairs of medical college:HC

The Madras High Court has quashed charges against administrators of a medical college and dismissed CBI's petitions opposing discharge of officials of two other medical colleges, saying the investigation agency, or any other external agency for that matter, has no jurisdiction to probe the affairs of a medical college. Quashing the charges against the administrators of a medical college and dismissing CBI's petitions opposing the discharge of officials of two other medical colleges, Justice Aruna Jagadeesan said "contravention of rules and regulations may be an offence against the statute but is not a crime. There is no room or jurisdiction for any external agency to investigate the affairs of any medical institution coming within the purview of the Medical Council of India." In identical set of orders, all delivered on August 6, Justice Jagadeesan said "the shortfall in faculties and submissions of fake/forged documents would only disentitle the institution...