ORDER
This revision petition has been filed under Section 21(b) of Consumer Protection Act, 1986 against the impugned order dated 26.12.2013, passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (hereinafter referred as 'State Commission') in Appeal No. FA/356/2011 and other cases, vide which, the appeal filed by the present petitioner, against the order dated 13.7.2011 of the District Consumer Disputes Redressal Forum, Kolkata, Unit-II in Consumer Case No.1379/2009, was dismissed and the said order of the District Forum, dismissing the consumer complaint, was upheld.
2. Briefly stated, the facts of the case as alleged in the consumer complaint filed by the present petitioner before the District Forum are that the petitioner/complainant purchased Flat No.2A, Regent Enclave, VIP Road, Kaikhali, Kolkata from the opposite party/builder (OP), upon which the OP charged and collected service tax amounting to Rs.55,408/-, vide Receipt No.2550 dated 3.7.2006. The OP builder charged the said tax from a number of other allottees as well and deposited an amount to Rs.32,07,510/-, so collected with the Government Authorities in the Service Tax Department. Subsequently, it came to notice that the said tax had been wrongly collected from the allottees and was liable to be refunded. The OP builder made claim for refund of service tax from the concerned Authority, but the Assistant Commissioner of Service Tax Department, vide order dated 12.9.2008 rejected the refund application. The OP builder filed appeal against the said order of the Service Tax Authority,
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but the Appellate Authority rejected the said appeal, vide order dated 29.1.2010. The petitioner/complainant filed consumer complaint before the Consumer Fora, but the said complaint was dismissed by the District Forum as well as the State Commission, stating that there had been no deficiency in service on the part of the OP, because the amount collected by the OP as service tax from the allottees had been duly deposited with the Government Department. Being aggrieved against the concurrent findings of the consumer fora, the complainant is before this Commission by way of the present revision petition.
3. During the oral arguments as well as the written submissions filed by the petitioner/complainant, it was stated that the service tax of Rs.55,408/- had been wrongly charged by the OP developer. The petitioner came to know from an article published in the newspaper 'Telegraph' on 7.12.2007 that service tax was not payable on purchase of flat from a promoter/developer. Accordingly, he wrote to the OP on 28.12.2007, claiming refund of the service tax amount so collected. In turn, the OP builder filed an application for refund before the service tax authority. It was, however, rejected, vide order of that Authority dated 12.9.2008, saying that the application filed by the OP was not in proper format, the claim was not supported by relevant documentary evidence and also, the application for refund was time barred. An appeal made against this order of the Service Tax Authority was rejected by the Appellate Authority, vide order dated 29.1.2010. The learned counsel stated that the petitioner/complainant should not be made to suffer on account of mistake committed by the OP, promoter/developer and hence, he was entitled to the refund of the amount deposited by him alongwith interest.
4. The basic issue for consideration in the present case is, whether there has been deficiency in service on the part of the OP in any manner towards the petitioner/complainant in charging the service tax on the sale of the property and depositing the same with the Service Tax Authority. It has been stated in the written version filed by the OP that the Finance Act, 2005 contemplated the levy of service tax on construction of residential complexes w.e.f. 16.6.2005 and a notification to this effect was issued vide No.15/2005-ST dated 7.6.2005. Following the publication of the notification, there was confusion with regard to the applicability of service tax and on the issue whether the builder/promoter selling a residential unit, would be liable to pay service tax. The newspaper item published in the 'Telegraph' dated 7.12.2007 also shows that there was confusion on the issue regarding the service tax. The OP builder on their part, relying upon the notification issued, charged and collected the service tax from the flat owners and a total sum of Rs.32,07,510/- was duly deposited with the Asstt. Commissioner of Service Tax. However, vide circular dated 23.8.2007 bearing No.96/7/07/ST, it was clarified that service tax would not be payable by a promoter/builder, who sold the flats. Thereafter, they approached the Service Tax Authority for refund of the amount deposited, but their request had been rejected.
5. It is made out from the above version of the OP and also from the orders passed by the District Forum as well as the State Commission that since the developer had deposited the amount of service tax with the appropriate authority, it shows the bona fide conduct of the developer and hence, there was no deficiency in service on his part vis-à-vis the buyers of the property. There is no material on record to establish that the OP developer committed any mistake in this regard or received any gain by collecting the service tax from the buyers and depositing the same with the Service Tax Authority. I therefore, find that there is no illegality, irregularly or jurisdictional error in the orders passed by consumer fora below in coming to the
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conclusion that there was no justification to penalize the OP builder on that score.
6. Further, it has been held by the Hon'ble Supreme Court in the case, Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, 2011 (3) Scale 654 that in the exercise of revisional jurisdiction, the concurrent findings of the consumer fora below should be interfered only, if there was any patent error of jurisdiction or law. There is, therefore, no such justification for making any modification in the orders passed by the consumer fora below in the exercise of revisional jurisdiction. This revision petition is, therefore, ordered to be dismissed and the orders passed by the consumer fora below upheld. There shall be no order as to costs.
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DR. B.C. GUPTA
PRESIDING MEMBER
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