Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2020 (12) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (12) TMI 317 - AT - Service TaxRefund of Service Tax - Service Tax paid for construction of residential complex before 30.06.2012 - rejection on the ground that appellant failed to establish that it comprised of less than 12 residential units so as to be covered under exemption clause - October, 2011 and March, 2012 - principles of unjust enrichment - appellant also agreed to discharge the tax liability during investigation. Non-establishment of number of units by the appellant that was cited as the main ground in the Order-in-Appeal was not a ground in the show-cause notice - HELD THAT:- Meeting the requirement of law, which is the paramount consideration for establishment of tax liability, need not necessarily be made a ground in the show-cause notice since everyone is presumed to know the law/rules governing the affair of the State. Unjust Enrichment - HELD THAT:- Customers were not charged Service Tax for Bandra unit. Appellant agreed to discharge the tax liability during investigation - HELD THAT:- This issue which is raised by the learned respondent-department is hit by Rule 10 of the CESTAT Procedure Rule, 1982 as has not been argued during the hearing of the petition. Therefore, the only aspect that is required to be dealt in this appeal is the establishment of construction of less than 12 units by the appellant in the disputed complex. Thus, it can be inferred that because of availability of 13 floors, learned Commissioner (Appeals) had failed to reach at a conclusion that the complex had less than 12 residential units to admit refund as the said was not taxable. However, going by the Architect certificate at annexure 3, floor plan referred above and the full occupation certificate issued by the Executive Engineer (building proposal) of the Municipal Corporation of Greater Mumbai dated 02.08.2013 would clearly indicate that the complex comprised of 9 residential units, taking each duplex to be counted as one unit. Therefore, the appellant is entitled to get the refund sought for. Appeal allowed - decided in favor of appellant.
|