Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2022 (9) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (9) TMI 217 - AT - Service TaxRefund of the service tax - construction of individual/independent residential houses - refund is hit by the principles of unjust enrichment or not - reverse charge mechanism - HELD THAT:- It is seen that a ‘residential complex’ has been defined to mean any complex comprising of a building or buildings, having more than twelve residential units; and a ‘residential unit’ has also been defined in Explanation (b) to mean a single house or a single apartment intended for use as a place of residence - the definition of a “residential complex” leaves no manner of doubt that it would be a complex comprising of a building or buildings, having more than twelve residential units. In other words a complex may have a building having more than twelve residential units or a complex may have more than one building each having more than twelve residential units. Independent buildings having twelve or less than twelve residential units would not be covered by the definition of “residential complex”. A Division Bench of the Tribunal in AS SIKARWAR VERSUS COMMISSIONER OF CENTRAL EXCISE, INDORE [2012 (11) TMI 1000 - CESTAT, NEW DELHI] also observed that service tax can be demanded only if the building concerned has more than 12 residential units in the building and such levy will not apply in cases where one compound has many buildings, each having not more than 12 residential units. It is true that w.e.f July 01, 2012 ‘construction of complex’ is a declared service, but the Exemption Notification exempts services by way of construction, erection, commissioning or installation of original works pertaining to a single residential unit otherwise than as a part of a residential complex have been exempted - the Commissioner (Appeals) was not justified in holding that the appellant would not be entitled to the benefit of the Exemption Notification. Principles of unjust enrichment - HELD THAT:- The Allahabad High Court in COMMISSIONER OF CUSTOMS CENTRAL EXCISE & SERVICE TAX VERSUS M/S. INDIAN FARMERS FERTILIZERS COOPERATIVE LTD. [2014 (7) TMI 891 - ALLAHABAD HIGH COURT] held that a refund can be claimed by a person who has borne the incidence of tax. Even in accordance with the Exemption Notification dated June 20, 2012, 50% of the tax to be deposited by the Housing Board under the reverse charge mechanism was deducted by the Housing Board from the amount payable to the appellant. The Commissioner (Appeals) was, therefore, not justified in rejecting the refund claim of the appellant on the ground of unjust enrichment. The order dated June 25, 2018 passed by the Commissioner (Appeals), therefore, cannot be sustained and is set aside. The appellant would be entitled to refund in accordance with law - Appeal allowed - decided in favor of appellant.
|