TMI Blog2017 (7) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... /2017 - Dated:- 10-7-2017 - Mr. M.V. Ravindran, Member (Judicial) Sh. Nagraj Rao, Advocate for the Appellant Sh. P.S. Rao, Assistant Commissioner (AR) for the Respondent ORDER [Order Per: M. V. Ravindran] 1. This appeal is directed against Order-in-Appeal No.HYD-SVTAX-000-APP-0138-16-17-ST dated 12.09.2016. 2. The relevant facts that arise for consideration are the appellant herein is engaged in providing renting of immovable property service and filed a refund claim on 20.07.2015 seeking refund of an amount of ₹ 1,60,868/- for the tax discharged during the financial year 2013-14 and 2014-15, on the ground that they had erroneously included the rental income from the residential property for assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asons. 6. Firstly, the appellant being registered with the departmental authority should have considered of the provisions before discharging the service tax liability and having not claimed the benefit of available notification and after discharging the service tax liability, cannot now claim that the department has withheld the tax which they are not supposed to collect. Secondly, I find that the first appellate authority has in paragraph no. 9 and 10 has categorically recorded how the appellant is eligible for part of the refund claim. The said findings are correct in the facts and circumstances of this case and I concur with the same. The findings are reproduced below: 9. Insofar as the residential rent is concerned, there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainable and is upheld. Since the (portion of the) claim is found time barred under Sec 11B, the examination of admissibility on merit is rendered otiose. 10. Insofar as the residential rent receipts for FY 2014-15 are concerned, the impugned order is admittedly silent on the factual matrix. The denial of refund on this portion is therefore legally untenable. Since the claim has been filed on 20.07.2015, all tax payments related to residential rent on and after 21.07.2014, up to 31.03.2015 can be considered for refund, subject to the claim clearing the test of unjust enrichment, since the non-taxability of residential rent is beyond doubt. The denial of the portion of refund pertaining to tax discharged on residential rent for the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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