TMI Blog2022 (9) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... y Section 104 - The notification granting such benefit would thus have to be construed strictly and it is solely upon compliance with the conditions set out therein, that the assessee would become entitled to the benefit of refund. This argument is rejected. Time Limitation for filing refund - HELD THAT:- It is imperative on the part of the assessee to have complied with the conditions set out under Section 104 and in this view of the matter, the order passed by the authority, impugned in this writ petition, contains no flaw. The application for refund has been filed by the petitioner before the authorities only 18.10.2018, which is, admittedly, beyond the period of six months as prescribed under Section 104 and to this extent, the impugned order cannot also be said to be erroneous. After all, one cannot expect the authorities to take an expansive view of the matter as urged by the petitioner and consider the application filed by the petitioner before PIPDIC as a refund claim under Section 11B filed before the Authorities. In this case, the petitioner has filed the claim before PIPDIC which is altogether a different entity. However, the mere fact that the entity approach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the date on which the Finance Bill received the assent of the President. The Finance Bill had been assented to on 31.03.2017 and thus the six month period ended on 30.09.2017. 5. Section 104, for purposes of clarity and completion, is extracted below: SECTION 104 .(1) Notwithstanding anything contained in section 66, as it stood prior to the 1st day of July,2012, or in section 66B, no service tax, leviable on one time upfront amount(premium, salami, cost, price, development charge or by whatever name called) in respect of taxable services provided or agreed to be provided by a State Government industrial development corporation or undertaking to industrial units by way of grant of long term lease of thirty years or more for industrial plots, shall be levied and collected during the period commencing from the 1st day of June,2007 and ending with 21st day of September,2016 (both days inclusive). (2) Refund shall be made of all such service tax which has been collected, but which would not have been so collected, had sub-section(1) been in force at all times. (3) Notwithstanding anything contained in this Chapter, an application for claim of refund of service ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Superintendent, as conveyed on 31.10.2018, was that the petitioner was entitled to the refund as sought. He thus sought copies of the returns to establish payment of service tax by the petitioner, that were duly furnished. However, thereafter, the Department awoke to the fact that the claim had been made beyond the period mentioned in the Notification and thus issued a show cause notice dated 19.12.2018 calling upon the petitioner to respond as to why the refund claim not be rejected. 11. A corrigendum was issued by the authorities to correct the period within which the claim ought to have been made as per Notification. The petitioner responded vide letter dated 11.01.2019 pointing out that it had made the claim in time, only before PIPDIC, and not before the service tax authorities. After hearing the petitioner, the impugned order-in-originaldated 28.01.2019 has come to be passed rejecting the petitioner s claim. 12. The submissions of the petitioner are two-fold. Firstly, petitioner submits that the appropriate limitation for processing of the refund claim would be a period three years, since, by the very grant of refund, the levy of service tax on the lease premium ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll cases, relied upon by the learned counsel for the petitioner, the claims had been filed before officers of the service tax department itself who were not the proper/appropriate officers, to consider such request. It was in such circumstances, that the Courts had held that since the claims had been made before the service tax department, though before the erroneous officers, a hyper-technical view should not be taken and the assessees claims in those cases should be considered. 16. She relies upon the following decisions in support of her submissions: (i) Assistant Collector of Customs and Others Vs. Anam Electrical Manufacturing Co. and Others [(1997) 5 SCC 744] (ii)Mafatlal Industries Ltd. Vs. Union of India [(1997) 5 SCC 536] (iii) Union of India and Others Vs. Barmalt (India) Ltd. Gurgaon and Others [(1997) 5 SCC 748] 17. Heard Mr.G.Natarajan, learned counsel for the petitioner and MsMrs.HemaMuralikrishnan, learned Senior Standing Counsel for the respondents. 18. The first argument advanced is that the provisions relating to levy of service tax on lease premium are rendered unconstitutional or erroneous by virtue of insertion of Section 104 in 2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies only 18.10.2018, which is, admittedly, beyond the period of six months as prescribed under Section 104 and to this extent, the impugned order cannot also be said to be erroneous. After all, one cannot expect the authorities to take an expansive view of the matter as urged by the petitioner and consider the application filed by the petitioner before PIPDIC as a refund claim under Section 11B filed before the Authorities. 24. However, the power endowed uon this Court in terms of Article 226 of the Constitution of India is substantial and wide, facilitating one to adopt a holistic perspective of all issues in arriving at a decision. Thus, in deciding whether the petitioner s claim before PIPDIC could be considered as compliance of the condition under Section 104, I take succour from the following facts: (i) Section 104 was itself was enacted as a beneficial provision method. Legislature intended, in principle, that there shall be no levy of service tax in respect of services relating to grant of long term lease in excess of 30 years. (ii) Admittedly, the transaction qua the petitioner and PIPDIC falls squarely within the factual and legal matrices envisaged under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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