State Consumer Disputes Redressal Commission
Sri Kuntal Debnath vs Director, Rdb Industries Ltd. on 26 December, 2013
DRAFT STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, MIRZA GHALIB STREET KOLKATA 700 087 S.C. CASE NO.FA/356/2011 (Arising out of order dated 13/07/11 in Case No.1379/2009 of District Consumer Disputes Redressal Forum, Kolkata, Unit-II) DATE OF FILING:12/08/11 DATE OF FINAL ORDER:26/12/13 APPELLANT : Sri Kuntal Debnath S/o-Late A. B. Debnath Flat No.2A, Block-5 Regent Enclave, VIP Road P.S. Baguiati Kaikhali, Kolkata-700 052 Presently residing at USA Represented by his Constituted Attorney Sri Jnan Ranjan Bir S/o-Late Madhusudan Bir Flat No.1A, Block-I Regent Enclave, VIP Road P.S. Baguiati Kaikhali, Kolkata-700 052 RESPONDENT :
Director RDB Industries Ltd.
8/1, Lal Bazar Street Bikaner Building P.S. Bowbazar Kolkata-700 001 FOR THE APPELLANT : Mr. Saikat Biswas Ld. Advocate FOR THE RESPONDENT : Mr. Souma Bhattacharya Ld. Advocate S.C. CASE NO.FA/54/2013 (Arising out of order dated 17/12/12 in Case No.1380/2009 of District Consumer Disputes Redressal Forum, Kolkata, Unit-II) DATE OF FILING:16/01/13 DATE OF FINAL ORDER:26/12/13 APPELLANT : Director RDB Industries Ltd.
8/1, Lal Bazar Street Bikaner Building P.S. Bowbazar Kolkata-700 001 RESPONDENTS :
1) Sri Jnan Ranjan Bir S/o-Late Madhusudan Bir Flat No.1A, Block-I Regent Enclave, VIP Road P.S. Baguiati Kaikhali, Kolkata-700 052
2) Smt. Susmita Bir W/o-Jnan Ranjan Bir Flat No.1A, Block-I Regent Enclave, VIP Road P.S. Baguiati Kaikhali, Kolkata-700 052 FOR THE APPELLANT : Mr. Suchayan Choudhury Ld. Advocate Mr. Dipayan Choudhury Ld. Advocate FOR THE RESPONDENTS : Mr. Saikat Biswas Ld. Advocate S.C. CASE NO.FA/86/2013 (Arising out of order dated 17/12/12 in Case No.1380/2009 of District Consumer Disputes Redressal Forum, Kolkata, Unit-II) DATE OF FILING:24/01/13 DATE OF FINAL ORDER:26/12/13 APPELLANT : Director RDB Industries Ltd.
8/1, Lal Bazar Street Bikaner Building P.S. Bowbazar Kolkata-700 001 RESPONDENTS :
1) Smt. Kalyani Roy Flat No.5C, Block-IV Regent Enclave, VIP Road P.S. Baguiati Kaikhali, Kolkata-700 052
2) Sri Prosenjit Roy Flat No.5C, Block-IV Regent Enclave, VIP Road P.S. Baguiati Kaikhali, Kolkata-700 052 FOR THE APPELLANT : Mr. Suchayan Choudhury Ld. Advocate Mr. Dipayan Choudhury Ld. Advocate FOR THE RESPONDENTS : Mr. Saikat Biswas Ld. Advocate S.C. CASE NO.FA/87/2013 (Arising out of order dated 26/12/12 in Case No.1382/2009 of District Consumer Disputes Redressal Forum, Kolkata, Unit-II) DATE OF FILING:24/01/13 DATE OF FINAL ORDER:26/12/13 APPELLANT : Director RDB Industries Ltd.
8/1, Lal Bazar Street Bikaner Building P.S. Bowbazar Kolkata-700 001 RESPONDENTS :
1) Sri Manish Kumar Flat No.4B, Block-I Regent Enclave, VIP Road P.S. Baguiati Kaikhali, Kolkata-700 052
2) Smt. Shalini Kumar Flat No.4B, Block-I Regent Enclave, VIP Road P.S. Baguiati Kaikhali, Kolkata-700 052 FOR THE APPELLANT : Mr. Suchayan Choudhury Ld. Advocate Mr. Dipayan Choudhury Ld. Advocate FOR THE RESPONDENTS : Mr. Saikat Biswas Ld. Advocate S.C. CASE NO.FA/88/2013 (Arising out of order dated 26/12/12 in Case No.1382/2009 of District Consumer Disputes Redressal Forum, Kolkata, Unit-II) DATE OF FILING:24/01/13 DATE OF FINAL ORDER:26/12/13 APPELLANT : Director RDB Industries Ltd.
8/1, Lal Bazar Street Bikaner Building P.S. Bowbazar Kolkata-700 001 RESPONDENTS :
1) Smt. Satarupa Datta Majumdar Saha Flat No.4A, Block-I Regent Enclave, VIP Road P.S. Baguiati Kaikhali, Kolkata-700 052
2) Sri Bikas Kumar Saha Flat No.4A, Block-I Regent Enclave, VIP Road P.S. Baguiati Kaikhali, Kolkata-700 052 FOR THE APPELLANT : Mr. Suchayan Choudhury Ld. Advocate Mr. Dipayan Choudhury Ld. Advocate FOR THE RESPONDENTS : Mr. Saikat Biswas Ld. Advocate BEFORE : HONBLE JUSTICE : Sri Kalidas Mukherjee President HONBLE MEMBER : Smt. M. Roy
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: O R D E R :
HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT These five appeals of identical nature are directed against the judgment and order passed by the Learned District Forum, Kolkata, Unit-II. In CC Case No.1379 of 2009 relating to FA No.356 of 2011 the complaint was dismissed. In FA No.54 of 2013 arising out of CC 1380 of 2009, FA No.86 of 2013 arising out of CC 1378 of 2009, FA No.87 of 2013 arising out of CC 1382 of 2009 and FA No.88 of 2013 arising out of CC 1381 of 2009, the Learned District Forum on the same facts and circumstances allowed the petition of complaint. The appeal bearing no.356 of 2011 has been preferred by the complainant and the other appeals have been preferred by the OP.
The case of the complainants, in short, is that there was an agreement for the purchase of flat and the OP being the developer realized service tax from the purchasers. After going through the newspaper Telegraph dated 07/12/07 to the effect that a promoter cannot charge service tax while selling a flat, the purchasers made an application to the developer for the refund of service tax. The developer denied the refund stating that the amount of service tax collected was deposited with the Service Tax Department and a request was made by the developer for the refund of the same. A claim for refund was made, but that was rejected. It has been alleged that the service tax was realized by the developer wrongly from the purchasers and there was deficiency in service. For the said reason, the complaint was filed for the refund of the amount so paid by the complainants towards service tax with interest.
The Learned Counsel for the developer has submitted that the service tax was realized on 03/07/06 when the service tax was leviable under the law. It is contended that by subsequent notification it was clarified that service tax was not leviable and the developer made an application for refund before the Service Tax Authority. It is submitted that the developer deposited the amount of service tax so collected from the purchasers with the Service Tax Department. It is contended that the claim for refund was rejected by the concerned Authority. It is contended that there was no dishonest intention on the part of the developer as the amount was duly deposited with the Authority. The Learned Counsel has referred to the Notification No.15/2005-Service Tax and also the clarification on technical issues relating to taxation of services under the Finance Act, 1994 dated 23/08/07 clarifying that no service tax was leviable. It is contended that no retrospective effect was given in the Circular dated 23/08/07. It is submitted that the Learned District Forum was not justified in allowing the petition of complaint and passing the impugned orders.
The Learned Counsel for the respondents/purchasers and appellant in FA 356 of 2011 has submitted that the complainants purchased the flat from the OP company. It is contended that the developer demanded service tax and it was paid on 03/07/06. It is contended that from the newspaper the complainants came to know that the service tax was not payable in case of purchase of flat and the complainants applied for getting information under the RTI Act. It is contended that the Service Tax Authority held that the service tax was collected wrongfully. It is contended that the service tax was realized by the developer wrongfully and there was unfair trade practice. It is submitted that the complainants asked for refund of money, but it was learnt that the refund claim of the petitioner was rejected. It is contended that the developer cannot plead ignorance under the law.
We have heard the submission made by both sides and perused the papers on record. The fact remains that the developer realized the service tax from the intending purchasers and deposited it with the Service Tax Authority. It is the contention of the developer that when they collected service tax from the intending purchasers on 03/07/06 at that time the service tax was leviable. It is submitted that subsequently by clarification made in the year 2007 it was made clear that service tax was not payable. It is the further admitted case of the parties that the developer made the claim for refund of the service tax earlier paid, but it was rejected by the concerned Authority. Now the question is whether or not there was deficiency in service or unfair trade practice on the part of the developer. There is no denying fact that the developer deposited the amount of service tax with the appropriate Authority. This shows the bonafide conduct of the developer. It is not the case that the developer refrained from depositing the amount with the concerned Authority. It further appears that the claim for refund of service tax made by the developer was rejected and the appeal was also dismissed. Under such circumstances, it cannot be said that there was any deficiency in service or unfair trade practice on the part of the developer. The complainants are not entitled to get any relief and the petitions of complaint filed in respective cases are liable to be dismissed.
The appeal bearing no.356 of 2011 is dismissed. The impugned order for dismissal of the complaint stands affirmed.
The appeal bearing no.54 of 2013, 86 of 2013, 87 of 2013 and 88 of 2013 are allowed and the impugned judgments are set aside. The petitions of complaint in the respective cases are dismissed. We make no order as to costs.
MEMBER(L) PRESIDENT