2013 (1) TMI 70 - AT - Service Tax

Rejection of refund claim - service tax collected by the landlord for renting the premises was illegally collected and therefore required to be refunded - Held that - As correctly pointed out by the D.R. that the issue involved in this case is a question which has been addressed by retrospective amendment to the provisions of Section 65(105)(zzzz), i.e. to any person, by any other person, by renting of immovable property or any other service in relation to such renting, for use in the course of or, for furtherance of, business or commerce By Finance Act, 2010, this section has been retrospectively amended to hold that it will have effect from 01.06.07 and it has held that service tax liability is correctly charged and collected by the authorities - against assessee.

Summary

Issues:
Refund claim of service tax collected by landlord, retrospective amendment to Section 65(105)(zzzz), legality of service tax charged by landlord, rejection of refund claim, principles of natural justice.

Analysis:

1. Refund Claim of Service Tax Collected by Landlord:
The appellant filed a refund claim of Rs.3,52,260 on the grounds that the service tax collected by the landlord for renting the premises was illegally collected and should be refunded. However, a show cause notice was issued to reject the refund claim, and the adjudicating authority, after due process of law, rejected the claim. The appellant, aggrieved by this decision, appealed to the first appellate authority, which also upheld the rejection of the refund claim after following the principles of natural justice.

2. Retrospective Amendment to Section 65(105)(zzzz):
The main argument of the appellant was that the service tax charged by the landlord was not legal and should not have been collected. However, the judge noted that a retrospective amendment to Section 65(105)(zzzz) by the Finance Act, 2010, clarified that the service tax liability was correctly charged and collected by the authorities. This retrospective amendment, effective from 01.06.07, addressed the issue raised by the appellant regarding the legality of the service tax charged by the landlord.

3. Legality of Service Tax Charged by Landlord:
The appellant contended that the service tax paid to the landlord was incorrect and sought a refund on that basis. The judge, however, pointed out that the retrospective amendment to Section 65(105)(zzzz) confirmed the correctness of the service tax liability as charged and collected by the authorities. Therefore, the judge found no reason to interfere with the decision of the first appellate authority, even though they had based their decision on a different ground.

4. Rejection of Refund Claim:
Given that the issue raised by the appellant was addressed by the retrospective amendment to the relevant section, the judge dismissed the appeal as devoid of merits. The retrospective nature of the amendment clarified the legal position on the service tax liability, leading to the dismissal of the appeal challenging the rejection of the refund claim.

In conclusion, the judgment by the Appellate Tribunal CESTAT Ahmedabad upheld the rejection of the appellant's refund claim concerning the service tax collected by the landlord, citing the retrospective amendment to Section 65(105)(zzzz) as the basis for dismissing the appeal.