2015 (5) TMI 299 - HC - Service Tax

Denial of refund claim which was wrongly - payment of service tax by the land lord - Who is entitle to claim refund, tenant or landlord - for the earlier period prior to 01.07.2012, service tax was not payable if the building was rented to house a Government Organisation - Held that - It is not necessary to consider the challenge made to letter by going into the contentions advanced by the learned counsel for petitioner. Suffice to observe that both petitioner and 1st respondent shall make appropriate representation addressed to the 2nd respondent bringing to the notice of the 2nd respondent the service tax that has been wrongly paid, whereupon the 2nd respondent shall consider the same and pass appropriate orders and refund the amount, in case it is found that service tax for the period from June 2007 to February 2012 was wrongly paid. - Decided conditionally in favour of appellant.

Summary

Issues involved:
1. Dispute over payment of service tax by the landlord on behalf of the tenant.
2. Applicability of service tax on buildings rented to a Government organization.
3. Responsibility for seeking refund of wrongly paid service tax.

Analysis:
1. The writ petition revolves around a dispute regarding the payment of service tax by the landlord on behalf of the tenant for the period from June 2007 to February 2012. The petitioner contends that the service tax was paid periodically on behalf of the tenant, who did not object to it. However, a clarification issued by the Office of the Commissioner of Service Tax stated that service tax was not payable if the building was rented to house a Government Organization before 01.07.2012. Subsequently, the Joint Commissioner of Commercial Taxes informed the petitioner that the service tax was wrongly deducted and paid, advising the petitioner to seek a refund from the competent authority.

2. The central issue pertains to the applicability of service tax on buildings rented out to a Government organization. The clarification issued by the Office of the Commissioner of Service Tax highlighted that service tax was not payable for the period before 01.07.2012 if the building was rented to house a Government Organization. This clarification formed the basis for the Joint Commissioner of Commercial Taxes to inform the petitioner about the incorrect deduction and payment of service tax. The responsibility to address this issue and seek a refund was emphasized in the subsequent communication.

3. The responsibility for seeking a refund of the wrongly paid service tax was a key aspect of the judgment. The petitioner argued that since the service tax was paid by the tenant through the landlord, it was the tenant's obligation to seek the refund. Conversely, the Additional Government Advocate contended that as the amount was paid by the landlord, the petitioner could seek the refund, with the tenant's cooperation. The court directed both parties to make appropriate representations to the concerned authority for the refund, emphasizing the need for cooperation between the landlord and the tenant in this process.

In conclusion, the judgment addressed the dispute over the payment of service tax, clarified the applicability of service tax on buildings rented to a Government organization, and outlined the responsibilities of the parties involved in seeking a refund of the wrongly paid service tax. The court's directive focused on cooperation between the landlord and the tenant to facilitate the refund process efficiently.