Prajapita Brahma Kumaris Ishwariya Vishwa Vidyalaya Vs Commissioner Of CGST & CE (CESTAT Mumbai)
The only objection which has been raised is to the word ‘building’ used in the Notification No 25/2012-ST whereas appellant are claiming exemption in respect of shop and flats purchased by them from the M/s Yog Reality. In the impugned order and during the course of arguments learned authorized representative has sought to distinguish the decisions of Asha Murarka & Others {Manu/WB/0282/2015 and in the case of Notified Area Committee Nangal Township [MANU/SC/0991/1999 from the facts of following case and have argued that as per this decision a flat in a building should be construed as separate unit. A flat is in building. Multi storey buildings are divided into flats or units.
In the case of Notified Area Committee Nangal Township [AIR 1999 SC 2569] Hon’ble Apex Court has held as follows:
“We do not think that the Committee is right in its approach. If we may refer to the definition of the ‘building’, it means any house used for the purpose of human habilitation. The term ‘house’ in the present case would mean a dwelling house intended for human habilitation. It is not disputed that each quarter or bungalow is allotted to a separate employee who lives therein with his family. Simply because some quarters or some bungalows have common wall separating each other would not mean that that quarter or bungalow ceases to be a house. A house is a place of dwelling or habilitation. It is difficult to accept the proposition that quarters in one row having common wall though each separating the other would mean one building for the purpose of arriving at the annual value. We do not think that any argument is needed for us to hold that each such quarter or bungalow for the residence of employees of the Board would fall within the definition of ‘building’. Stand of the Committee appears to us is rather incongruous. Just to get more revenue, the Committee could not change its stand and put interpretation on the term ‘building’ which is incomprehensible. The Committee was not justified in clubbing all the quarters/bungalows in one block together and term that as ‘building’.”
After taking note of this decision, Hon’ble High Court of Rajasthan has in the case of Bharat Petroleum Corporation [RLW 2008 (1) Raj 439] held as follows:
“18. More than hundred years ago, Earl of Halsbury L.C. stated in the case of Grant v. Langston that the word “house” has acquired an artificial meaning. The word is no longer the expression of a simple idea; but to ascertain its meaning one must understand the subject matter with respect to which it is used in order to arrive at the sense in which it is employed in a statute. Each flat in a multi-storied building is a separate occupation and is a separate place of dwelling and habitation with the separate entry.
19. Seen thus, it is difficult to uphold the contention of State that group of flats in a multi-storied building owned by one person constitute one ‘building’ within the meaning of Section 2(3). For all legal and ordinary purposes, each separate flat in a multi-storied building would constitute a separate house or for that matter a separate building under Section 2(3) since each of such flat is separate and. there is no nexus with the flat above or below or side by side. There is no common functionality as such.”
Hon’ble Supreme Court has in case of The Indian Oil Corporation Ltd. [1991 Supp (2) SCC 18] referred to various dictionary meaning of the word “building” and has observed as follows:
“9. In Blacks Law dictionary, Fifth Edition, the word ‘building’ has been defined thus:
Structure designed for habitation, shelter, storage, trade, manufacture, religion, business, education and the like. A structure or edifice enclosing a space within its walls and usually, but not necessarily, covered with a roof.
10. In Webster Comprehensive Dictionary, International Edition, ‘building’ has been defined thus:
An edifice for any use; that which is built, as a dwelling house, barn, etc. (2) The occupation, business or art of constructing. (3) The act or process of erecting or establishing.
11. Building has been defined in Stroud’s Judicial Dictionary, fourth Edition at 334. What is a ‘building’ must always be a question of degree and circumstances; its “ordinary and usual meaning is, a block of brick or stone work, covered in by a roof”. The ordinary and natural meaning of the word ‘building’ includes the fabric and the ground on which it stands.
12. In the Oxford English Dictionary the word ‘building’ has been defined to mean, “that which is built, structure, edifice, structure of the nature of a house built where it is to stand”. In D.C. Gouse & Co. etc. v. State of Kerala and Anr. etc. . In the context of Entry 49, List Ii of VII schedule to the Constitution (Taxes on lands and buildings) under the Kerala Buildings Act, 1975, this Court held that the word ‘building’ means “that which is built; a structure edifice”. The natural or ordinary meaning of a building is, “a fabric of which it is composed, the ground upon which its walls stand and the ground embraced within those walls”. Under the inclusive definition of that Act it was held that a house, outhouse, garage or any other structure cannot be erected without the ground on which it is to stand. The expression ‘building’ includes the fabric of which it is composed, the ground upon which its walls stand and the ground within those walls because the ground would not have a separate existence, apart from the building.
13. Thus it is clear that a tank to be a building must be a structure designed for either habitation or shelter for human habitation or storage of inanimate objects in storehouse or stable for horses shed or a hut etc. within the four corners of the walls built with masonary or otherwise with ingress or egress. The word building must be given its ordinary natural meaning ascribable to it including the fabric and the ground on which it stands. On a mere look at the tank, by no stretch of imagination, it could be said to be a building.”
In view of the decisions as above we are of the view the word “building” used in entry at Sl No 13 (c) of the Notification No 25/2012-ST is wide enough cover the shop and flats purchased by the appellant in the project being developed by the M/s Yog Reality. That being so benefit of exemption under the said entry cannot be denied to the appellant on this ground.
FULL TEXT OF THE CESTAT MUMBAI ORDER
This appeal is directed against the order-in-appeal No SM/232/Appeals-II/MB/2020 dated 15.09.2020 of the Commissioner of CGST and Central Excise (Appeals-II), Mumbai. By the impugned order, Commissioner (Appeals) has upheld the rejection of the refund claim filed by the appellant.
2.1 Appellant is M/s. Prajapita Brahma Kumaris Ishwariya Vishwa Vidyalaya, Ghatkopar (West). They filed the refund claim in manner prescribed claiming refund of Service Tax of Rs.30,85,155/- vide their letter dated 05.10.2018.
2.2 The Appellant, who was a service receiver (as client / customer), has purchased shop / flat was Shop No. 3 in ‘A’ wing and Flat no. 301 to 306 in ‘A’ wing & Flat no. 301 & 302 in ‘B’ in Residential Building named as Bhaveshwar building No. 3 situated at FP No. 25, CTS No. 5953, Bhaveshwar Lane, Ghatkopar East, Mumbai – 400 077 from M/s. Yog Reality. They paid the consideration along with service tax of Rs.30,85,155/- to the service provider at the time of purchase of above mentioned shop / flats. The refund claim was supported by various documents as follows:
1. Letter dated 05.10.2018 of M/s. Yog Reality stating that they have not claimed any refund of Service Tax of the same amount of the same period.
2. Form- R application for Refund of Service Tax in respect of M/s. Prajapita Brahma Kumaris Ish wariya Vish wa Vidyalaya
3. Copy of Service Tax Return Oct 16 to March 17 & April 17 to June 17 pertaining to Developer/Service i. e. of M/s. Yog Reality (STC NO. AABFY1597MSD001)
4. Copy of Sale agreement
5. Bank statement pertaining to M/s. Yog Reality for the period from 07.12.2016 to 27.06.2017.
2.3 Appellant claimed that as per the entry 13 (c) of the Notification No 25/2012-ST they were exempt from payment of service tax and had paid the service tax wrongly at the time of purchase of the said shops/ flats, to the exchequer through service provider. Having become aware of the mistake, they have filed this refund claim.
2.4 After examination of the refund claim the jurisdictional officer issued deficiency memo to the appellant stating as follows:
“On going through the claim the following discrepancy has been noticed
(i) It is observed that, you as a service receiver {client/customer) paid service tax along with consideration to the developer (service provider for service provided/agreeing to be provided towards purchase of shop/flat in the project developed/constructed by developer(service provider) and claimed for refund for the said service tax amount paid to the developer (service provider) not to the Service Tax Department. It appears that you are not “assessee” in terms of Section 65(7) of erstwhile finance act, 1994 as amended. Further, a registered person under the finance Act, 1994 is entitled to make refund application before the competent authority. You are requested to clarify whether you are registered with the Department for providing/receiving any service in Service tax regime and filling any service tax returns in form ST-3, and if so, please submit the copy of the same. You are also requested to submit details of Service tax payment made to the developer along with documentary evidences in respect of above refund claim made.
(ii) As per statement (Annexure-1) submitted by you, it is observed that service tax has been paid on March 17 and July 17, however claim has been filed on 05th October, 2018. The claim is time barred as it has been filed after expiry of one year. As per Section 1 1B of Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. The claim should be filed within one year from the relevant date.
(iii) You are requested to submit the documentary evidence showing you are registered under Section 12AA of the Income Tax Act, 1962 (43 of 1961) and meant predominantly for religious use by general
2.5 After considering the submissions made by the appellant, original authority vide his order in original No 37/ALT/Refund/MB/Dn-IX/Prajapati/20 18-19 dated 04.02.2019, rejected the refund claim filed by the appellant both on merits and ground of limitation.
2.6 Aggrieved appellant filed the appeal before Commissioner (Appeals) who while setting aside the order on limitation upheld the rejection of refund claim on merits.
2.7 Aggrieved appellant have filed this appeal.
2.8 Revenue has filed no appeal against the impugned order.
3.1 We have heard Shri Mahesh Raichandani, Advocate for the appellant and Shri Nitin M. Tagade, Joint Commissioner, Authorized Representative for the revenue.
3.2 Arguing for the appellant learned counsel submits:
> The only issue involved in the present appeal is in respect of interpretation of the word “building”, used in entry at Sl No 13 (c) of the Mega Exemption Notification.
> Appellant is registered under Section 12AA of the Income Tax Act, 1961. They had purchased certain flats and shops in the project being developed by the Yog Reality. At the time of purchase they had paid the service tax due on the transaction undertaken
> Later on they discovered that they were exempt from payment of this tax and claimed refund of the amount paid by them as service tax.
> By the impugned order, the only objection that Commissioner (Appeal) has to their refund claim is that they have received the specified services from service provider, Yog Reality in respect of the flat and shops and not in respect of the “building” hence the benefit of this exemption cannot be allowed to them.
> In the impugned order Commissioner (Appeal) has categorically held that the refund claim made by them will not be hit by the limitation as per Section1 1B of the Central excise Act, 1944. Revenue has not filed any appeal against this finding of the Commissioner (Appeal) and hence these finding have become final.
> The term building has not been defined by the Notification. For understanding the meaning of the said word reference is made to Merriam Webster Dictionary and the Concise Oxford Dictionary.
> In the case of Asha Murarka and others [MANU/WB/0282/2012], Hon’ble Kolkata High Court has held that “For the purpose of assessment of property tax, the area occupied or owned by the writ petitioners would be considered as a building within the meaning of definition of building given in section 2 (5) of the Kolkata Municipal Corporation Act, 1980.”
> Similarly in case of Notified Area Committee Nangal Township [MANU/SC/0991/1998], Hon’ble Supreme Court has held “building” means any house used for the purpose of human habitation.
> By application of the ratio of the above two decisions it is evident that flats and shops purchased by the appellant would be covered by the term “building” used in the Notification No 25/2012-ST at Sl No 13 (c).
> In the impugned order, Commissioner (Appeal) has while deciding the appeal rejected the refund claim filed by the appellant on the ground which were never stated in the show cause notice/ deficiency memo. It is settle law that no authority could have travelled beyond the show cause notice as has been held in the following decisions:
