JUDGEMENT

          Complainant by filing this complaint has submitted that he intended to purchase a flat from M/s Larica Estates at Barasat Barrackpore Road, P.S.- Barasat and submitted an application dated 26.10.2009 in prescribed forms and in terms of the application complainants issued a cheque of Rs. 5,515/- being No. 303525 dated 23.10.2009 drawn on UCO Bank Santoshpur Branch to the op for processing charges and service tax and said application was submitted in the office of the op along with the cheque of Rs. 5,515/- complainant applied for a 2 roomed flat measuring 391 sq. ft. and applied for 80% of the total valuation of the said flat i.e. for Rs. 3,40,160/- to be paid by Dewan Housing Finance Corporation Ltd. by 4 installments. 

          Complainants thereafter persuaded the matter on several times to enquire about the sanction of the loan in favour of the complainants but nothing was informed by the op about the fate of application up to 26.10.2009.  So, on 25.03.2011 it was informed by Larica Housing Estate over telephone that they would cancel the allotment of the flat as they have not received any amount of installment from Dewan Housing Finance Corporation Ltd. though 3 installments have already become due and on receipt of the telephone call of Larica Housing Estate authority complainant went to the office of the op and on enquiry it was revealed that the application dated 26.10.2009 has not been processed at all and the said application has become inoperative due to lapse of time and accordingly loan cannot be sanctioned to the complainants.  At that time the Asstt. Sales Manager of DHFL advised to submit a fresh application with cheque of Rs. 5,515/- in favour of DHFL to set the process of financing for purchasing the said flat by the complainants and for granting loan.  So complainants finding no other alternative submitted second time application datd 25.03.2011 along with account payee cheque of Rs. 5,515/- bearing No. 883975 drawn upon State Bank of India, Ballygunge Branch and thereafter demanded to refund the first application money of Rs. 5,515 vide his letter dated 25.07.2011 but op did not pay any heed and thereafter the complainants on repeated reminders to op remitted sum of Rs. 5,000/- by an account payee cheque dated 27.08.2012 in favour of complainant no.1 bearing cheque No. 122992 drawn upon Axis Bank.

          But on receipt of that complainant enquired about while balance of Rs. 515/- has not been paid and why that amount of Rs. 515/- had been deducted for service charges when the loan application was not processed and no service was given and also claim for refund of the said amount.  But op remained silent.  But subsequently op issued a letter on 28.10.2013 to the complainant no.1 since the said amount of Rs. 515/- which was collected in terms of established law has been already deposited with the concerned statutory authority, therefore could not be refunded. But complainant issued a legal notice dated 14.11.2013 and asked the op to handover of that Rs. 515/- and also demanded for refund of money but they did not pay any heed.

          In the above circumstances for negligent and deficient manner of service this complaint is filed.

          But on the contrary op by filing written statement submitted that no doubt complainants prayed for loan for amount of Rs. 3,40,160/- along with application for granting loan and also received a cheque of Rs. 5,515/- but that loan application was cancelled due to lack of relevant paper when complainant submitted second application.  But in respect of first application out of deposited amount of Rs. 5,515/- Rs. 5,000/- has already been refunded and Rs. 515/- has been deducted and that amount was deposited to Statutory authority and op has nothing to do in this regard and there is no scope to refund the same.

Moreover complainants are not entitled to get refund back and so there is no negligence and deficiency on the part of the op and for which they prayed for dismissal of this case.

                                         Decision with reasons

          On assessment of the present complaint and written version and also considering the demand of the op, it is clear that op received Rs. 5,515/- along with an application for sanctioning of loan from the complainant.  But truth is that application was cancelled by the op and it was not processed.  But op has tried to say that as per rule 10.30% over the total amount of Rs. 5,515/- service tax was fixed Rs. 515/- and that was deducted and deposited to the Statutory authority as per statutory provision of law for which that cannot be returned.  But in this case it is to be mentioned that by a letter dated 14.11.2013 complainant through his Ld. Lawyer sent a letter to the op requesting him to submit the Xerox copy of the deposited challan of Rs. 515/- to the Government authority.  But peculiar factor is that op did not submit the same and did not send the Xerox copy to satisfy the complainants’ said amount of Rs. 515/- which was deducted as service tax and deposited to the Government authority by challan and not only that all the plea has been taken by the op and deposited to statutory authority as per statutory law.  So he is not liable to refund the same.

But most interesting factor is that even during continuation of this proceedings, op did not submit that paper.  Fact remains that op has no paper to show that he deposited the said amount of Rs. 515/- to the statutory authority as per law and nobody challenged and it has not been produced to prove that it has been deducted as per statutory law and it was deposited to the Government concern as per law and considering that fact we are convinced to hold that the defence is taken by the op is completely false and fabricated.

Truth is that as per provision of Central Board of Excise and Custom, Ministry of Finance (Department of Revenue) service tax shall be deposited to Commissionerate of Service Tax Division at Kolkata, West Bengal and invariably op has service tax registration No.  But op has not filed any such service tax registration no. of the op with the Central Board of Excise and Custom Ministry of Finance (Department of Revenue) and this tax is charged as per Finance Act 1994 read with Service Tax Rules 1994 and other real estate, promoter, company or any other concerns or developer are bound to be registered under the said Act and which is like PAN Card, service provider ------------------- service tax registration and that is called Service Tax Board (Registration No.) but that has not been supplied.

At the same time no such service of Service Tax Registration has been submitted by the op duly issued by the Superintendent of Registration Service Tax Division at Kolkata.  No such challan is produced by the op to show that he has deposited the said amount of Rs. 515/- to the Pay Account Officer (Service Tax Registration Kolkata) at any point of time.  So, considering all the above fact and circumstances, we are convinced to hold that the entire complaint of the op is false and they have failed to produce any such document to show that the said amount as deducted as service tax and was deposited to Pay & Account (Service Tax Kolkata) and he has also failed to prove his service tax registration number and certificate before this Forum.

Considering all the above fact we are convinced to hold that the entire defence of the op is proved false defence and in fact such sort of financial institution are collecting huge amount of money in such a fashion and truth is that service tax is charged when loan was sanctioned not before that.  If loan is cancelled or rejected service tax cannot be deducted that is the provision of law and as per provision of Finance Act 1994 read with Service Tax Rules 1994 an order was issued from time to time by the Central Board of Excise & Custom Ministry of Finance (Department of Revenue).

So, we are confirmed that a false and unfaithful defence has been taken by the op and truth is that Rs. 515/- was wrongly deducted and fact remains op has been running such business all along and it is their business to collect money in such a fashion by rejecting application without processing loan application and truth is that no service was provided against that application.  So, op is bound to refund Rs. 515/- on the ground because op has harassed the lawyer in this regard.

Another factor is that op appeared before this Forum nakedly because having no documents to substantiate his defence and no doubt that is the common defence of the op in most of the cases.  But they are collecting money in such a fashion for which it is proved that it is one kind of unfair trade practice on the part of the op.  Fact remains being a lawyer complainant is no doubt harassed.  Truth is that complainant prayed for sending other Xerox copies and challan in respect of deposited of the said amount of Rs. 515/- to the Pay & Account Service Tax Kolkata but that was not supplied.  It indicates that op compelly forced the complainant to file this complaint for which the complainant is entitled to some litigation also because he has been harassed by the op.

In the result, the complaint succeeds.

Hence, it is

                                                     ORDERED

That the complaint be and the same is allowed on contest with cost of Rs. 5,000/- against the op.

Op is directed to refund the entire amount of Rs. 515/- and also to pay a sum of Rs. 1,500/- as compensation for giving mental pain and agony and harassment and also for filing unfaithful defence before this Forum.

Accordingly op shall have to pay Rs. 515/- + Rs. 5,000/- as litigation cost + Rs. 1,500/- as compensation total Rs. 7,015/- to the complainant within 15 days from the date of this order failing which for each day’s delay and for disobeyance of Forum’s order op shall have to pay punitive damages @ Rs. 200/- per day till full satisfaction of the decree and if it is collected that shall be deposited to this Forum but even if this op is unwilling to comply the order in that case op will be prosecuted u/s 27 of C.P. Act 1986 and for which further penalty and fine shall be imposed.