JUSTICE R. K. AGRAWAL, PRESIDENT

1.       Delay of eight days in filing of this Appeal Execution is condoned for the reasons stated in the Application for Condonation of Delay.

2.       The present Appeal Execution has been filed by the Judgment Debtors, who were Opposite Parties before the Punjab State Consumer Disputes Redressal Commission at Chandigarh (in short, ‘the State Commission), against the Order dated 04-04-2018 passed by the State Commission in Execution Application No.102 of 2017, arising out of
Order dated 10-03-2017 in Consumer Complaint No.140 of 2016, whereby the State Commission has directed the Opposite Parties/Judgment Debtors to refund the amount deducted by them towards Service Tax and TDS to the Complainant/Decree Holder on or before 25-04-2018 by way of demand draft.

3.       We have heard the Learned Counsel for the Appellants and the father of the Respondent, who is appearing in person and perused the impugned order passed by the State Commission.

4.       The Learned Counsel for the Appellants, in her written arguments, placing reliance on the order dated 22-08-2016 of the Hon’ble National Commission in Consumer Complaint No.142 of 2009 titled Sunrise Green Residents Welfare Association Vs. Jaipuria Infrastructure Developers Pvt. Ltd. and order dated 12-08-2016 of the Hon’ble National Commission in the matter of Kuntal Debnath Vs. Director, RDB Industries Ltd., 2016, SCC Online NCDRC 2045, which have attained finality, vehemently contended that the issue of refund of deposit of statutory dues towards Service Tax and TDS is no more res integra and the impugned order has been passed in ignoranitum of the settled position of law; that the Respondent sought refund of the amount deposited with the Appellants vide his letter dated 01-06-2015 in terms of Clause 3(II) of the Letter of Intent, which was granted in full in the month of August, 2015, after deduction of statutory dues pertaining to Service Tax and TDS; that the Service Tax has been charged and deposited in consonance with the provisions of Section 65(105)(zzzh) and Section 66E of the Finance Act; that in pursuance of the statutory law and Circular No.151/2/2012-ST dated 10-10-2012 issued by the Ministry of Finance, the Appellants had deposited the Service Tax with the concerned Revenue Department on 24-11-2012.

5.       The Learned Counsel for the Appellants further submitted that the Central Government in its Budget of 2010-2011 had imposed tax liability (Service Tax) on all under construction properties w.e.f.01-07-2010. The same was challenged by many Real Estate Developers and Builders but the matter was eventually decided by the Hon’ble Supreme Court in favour of the Government. Consequently, Service Tax on under construction property was liable to be paid @3.75% on the total price paid for the purchase of an under construction property by the Developers. In order to remove such confusion, the Government, while introducing the Negative List of Services (applicable from 1^st July, 2012) has very specifically in the definition of Service contained in Clause 44 of Section 65B of the Act stated that Services include Declared Services. The Government also mentioned the activities like construction of complex, building, civil structure or part thereof as Declared Service. The learned counsel further submitted that a decision was taken by the Chief Administrator, Greater Mohali Area Development Authority (GMADA) on      23-06-2015, which was not challenged, to deduct the Service Tax from the amount of refund, since the same has been deposited by GMADA.

6.       As part of her contentions, the learned counsel for the Appellants submitted that the Appellants have deducted TDS only on the amount of interest and not from the compensation, as awarded by the State Commission in consonance with provisions of Sections 194A and 2(28)A of the Income Tax Act, 1995 and deposited the same with the concerned Revenue Department on 05-11-2015 which was deposited for the period from 01-07-2015 to 30-09-2015 in the Assessment Year of 2016-2017. She further contended that the impugned order dated 04-04-2018 is sans jurisdiction and is based on assumptions contrary to the letter and spirit of the order dated 10-03-2017 passed in the Complaint and is liable to be set aside to the extent it directs refund of the Service Tax and TDS which is legitimately deducted by the Appellants.

7.       To the contrary, the father of the Respondent, Mr. Viney Kumar Mutneja, in his written arguments, raised rival contentions that the amount of Rs.21,321/-, deducted on account of Service Tax by the Appellants and not refunded to the Respondent is unauthorized and is payable to the Respondent in view of the order dated 10-03-2017 quoting the statutory provisions of the Service Tax Laws, of the State Commission passed in the Complaint
Case and order dated 04-04-2018 passed by the State Commission in Execution Application. The Respondent has also placed reliance on Clause 2.3, namely, ‘Investment Model’ of Circular No.151/2/2012-ST dt.10-02-2012 of Government of India, Ministry of Finance, CBEC and contended that there is no ambiguity about the refund of the Service Tax by the Appellants since the Respondent has withdrawn from the Scheme. Moreover, the Respondent is not Service Tax Assessee and cannot claim refund from the CBEC and only the Appellants can take the refund.

8.       The father of the Respondent further contended that the amount of tax deducted in the year 2015-16 of Rs.11,239/- and Rs.1,94,407/- deducted in the year 2017-18 is unauthorized and refundable by the Appellants because the interest which has been awarded by the Hon’ble State Commission is not on account of any deposits made by the Respondent with the Appellants, but for compensation or damages for delay in construction of the flat or handing over the possession of the same causing consequential loss to the Respondent by way of escalation in the price of the property during the last five years and also on account of depriving of the use of money to which the Respondent is legitimately entitled. That the word interest has been used in the order of the State Commission as a convenient method of calculating the amount of compensation/damages and does not mean interest as defined in Section 2(28-A) of the Income Tax Act. That the Appellants are exempted from deduction of TDC under Section 194A of Income Tax Act, on interest payments in such cases since such interest payment does not come under the purview of Section 2(28-A) of the Income Tax Act. He has placed reliance on the judgment of the Hon’ble National Commission in R.P.No.2244 of 1999, G.D.A. Vs. Dr. N. K. Gupta, order dated 28-11-2011 of High Court of Himachal Pradesh in Commissioner of Income Tax, Shimla Vs. H.P. Housing Board, Shimla, order dated 02-12-2015 of the Income Tax Appellate Tribunal in West Bengal Housing Infrastructure Vs. Department of Income Tax. The father of the Respondent has also emphasized that the Hon’ble Supreme Court of India in Civil Appeals No.8400 of 2000, GDA Vs. Naresh Kumar Sharma and No.7224 of 2002, GDA Vs. Chander Bhan Singh have vindicated the stand of the Hon’ble National Commission and State Commission and have ordered to GDA for refund of TDS deducted along with 18% rate of interest till the date of refund.

9.       At this juncture, we would like to place reliance on the judgment of the National Commission in the case of GDAVs. Dr. N. K. Gupta, R.P.No.2244 of 1999 decided on 18.09.2002, the relevant observations made wherein are reproduced as hereunder:

“…..The amounts which were paid to the GDA by the Complainant were not paid by way of any deposit or GDA had not borrowed that money.

…..Here interest payment is by way of damages. Merely describing the damages as by way of interest do not make them as interest under the Income Tax Act.

…..The word interest used in the order of the State Commission is not what interest is as defined in Section 2(28-A) of the Income Tax Act.

….In our view, therefore, considering the definition of 'interest' as contained in Section 2(28-A) of the Income Tax Act, provisions of Section 194-A were not applicable and the GDA was clearly wrong in deducting the TDS from the interest payable to the Complainant.”

10.     We further place reliance on the judgment of the National Commission in the bunch of cases titled as Puma Realtors Pvt. Ltd. &Ors. Vs. AbhaArora&Ors., IV (2018) CPJ 441 (NC),therelevant observation made wherein is reproduced as hereunder:

          “We may mention here that even though the Complainants have been granted simple interest of 12% p.a. or 9% p.a. but as the same has been awarded by way of damages the Appellant who has been directed to pay the said amount shall not deduct tax (T.D.S.) under the Income Tax Act, 1961 as it is not payment of any interest but only a formula for computation of damages.”

11.     In our considered view, the submissions made by the Learned Counsel for the Appellants are wholly misconceived. The Appellants/Judgment Debtors, during the pendency of the Execution Application, have paid Rs.17,20,638/- to the Complainants on 23-08-2017 vide DD No.662680 and Rs.2,50,018/- on 07-09-2017 vide DD No.662684 and they have been directed to pay the amount deducted by them as Service Tax and TDS to the Complainants. On careful perusal of the impugned order passed by the State Commission, we find that the Learned Counsel for the Appellants have raised the same pleas which were raised before the State Commission in Execution Application and the same have been substantially considered by the State Commission while deciding the Execution Application vide order dated 04-04-2018. We are in complete agreement with the view taken and findings recorded by the State Commission and find no good ground to interfere with the well-reasoned order passed by the State Commission. The attempt of the Learned Counsel for the Appellants in again raising the same pleas as well as the question of jurisdiction, etc., cannot be permitted in the Execution Proceedings.

12.     In the result, the Execution Appeal preferred by the Appellants is hereby dismissed.

13.     There shall be no orders as to costs.