Chandigarh

StateCommission

A/57/2021

DLF Universal Ltd. - Complainant(s)

Versus

Purnima Kapur - Opp.Party(s)

Kunal Dawar, Tanika Goyal & Vipul Sharma Adv.

27 May 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	57 of 2021
Date of Institution	:	20.08.2021
Date of Decision	:	27.05.2022

1. DLF Universal Limited (De-merged with M/s DLF Homes Developers Ltd.), having its Registered Office at Shopping Mall, 3^rd Floor, Arjun Marg, DLF City, Phase-I, Gurgaon 122002, Haryana, through its Chairman/Managing Director/Director/Authorised Signatory.
2. DLF Universal Limited (De-merged with M/s DLF Homes Developers Ltd.), DLF Hyde Park Estate Sale Office, Chandigarh Siswan Road, Mullanpur Barrier, Mullanpur, District SAS Nagar, Punjab through its Chairman/Managing Director/Director/Authorized Signatory. 

…Appellants/opposite parties

V e r s u s

1. Purnima Kapur w/o Sh.Amit Kapur,
2. Amit Kapur s/o Sh.Om Parkash Kapur,

Both R/o Rostamani Tower A, Flat No.1003, First Trade Center, Dubai, UAE, through SPA Holder Nand Kishore Anand, R/o BA 289, Tagore Garden, New Delhi 110027

…..Respondents/complainants

 

Present:-              Ms.Tanika Goyal, Advocate for the appellants.

                             Sh.Narender Yadav, Advocate for the respondents.

 

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Appeal No.	:	76 of 2021
Date of Institution	:	01.10.2021
Date of Decision	:	27.05.2022

 

1. DLF Universal Limited (De-merged with M/s DLF Homes Developers Ltd.), having its Registered Office at Shopping Mall, 3^rd Floor, Arjun Marg, DLF City, Phase-I, Gurgaon 122002, Haryana, through its Chairman/Managing Director/Director/Authorised Signatory.
2. DLF Universal Limited (De-merged with M/s DLF Homes Developers Ltd.), DLF Hyde Park Estate Sale Office, Chandigarh Siswan Road, Mullanpur Barrier, Mullanpur, District SAS Nagar, Punjab through its Chairman/Managing Director/Director Authorized Signatory. 

…Appellants/opposite parties

V e r s u s

Amit Aggarwal S/o Arun Kumar Aggarwal R/o R-2/F811, First Floor, DLF Hyde Park, New Chandigarh, Mohali, Punjab.

…..Respondent/complainant

 

Present:-              Ms.Tanika Goyal, Advocate for the appellants.

                             Sh.Narender Yadav, Advocate for the respondent.

 

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Appeal No.	:	77 of 2021
Date of Institution	:	01.10.2021
Date of Decision	:	27.05.2022

1. DLF Universal Limited (De-merged with M/s DLF Homes Developers Ltd.), having its Registered Office at Shopping Mall, 3^rd Floor, Arjun Marg, DLF City, Phase-I, Gurgaon 122002, Haryana, through its Chairman/Managing Director/Director/Authorised Signatory.
2. DLF Universal Limited (De-merged with M/s DLF Homes Developers Ltd.), DLF Hyde Park Estate Sale Office, Chandigarh Siswan Road, Mullanpur Barrier, Mullanpur, District SAS Nagar, Punjab through its Chairman/Managing Director/Director/Authorized Signatory. 

…Appellants/opposite parties

V e r s u s

Dr.Shruti Aggarwal w/o Dr.Ashish Aggarwal R/o G-128, GH-2, Shikhar Apartments, Sector 5, MDC, Panchkula, Haryana.

…..Respondent/complainant

 

Present:-              Sh.Puneet Aggarwal, Advocate for the appellants.

                             Sh.Narender Yadav, Advocate for the respondent.

 

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BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS.PADMA PANDEY, MEMBER.

                             MR.RAJESH K. ARYA, MEMBER.

 

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   By this common order, we are going to dispose of the above captioned three appeals, as the issues involved therein, except minor variations, here and there, of law and facts are the same.

2.           These appeals have  been filed by the opposite parties-DLF Homes Panchkula Pvt. Limited (in short the appellants), feeling aggrieved by the orders dated 05.07.2021, 26.08.2021 and 26.08.2021 respectively, passed by the District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (in short the District Commission), whereby the consumer complaint bearing nos.488 of  2020 (Purnima Kapur and another Vs. DLF Universal Limited and another), 126 of 2021 (Amit Aggarwal Versus DLF Universal Limited and another) and 127 of 2021 (Dr.Shruti Aggarwal Versus DLF Universal Limited and another), filed by the respective complainant(s)/respondent(s) were partly allowed and the appellants/opposite parties were directed to refund the amount received by them towards Contingent VAT alongwith interest, compensation and litigation expenses.
3.           For disposal of these appeals, facts have been culled out from consumer complaint bearing no.488 of  2020 titled as Purnima Kapur and another Vs. DLF Universal Limited and another. Before the District Commission, it was the case of the complainants that they entered into Agreement dated 22.2.2013 for purchase of unit No.R2-E 808 FF (First Floor with parking No.P-1F in the project of the opposite parties, possession whereof was offered to them vide letter dated 15.02.2016. It was averred that before delivery of possession of the said unit, the opposite parties levied an illegal demand of Contingent VAT @Rs.14.55 per sq. feet i.e. Rs.1,23,804/-. Number of requests made to refund the said amount received towards Contingent VAT did not yield any result.
4.           In the reply filed, the opposite parties-DLF while admitting the factual matrix of the case, stated that all the demands raised in the final statement of account were as per terms and conditions agreed to between the parties and, as such, now the complainants cannot wriggle out of the same.  Pleading that there is no deficiency in providing service or adoption of unfair trade practice, prayer was made to dismiss the consumer complaint.  
5.           Similar were the contentions raised by the parties, in consumer complaints bearing nos.126 of 2021 (Amit Aggarwal Versus DLF Universal Limited and another) and 127 of 2021 (Dr.Shruti Aggarwal Versus DLF Universal Limited and another), out of which these appeals have arisen.
6.           The District Commission after hearing the contesting parties, and on going through the material available on record, partly allowed the consumer complaints, referred to above, and ordered the opposite parties to refund the amount received from the respective complainants toward Contingent VAT, alongwith interest, compensation and litigation expenses.
7.           Hence these appeals.    
8.           We have heard the contesting parties and have carefully gone through the material available on the record.
9.           The only moot question which falls for consideration before this Commission in these appeals is, as to whether, the appellants were justified in receiving the amount towards Contingent VAT from the complainants or not. It may be stated here that during the course of arguments we asked Counsel for the appellants to clarify as to under what circumstances, the appellants have received amount from the respondents towards Contingent VAT. He answered that since as per Punjab VAT Act, there is no clarity in this regard, as such, only to safeguard the interests of the respondents, the appellants evolved the mechanism for keeping the VAT provisional deposit which is to be refunded, when the right to take action gets extinguished or in case any action is taken with regard to its final liability; that there is a genuine doubt, as to the applicability of VAT even under the Punjab VAT Act and the authorities under the said Act at some stage may take an adverse view; and that the said VAT was taken in advance, as it would have been difficult for the appellants, to collect the same, in future, on demand having been raised by the competent Authorities. He stated that however, in case no demand is made by the competent Authorities, the appellants will return the amount received towards Contingent VAT with interest to the respondents. These submissions were also made by the appellants in the grounds of appeal in para no.2 which are reproduced hereunder:-

“……2. Because as far as State of Punjab is concerned, it has been issuing notices to some builders and the authorities are still not clear as to what should be the course of action. It is submitted that as per Punjab VAT Act, there is no clarity in the stand of the VAT authorities. Hence only to safeguard the interest of Complainants/ floor/unit buyers, the opposite parties evolved the mechanism for keeping the VAT provisional deposit to be refunded, when the right to take action gets extinguished, or in case any action is taken, the liability is finally decided. It remains undisputed that whatever would be the final VAT liability, if any, in terms of the Agreement that falls on the Complainants. Accordingly, a mutually acceptable medium as evolved whereby the Complainants had to deposit contingent VAT, which was to be kept by the Opposite Parties. Eventually if any demand is raised at any stage, the said deposit shall be used to defray the demand, and the shortfall/ excess shall be recovered/ paid back from the complainants. If no demand is raised and the proceedings gets time barred, the opposite parties would return the contingent deposit with interest accrued thereon.…..”.

 

10.           A bare perusal of the submissions made by the opposite parties in their written submissions and also by their Counsel during arguments in these appeals, reveal that it was only on the basis of assumptions and presumptions to the effect that the competent Authorities, in future, may raise demand in respect of Contingency VAT,  that huge amounts towards the same  were received from the respondents by the appellants. Not even a single document has been placed on record by the appellants to prove their case that the demand towards Contingency VAT was ever raised by any competent Authority. They also failed to provide this Commission any condition contained in the respective agreements, that the company was entitled to demand and receive the amount towards  Contingency VAT, in advance, even in the absence of demand thereof from any competent Authority. It is also not the case of the appellants that the amount collected from the respondents towards Contingency VAT stood deposited with the Government Department concerned. Thus, receiving such a huge amount from the respondents, in anticipation, based on hypothetical presumption that there may be such financial obligation in future, especially, putting a pre-condition for handing over the possession of the unit to the respondents, amounts to adoption of unfair trade practice, which has definitely caused a lot of agony, harassment and financial loss to the respondents. The District Commission was therefore right in ordering refund of the respective amounts received by the appellants from the respondents towards Contingency VAT, alongwith interest, compensation and litigation expenses.
11.            In view of the above discussion, it is held that the orders impugned passed by the District Commission in the consumer complaints, referred to above, being based on the correct appreciation of evidence and law on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
12.           For the reasons recorded above, these three appeals being devoid of merit must fail and the same stand dismissed with no order as to costs. The orders of the District Commission stand upheld.
13.           However, it is made clear that, in case, the said Contingent VAT is demanded by the Govt./competent Authorities, in future, the same shall be payable by the complainants/respondents, on production of relevant documents in that regard by the appellants to them (respondents). 
14.           Certified copies of this order be sent to the parties, free of charge and one copy thereof be placed in the connected case files.
15.           The concerned files be consigned to Record Room, after completion.

Pronounced

27.05.2022

Sd/-
[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

          MEMBER

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

Rg