DATE OF FILING : 26-09-2014
DATE OF S/R : 06.02.2015.
DATE OF FINAL ORDER : 30-12-2015
Dr. Binay Saha Ray
S/O. late Dr. Birendra Chandra Saha Roy
Kalitala Lane, Jyoti Bhawan, P.O. Podrah,
P.S. Sankrail, Howrah 711 109. …………………………………….. COMPLAINANT.
1. Spotlight Finance and Consultancy (P) Ltd.
1, Sarojini Naidu Sarani, Kolkata 700017
and also 12/1, Lindsay Street, Kol 700087
2. Sri Ratish Kumar Gupta
S/O. Sri Ramesh Kumar Gupta,
Director of Spotlight Finance and Consultancy (P) Ltd.
8B, Middleton Street, Kolkata 700 071.
3. Sri Ramesh Kumar Gupta
S/O. Late Bhaya Ram Gupta
8B, Middleton Street, Kolkata 700 071.
4. Smt. Shilpa Gupta
W/O. Sri Ritesh Kumar Gupta,
8B, Middleton Street, Kolkata 700 071.
5. Sikha Gupta
D/O. Sri Ramesh Kumar Gupta
8B, Middleton Street, Kolkata 700 071.
6. Sri Rajendra Kumar Gupta
S/O. Late Bhaya Ram Gupta,
Director of Spotlight Finance and Consultancy (P) Ltd.
22/1, Ballygunge Circular Road, Kolkata 700 019.
7. Smt. Bharti Gupta
W/O. Sri Rajendra Kumar Gupta
22/1, Ballygunge Circular Road, Kolkata 700 019.
8. Sri Raghav Gupta
S/O. Sri Rajendra Kumar Gupta
22/1, Ballygunge Circular Road,
Kolkata 700 019. ………………………………………OPPOSITE PARTIES.
P R E S E N T
Hon’ble President : Shri B. D. Nanda, M.A. ( double ), L.L.M., WBHJS.
Hon’ble Member : Smt. Jhumki Saha.
Hon’ble Member : Shri A.K. Pathak.
F I N A L O R D E R
- Complainant, Dr. Binay Saha Roy, by filing a petition U/S 12 of the C .P. Act, 1986 ( as amended up to date ) has prayed for a direction to be given upon the o.ps. to refund the excess amount of service tax of Rs. 7,138/- along with simple rate of interest, to pay Rs. 1 lakh as compensation along with other order or orders as the Forum may deem fit and proper.
- Brief fact of the case is that complainant bought one self contained flat in the multistoried building situated at ‘Tulip Garden’ having premises no. 219 and 220, Chandmari Road, Andul Road, Dist. Howrah, PIN 711109 vide Deed of Conveyance dt. 12-03-2013 on payment of full consideration amount of ₹ 9,59,504 i.e., ₹ 1318/- per sq.ft. for 728 sq.ft. vide annexure dt. 12-03-2013. And on being asked by the O.Ps., complainant further paid ₹ 29,648/- towards service tax vide annexure dt. 06-03-2013. But it is alleged by him that O.P.s had taken an excess amount of ₹ 7138/- as service tax violating the service tax rule Govt. Notification no. 36/2010-ST dt. 28-06-2010 w.e.f. 01-07-2010. So, complainant sent a letter to O.Ps. on 21-04-2014 asking for the refund of the excess amount being ₹7138/- vide Annexures ‘D’ and ‘E’ respectively. It also alleged that as per the Agreement for sale dt. 28-07-2010, O.Ps. agreed to install a chimney in the kitchen of complainant’s flat, but till the filing of this case, O.Ps. did not install the same. Even O.Ps. had not provided any possession letter to the complainant till date. For that purpose, too, complainant sent a letter to O.Ps. on 11-08-2014 vide annexure ‘F’. But O.Ps. remained silent. Neither they installed kitchen chimney nor they refunded the excess amount of service tax, not to speak of the supply of possession letter. So, being frustrated and finding no other alternative, complainant filed this instant case with the aforesaid prayers.
- Notices were served upon O.Ps. Only O.Ps. 1 and 2 appeared and filed W/V. So, the case was heard on contest against O.Ps. 1 and 2 and ex parte against the rest. .
DECISION WITH REASONS :
- We have carefully gone through the W/V filed by O.P.s 1 and 2 and noted its contests. O.P.2 is the constituted attorney of all other O.P.s and the director of O.P.1 as per Agreement for Sale dt. 28-07-2010 and Deed of Conveyance dt. 12-03-2013. In their W/V, they have made a simple denial of all allegations made out by the complainant against them, which is very much evasive in nature.
- In agreement for sale dt. 28-07-2010, O.P.s undertook to install a kitchen chimney as per ‘The Fourth Schedule’. But they did not comply with that provision which they provided at the time of entering in to the Agreement for Sale dt. 28-07-2010.
- O.Ps. have taken a plea that they have not taken any excess amount. But from Annexure dt. 06-03-2013, we find that complainant paid further ₹ 29,648/- vide cheque no. 6,22,878/- dt. 05-03-2013 drawn on SBI for which money receipt is issued by O.P. 1 vide Annexure ‘C’ showing the receipt of service tax. And from the memo of consideration attached with Deed of Conveyance dt. 12-03-2013, we find complainant paid ₹ 9,59,504/- on different dates towards purchase money of the flat.
- And from the annexure ‘e’ which is a government document, we find the claim of the complainant is justified. O.Ps. had taken an excess amount of ₹ 7138/- towards the service tax, which O.P.s should not have received from him. By not installing kitchen chimney in the complainant’s kitchen and by taking excess amount of service tax, O.Ps. definitely had adopted unfair trade practice which should not be allowed to be perpetuated. Moreover, o.p. nos. 3 to 8 have not appeared and filed written version wherefrom it is crystal clear that they have nothing to put forward in their favour against the allegations of the complainant. Accordingly, we are of candid opinion that it is a fit case where the prayers of the complainant shall be allowed. Points under consideration are accordingly decided.
In the result, the application succeeds.
Hence,
O R D E R E D
That the C. C. Case No. 536 of 2014 ( HDF 536 of 2014 ) be allowed on contest against o.p. nos. 1 & 2 and ex parte against the rest with costs.
That the O.Ps. are directed jointly and severally to install the kitchen chimney in the complainant’s flat within one month from this order i.d., Rs. 50/- per day shall be charged till actual installation and to refund Rs. 7,138/- to the complainant within one month from this order i.d. amount shall carry an interest @ 8% p.a. till actual payment.
The complainant do get an award of Rs. 3,000/- as compensation and Rs. 2,000/- as litigation cost and o.ps. are directed to pay Rs. 5,000/- within one month from this order i.d. amount shall carry an interest @ 8% p.a. till actual payment
The complainant is at liberty to put the decree into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
DICTATED & CORRECTED
BY ME.
( Jhumki Saha)
Member, C.D.R.F., Howrah.
