Page 158 - GSTL_2nd April 2020_Vol 35_Part 1

60 GST LAW TIMES [ Vol. 35
tract which also involves sale of land. According to the Division Bench, the gross
consideration charged by a builder/promoter of a project from a buyer would not only
include an element of goods and services but also the value of undivided share of land
which would be acquired by the buyer and since neither the Act nor the Rules framed
therein provide for a machinery provision for excluding all components other than service
components from ascertaining the measure of service tax, the same cannot be levied.
33. We are in complete agreement with the above view.
34. Though Sri Swaroop, Counsel for respondents sought to contend
that construction of the complex is also a ‘works contract’ and falls under Section
66E(h), we do not accept the said interpretation because if such an interpretation
was to be correct, the Legislature would not have created a separate category of
services relating to construction of a complex in clause (b) of Section 66E, and the
same cannot be rendered otiose by the Court.
35. Though a plea was also raised by the respondents about the main-
tainability of the Writ Petition, we are of the opinion that the claim in the Writ
Petition is for refund of the amount collected as service tax without authority of
law. Article 265 of the Constitution of India states that ‘no tax shall be levied or
collected except by authority of law’.
36. In Corporation Bank v. Saraswati Abharansala [2009 (1) SCC 540 = 2010
(18) S.T.R. 513 (S.C.)], the Supreme Court interpreted this constitutional provi-
sion and held that all acts relating to the imposition of tax providing, inter alia,
for the point at which the tax is to be collected, the rate of tax as also its recovery
must be carried out strictly in accordance with law. In that case, the assessee had
paid excess amount of tax to the State, which the State had refused to refund and
the Supreme Court held that the Writ Petition to recover the excess amount paid
by the assessee, was maintainable.
37. In the instant case also, there are no disputed questions of fact,
which need to be gone into for deciding the claim for refund and since the claim
for refund is based on the decision of the Delhi High Court in Suresh Kumar
Bansal’s case (supra) which was decided on 3-6-2016, and since the application
for refund was filed on 19-8-2016, barely two months after the decision of the
Delhi High Court in Suresh Kumar Bansal’s case (supra), it cannot be said that
there is any inordinate delay in the petitioners seeking refund of the tax paid by
them to the 4th respondent.
38. For all these reasons, this Writ Petition is allowed and the 1st re-
spondent is directed to refund a sum of Rs. 33,77,539/- to the petitioners with
interest @ 9% per annum from the date of payment of the same by the petitioners
to the 4th respondent i.e., 19-6-2014 till the date of payment to the petitioners. No
costs.
39. Pending miscellaneous petitions, if any, shall stand closed. No or-
der as to costs.

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