Service Tax Refund Admissible Where Flat Bookings Are Cancelled and Consideration Returned to Allottees: CESTAT Mumbai

Background and Context

The Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Mumbai, has delivered a significant ruling in Kanakia Spaces Reality Pvt. Ltd. Vs Commissioner of CGST & Central Excise concerning the entitlement of a real estate developer to claim refund of service tax originally paid on apartment booking advances, where those bookings were subsequently cancelled and the entire consideration — including the service tax component — was returned to the respective allottees.

The case involved three connected appeals, all directed against a common order passed by the Commissioner (Appeals-III), GST & CX, Mumbai, bearing Order-In-Appeal No. NA/GST/A-III/MUM/273-275/2019-20 dated 11.03.2020. The Tribunal took up all three appeals together for a consolidated hearing and disposal.


Facts of the Case

The appellant, Kanakia Spaces Reality Pvt. Ltd., is engaged in providing construction of residential complex services. In the course of its business, the appellant received booking advances from prospective purchasers of apartments under construction and duly discharged the applicable service tax on such amounts.

Subsequently, 29 allottees cancelled their respective bookings for various reasons. Upon cancellation, the appellant refunded the full booking amounts to each allottee, along with the corresponding service tax that had been collected and deposited with the Revenue.

Refund Claims Filed

Three separate refund claims were filed by the appellant:

Sr. No. Refund Claim Filed On Original Claim Amount Revised Claim Amount
1 06.03.2018 ₹23,98,303 ₹14,54,120
2 27.04.2018 ₹7,47,677 ₹7,47,677
3 29.06.2018 ₹3,68,617 ₹2,56,453
Total ₹35,14,597 ₹24,58,250

Details of Refund Claim Filed on 06.03.2018

Date of Cancellation Name of Customer Project Unit No. Original Refund
01-11-2017 Bhupendra S. Danu Levels B – 3403 ₹5,01,192
10-11-2017 Krunal Mahendra Gandhi Levels C-903 ₹1,12,500
21-12-2017 Arpit Khaitan Levels C – 2601 ₹22,500
16-10-2017 Nirmala Rose James Chettiar Rainforest D – 1203 ₹9,000
16-10-2017 Jahida Abdulsamad Pathan Rainforest C – 1303 ₹4,57,902
06-12-2017 Elsy Francis Nadar Zenworld B – 701 ₹9,000
06-12-2017 Elsy Francis Nadar Zenworld B – 702 ₹9,000
02-02-2018 Prathamesh Raorane Zenworld E – 402 ₹69,734
26-02-2018 Mr. Tushar Vasant Pawar Zenworld B – 901 ₹1,135
19-12-2017 Chandrakant Mohanlal Doshi Sevens G – 1503 ₹2,17,157
23-12-2017 Vivek Bhutta Sevens C – 1705 ₹45,000
Total ₹14,54,120

Details of Refund Claim Filed on 27.04.2018

Date of Cancellation Name of Customer Project Unit No. Original Refund
25-10-2017 Sukesh Goyal HUF Wallstreet B-914 ₹1,72,314
17-11-2017 Mamta Mittal Wallstreet B-312 ₹70,470
28-11-2017 Sanjay Kheta Wallstreet B-313 ₹1,43,802
10-03-2018 Kailash Chandra Agarwal Wallstreet B-702 ₹2,31,226
10-03-2018 Kailash Chandra Agarwal Wallstreet B-702 ₹1,29,865
Total ₹7,47,677

Details of Refund Claim Filed on 29.06.2018

Date of Cancellation Name of Customer Project Unit No. Original Refund
23-06-2017 Snehaben Dineshkumar Patel Rainforest H – 1303 ₹1,34,865
09-06-2017 Amit Brijvansh Singh Rainforest A 301 ₹73,156
15-06-2017 K Wing – Farhan Tambe Zenworld A 701 ₹48,432
Total ₹2,56,453

Departmental Action and Rejection of Refund Claims

Following the filing of the refund applications, the Department issued deficiency memoranda-cum-show cause notices proposing rejection of the claims on the ground of inadequate documentation. The Department sought, among other things:

  • Proof of payment of service tax
  • Copies of agreements executed with customers
  • Details of booking and subsequent cancellation
  • Evidence of remittance of service tax amounts back to the allottees

A consolidated adjudication order was passed rejecting all three refund claims. The appellant challenged this before the Commissioner (Appeals), whose common order dated 11.03.2020 upheld the rejection. The appellant thereafter approached CESTAT Mumbai.


Submissions Before the Tribunal

Appellant's Arguments

The appellant's counsel advanced the following contentions:

  1. The Commissioner (Appeals) had erroneously held that the case laws and circulars relied upon by the appellant pertained to the pre-negative list era and were therefore inapplicable. This reasoning was contested as legally unsound.

  2. The Department's interpretation — that services had already been rendered at the time of booking and that cancellation of a flat could not be treated as non-provision or partial non-provision of service — was characterised as wholly untenable. The very existence of the adjustment mechanism under Rule 6(3) of the Service Tax Rules demonstrated legislative recognition that cancellation equates to non-provision of service.