M/S. Bga Realtors vs Tanmay Halder & 2 Ors.

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 31.07.2015, passed by the West Bengal State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in First Appeal No. 406/2014, "M/s. BGA Realtors versus Tanmay Halder & Ors.", vide which, while dismissing the appeal, the order dated 25.02.2014, passed by the District Forum Burdwan in consumer complaint No. 148/2012, allowing the said complaint, was upheld.

Briefly stated, the facts of the case are that the complainant Tanmay Halder entered into a sale agreement on 30.01.2010 with the petitioner/Opposite Party (OP)/Developer to purchase Flat 4C, Block-7, with a built-up area 809 sq.ft. in their project "Sparkin", including car parking space for a consideration of Rs. 15,35,000/-. Thereafter, a supplementary agreement dated 16.07.2010 was entered between the parties, according to which, the sale consideration for the flat was finalised as Rs. 14,14,000/- The complainant alleged that out of this amount, he had already paid a sum of Rs. 13,57,250/- to the OP Builder, but still, the OP failed to deliver the property within the period of 18 months from December 2009, as stated in the agreement. On the other hand, the OP issued a letter dated 13.12.2011 to the complainant, seeking payment of a sum Rs. 1,76,213 on various items, although the balance amount of Rs. 56,650/- only for the sale price of the said flat, was required to be paid. The complainant filed the consumer complaint in question, seeking directions to the OP to deliver him the possession of the flat at the agreed price, with all facilities and benefits and to pay him a compensation of Rs. 22,500/- for deficiency in service etc. and also to pay a compensation of Rs. 1 lakh against mental agony, alongwith litigation cost of Rs. 5,000/-.

On record, is a copy of letter dated 13.12.2011 issued by the OP Developer to the complainant, in which the details of items for which a sum of Rs. 1,76,213/- has been demanded from him, has been given and is reproduced as under:-

Total Flat value (including car parking)

Rs.14,14,000/-

Total amount received

Rs.13,57,350/-

Balance amount due

Rs.56650/-

Add:

a) Documentation fees

Rs. 7,070/-

b) Transformer installation and power distribution charges

Rs.25,000/-

c) Maintenance charges onetime for five years

Rs.35,000/-

d) DMC water tax (1st instalment : 25% of Rs.45,000/-)

Rs.11,250/-

e) Service tax against flat value @3.4%

Rs. 37,638/-

f) Service tax against maintenance charges @10.3%

Rs. 3,605/-

Rs.1,19,563/-

Total dues as on date :

Rs.1,76,213/-

The District Forum vide their order dated 25.02.2014 decided the case exparte against the OP Developer, but directed the complainant to pay a sum of Rs. 1,23,720/- to the OP within 45 days from the date of the order. The OP were also directed to arrange deed of conveyance after purchasing the stamp papers etc. within 15 days of payment, failing which they were liable to pay a compensation of Rs. 1 lakh to the complainant. While passing the above order, the District Forum directed payment of the amounts as reflected in the statement above, except the amounts mentioned at items (d), (e) & (f) which relate to the payment of water tax to the Municipal Corporation and service tax to the Government.

Being aggrieved against the order of the District Forum, the OP Developer challenged the same by way of an appeal before the State Commission. However, the said appeal having been dismissed vide the impugned order, the OP Developer is before this Commission by way of the present revision petition. It was observed by the State Commission that the OP did not inform the complainant earlier on any occasion, for payment of any amount for the supply of water and hence, no liability could be attributed to the complainant for payment of the same to the Durgapur Municipal Corporation. The State Commission also held that in accordance with clause 12(c) of the agreement, the complainant could not be held liable to pay service tax against the value of the flat @3.4%.

During hearing before us, the learned counsel for the petitioner stated that vide their letter dated 13.12.2011, they had raised a demand of Rs. 1,76,213/- against the complainant on various items stated therein. Out of this demand, a sum of Rs. 1,23,720/- had been found to be validly raised by the consumer fora below. The present dispute was relating to only 3 items concerned with payment of water tax and service tax only, and the total amount involved in the same was Rs. 52,493/-. The learned counsel has drawn attention to an affidavit filed on their behalf on 08.05.2017, in which it has been clarified that the Durgapur Municipal Corporation had assessed the water tax payable for each flat as Rs. 45,000/-. Out of this amount, 25% of the share had to be paid initially, meaning thereby that the payable demand for water tax was Rs. 11,250/- only. The learned counsel further stated that the demand for service tax as Rs. 37,638/- had now been reduced to Rs. 28,505/-. Further, the demand of Rs. 3,605/- towards service tax against maintenance charges had not yet been assessed and hence, the petitioner did not want to charge this amount at the moment. The learned counsel pleaded that a sum of Rs. 11,250/- as water tax and Rs. 28,505/- as service tax should be ordered to be paid to them by the complainant.

Per contra, the learned counsel for the respondent/complainant has drawn attention to the reply to the affidavit of the petitioner, submitted by them, saying that they had already deposited a sum of Rs. 1,23,720/- with the OP. The learned counsel for the petitioner stated at this stage that the said cheque had not been encashed by them. The learned counsel for the respondent/complainant further stated that the water tax was to be paid by the Developer himself and not by the purchaser, because the supply was not meant for residential purposes. Further, the OP Developer M/s. BGA Realtors had no service tax registration at the time of issuing the demand letter and hence, the service tax was not to be paid to them.

We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

As indicated above, the only issue to be decided at this stage is about the payment of water tax to the Durgapur Municipal Corporation, amounting to Rs. 11,250/- as 25% of the total amount of Rs. 45,000/- and the service tax amounting to Rs. 28,505/-. On record, is a letter dated 02.03.2011, sent by the Durgapur Municipal Corporation to the Petitioner, in which, it has been stated that the rate of contribution for each constructed flat will be Rs. 45,000/- per flat. It has also been stated that initially, a deposit of 25% of the total contribution amount shall have to be deposited within the month of March 2011. It is clear, therefore, that the allottees of plots are required to deposit a sum of Rs. 11,250/- as first instalment for the payment of water tax to the Durgapur Municipal Corporation. Further, it has been worked out that the total service tax payable shall be Rs. 28,505/-. The assessment of service tax against maintenance charges has not been made yet. It is evident, therefore, that in addition to the amount of Rs. 1,23,720/- as ordered by the Consumer Fora below, the complainant is liable to make payment of Rs. 11,250/- towards water tax and Rs. 28,505/- as service tax to the OP Builder. This revision petition is, therefore, allowed and the orders passed by the Consumer Fora below are modified to say that in addition to the amount of Rs. 1,23,720/- payable by the complainant to the petitioner, a sum of Rs. 11,250/- as water tax to the Municipal Corporation and a sum of Rs. 28,505/- as service tax to the Government, shall be paid by the complainant to the petitioner. It is further made clear that upon receipt of the said payments from the complainant, the OP Developer shall ensure that the possession of the property in question is duly delivered to the complainant after observing all formalities, including providing a copy of completion certificate etc. The conveyance deed for the said flat shall also be executed thereafter, preferably within a period of four weeks from the delivery of the possession. This revision petition stands disposed off accordingly with modification in the orders of the consumer fora below as stated above.