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Cancellation of booking of flat will be considered as 'no service' and once it is clear that service is not provided, refund under Section 142(5) of the CGST Act, 2017 becomes admissible.

Section 142 of the CGST Act — Refund of Service Tax Deposit – The Appellant not holding Service Tax Registration, has filed appeal against the Order-ln-Original passed by the respondent. The appellant had booked a residential flat on 28.12.2015. The appellant cancelled the said flat, however, builder has not refunded service tax amount to the Appellant. Therefore, the appellant claimed refund of the service tax of Rs.1,90,313/- under the provisions of Section 11B of the Central Excise Act as applicable to Service Tax. The Adjudicating Authority held that once a consideration has been received prior to receipt of the completion certificate, the entire value of construction become taxable and mere cancellation of booking of flat does not mean that there was no service. Further the flat was booked by the Appellant on 28.12.2015 and booking was cancelled on 19.02.2019. The refund claim was hit by limitation of time. The petitioner submitted that cancellation of flats in case of construction activity starting at a later date will be treated as non-provision of service. Section 142 (5) is identical to Rule 6(3) of Service Tax Rules, 1994 and the refund cannot be rejected on the ground no time limit was prescribed under the service tax laws for return of tax on services not provided under the provisions of Rule 6(3) of service Tax Rules, 1994. The court observed that no service has been provided to the appellant in this case and therefore the provision of relevant date of one year and date of payment of payment as per Section 11B of CEA cannot be made applicable. Further, the claim is not hit by the doctrine of unjust enrichment.
Held that:- The Hon’ble High Court set aside the Order-in-Original No. dated 06.12.2019 and allow the appeal with consequential relief.—Haresh V Kagrana (Huf) Vs. Deputy Commissioner (Refund) CGST And CX Mumbai West [2020] 27 TUD Online 097 (Bombay)