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2025 Supreme(Online)(SCDRC) 127
IN THE INCOME TAX APPELLATE TRIBUNAL
AHMEDABAD “A” BENCH, AHMEDABAD
BEFORE Ms. SUCHITRA KAMBLE, JUDICIAL MEMBER AND
SHRI NARENDRA PRASAD SINHA, ACCOUNTANT MEMBER
IT(SS)A No.181/Ahd/2024
Assessment Years: 2014-15
Assistant Commissioner of
Income Tax,
Central Circle – 2(3),
Ahmedabad,
3
rd Floor, Aayakar Bhavan,
Ashram Road,
Ahmedabad - 380009
Vs.
Dharnidhar Developers,
A/102,
Sapath-IV, Opp. Karnavati
Club, S. G. Highway
Ahmedabad,– 380 015.
[PAN – AAHFD 3533 C]
(Appellants) (Respondents)
Assessee by Shri Vijay Mehta, AR
Revenue by Shri Ritesh Parmar, CIT-DR
Date of Hearing 17.02.2025
Date of Pronouncement 28.02.2025
MR. RAVINDER HOODA, MR. PANKAJ GOYAL, MR. RAJEEV ANAND
The court established that a builder's failure to deliver possession as per the Builder Buyer Agreement constitutes deficiency in service, entitling the buyer to compensation.
Headnote:(A) Consumer Protection Act, 1986 - Sections 2(1)(d), 12, 14, and 21 - Builder Buyer Agreement - Delay in possession - Complainant booked a flat and paid substantial amounts but did not receive possession within the stipulated time, leading to a complaint for deficiency in service and unfair trade practices. (Paras 1-7)
(B) Deficiency in Service - The court found that the builder failed to adhere to the terms of the agreement, constituting a deficiency in service and unfair trade practice. (Paras 6-7)
(C) Compensation - The complainant is entitled to compensation for the delay in possession at the rate of Rs.5/- per sq. feet and litigation costs. (Paras 7)
(D) Jurisdiction - The court ruled that the Consumer Commission has jurisdiction despite the builder's claim of arbitration. (Paras 2-3) (E) Final Directions - The builder is directed to hand over possession within two months and pay compensation for the delay. (Paras 7) (F)
Result: Complaint allowed.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:-
Brief facts are:
Complainant-Smt. Raj Kumari along with her husband-Anil Kumar jointly booked flat bearing No.4-B, 04th Floor, measuring 1819 sq. feet in Panaroma Tower at ILD Grand, Sector 37, Gurugram. Amount payable by complainant for subject flat was Rs.76,50,534/-, to be paid as per schedule of payment (Annexure-D) which is part of Apartment Buyer Agreement executed between parties at Gurugram on 14.01.2013. Subject flat was originally allotted to one Dilbagh Rai and Mohit Kukreja. Later on, complainant purchased it from original allottees with due intimation to OP and further payments have been made by her to OP. Original allottees namely: Dilbagh Rai and Mohit Kukreja had paid booking amount of Rs.3,00,000/- on 19.12.2012; deposited installment of Rs.8,94,510/- vide receipt dated 19.12.2012. Thereafter, complainant made payments of Rs.7,43,345/- vide receipt dated 09.01.2013 and Rs.54,00,000/- vide receipt dated 04.02.2013. In this way, total cost of subject flat supposed to be paid was paid, prior to handing over its possession to complainant by OP. As per clause 9 of agreement, OP was supposed to complete construction within 36 months computed from date of execution of agreement with further grace period of 180 days. Agreement was executed on 14.01.2013 and period of 36 months had expired on 13.01.2016 and further grace period of 180 days also expired on 13.07.2016; however possession of subject flat (bearing No.4B) has/had not been handed over to her, till date, by OP, who kept on delaying to handover possession perpetually and gave false dates persistently. As per plea; complainant has noticed that unit and tertiary facilitations are not going to be ready to move in near future. Completion of promised amenities along with subject unit would take sufficiently long time. Inter-alia on these pleas; by alleging deficiency in service of OP and adoption of unfair trade practice by it, complaint has been filed for issuance of directions to OPs to handover possession of subject flat; to pay Rs.5/- sq. yards of super area (1819 sq. feet) of subject flat per month for period of delay after expiry of period (36 months) and grace period (180 days). Compensation of Rs.2.00 lacs for mental agony, physical harassment and Rs.1.00 lacs for litigation has also been claimed. Text of complaint is supported by affidavit of Raj Kumari.
2. Upon notice, insurer raised contest. In its written defense, it is pleaded that complaint is not maintainable. It is admitted that agreement dated 14.01.2013 was entered into. It is pleaded that agreement provides for arbitration of dispute between the parties and so Consumer Commission has no jurisdiction. It is pleaded that complainant is not a consumer. They have booked subject flat not for bona fide personal use but for investment/commercial purpose. They have not hired any services from OP. In this regard, it is pleaded that whatever amount is agreed to be paid under agreement, it is towards sale consideration price alone and no part of it for hiring any service. Complainant booked two flats in same project. There is no deficiency in service of OP. By admitting that total sale consideration of flat is Rs.76,50,534/- it is pleaded that complainant made total payment of Rs.68,87,190/- towards sale consideration and Rs.2,38,122/- towards GST service tax and Rs.54.00 lacs paid by bank on behalf of complainant. It is admitted that OP has proposed to complete construction within 36 months from date of execution of agreement with further grace period of 180 days under normal circumstances. As per plea; delay in handing over possession, as per agreement, was due to financial crises faced by OP, down market in real estate sector. Somehow, OP is managing and construction of project is underway and it will be completed soon. Completion Certificate is yet to be obtained by OP and non-grant of it is the main reason behind non-delivery of possession to complainant. In such circ
