2014 (3) TMI 735 - AT - Service Tax

Application of Section 73A - Whether service tax collected from the customers and kept in the escrow account and not paid to the Government would attract provisions of Section 73A of the Finance Act, 1994 or not - Held that - It can be seen that if a person has collected any amount as service tax, that amount has to be paid to the Government. In this case, question is whether that amount can be said to have been collected. Admittedly, the meaning of escrow account is that amount is kept with a third party and has to be disbursed to a person who is eligible to get the same as and when the issue attains finality. It is stated that the amount collected by the appellant was kept in escrow account and he has given an assurance to the buyer that if the amount is not liable to be paid, the same shall be paid with interest. It is only a deposit which is not taken into account of the appellant and kept in a separate account to ensure safety of money and to ensure disbursement to the ultimate customer. Needless to say that if the liability exists and if it is held that the appellant is liable to pay, the amount will have to be paid to the Government since it is in escrow account. Therefore Commissioner should have determined the liability and if there was liability, the amount in escrow account would have been paid to the Government. Therefore, at this stage, we cannot say that the amount has been collected as service tax and therefore, the clause (2) of Section 73A is attracted and the amount should have been paid to the Government by the appellant. It is not the case of the department that the appellant is liable to pay service tax on the service rendered - Decided in favour of assessee.

Summary

Issues:
Whether service tax collected from customers and kept in an escrow account attracts provisions of Section 73A of the Finance Act, 1994.

Analysis:
The appellant, engaged in construction activities, did not charge service tax on residential apartments constructed from 2006 to 2009. They collected amounts in an escrow account from buyers to safeguard against future service tax liability. The authorities demanded service tax of Rs. 2,44,17,471/- with interest and imposed a penalty of Rs. 5000/- under Section 77 of the Finance Act, 1994.

The main issue is whether the amount collected in the escrow account should be considered as service tax under Section 73A of the Finance Act, 1994. The appellant argued that the collected amount was a "caution deposit" and not service tax. They maintained separate accounts to return the amount to buyers if not liable for service tax. The Commissioner did not consider this argument, and the liability of service tax was not determined. Section 73A mandates payment to the Government of any amount collected as service tax, but in this case, the amount was held in escrow pending a final decision on liability.

The Tribunal analyzed the nature of the escrow account and determined that the amount was not collected as service tax but kept aside for safekeeping. The appellant assured buyers of refund with interest if not liable for service tax. Since the liability was not established, the Tribunal held that Section 73A did not apply. The impugned order demanding payment was set aside, and the appeal was allowed.