2014 (4) TMI 443 - AT - Service Tax

Demand of service tax reimbursement collected by the appellant from the buyers of the commercial property - whether or not a person, who is not an assessee, can recover any amount from anyone as representing service tax. - Passing of service tax as paid by the contractors to the buyers of flats - Held that - The Revenue cannot be allowed to receive service tax twice in respect of same construction activities, once from the contractor and the second time from the person who has collected the same. As such, we do not agree with the adjudicating authority that the appellant was required to deposit the service tax collected by him from his customers, once again in terms of provisions of section 73A, even though the same stand already deposited with the Revenue, through the contractors. Appellants have taken a categorical stand that the service tax received by them was to the tune of ₹ 3.24 crores approximately whereas the service tax paid from various contractors is to the tune of ₹ 3.48 crores. For the above proposition they have placed reliance on the Chartered Accountants certificate and has also placed various documentary evidence before the adjudicating authority - Revenue directed to verify facts - Matter remanded back - Decided in favour of assessee.

Issues Involved:
1. Jurisdiction of the Commissioner of Service Tax, New Delhi.
2. Applicability of Section 73A of the Finance Act, 1994.
3. Responsibility for depositing collected service tax with the government.
4. Verification of the amount of service tax collected and paid.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Commissioner of Service Tax, New Delhi:
The appellant argued that since the flats were constructed in Indirapuram, Ghaziabad, the Commissioner of Service Tax, New Delhi, lacked jurisdiction to initiate proceedings. The court found that the appellants were based in Delhi, and the dispute was about the collection and non-deposit of service tax, not the construction activity itself. Thus, the proceedings had to be initiated by officers with jurisdiction over the appellant's location in Delhi. The court found no merit in the appellant's jurisdictional challenge.

2. Applicability of Section 73A of the Finance Act, 1994:
Section 73A mandates that any person who collects an amount representing service tax must pay it to the credit of the Central Government. The court noted that the appellant collected service tax from customers and reimbursed it to contractors, who then deposited it with the Revenue. The court emphasized that the critical issue was whether the collected service tax was deposited with the government, either directly by the appellant or through contractors.

3. Responsibility for Depositing Collected Service Tax with the Government:
The adjudicating authority contended that the appellant should have deposited the collected service tax directly with the Revenue. The court disagreed, stating that as long as the service tax collected from buyers was deposited with the government-whether by the appellant or the contractors-the requirement was fulfilled. The court held that the Revenue could not demand the same service tax twice for the same construction activity.

4. Verification of the Amount of Service Tax Collected and Paid:
The appellant claimed that they collected approximately Rs. 3.24 crores as service tax and paid around Rs. 3.48 crores through contractors. The adjudicating authority acknowledged these figures but did not verify them. The court remanded the case to the adjudicating authority to verify the appellant's claim. If verified, no demand or penalty would stand against the appellant.

Conclusion:
The court set aside the impugned order and remanded the matter for verification of the factual aspects regarding the service tax collected and paid. If the appellant's claims were verified, no demand or penalty would be imposed.

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