2021 (9) TMI 1103

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..... O R D E R This writ petition is filed by the petitioners claiming to be the flat owners of the residential apartment "Ranka Nest" constructed by the Builder M/s. Ranka International (Pvt.) Ltd. The Builder M/s. Ranka International (Pvt.) Ltd., was an assessee registered with the erstwhile Service Tax Department for payment of service tax on the taxable services under the heading 'construction of residential complexes'. It is claimed that by insertion of clause (zzzh) to Section 65 (105) of the Finance Act, 1994 bringing construction of complex services under the service tax ambit by Finance Act, 2005, service tax was paid by the assessee, collected from the petitioners herein after issuance of Circular bearing No.108/2009-ST date .....

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..... ted upon the issue and rejected the claim. Hence, no interference is warranted in the writ petition proceedings. 4. We have carefully considered the rival submissions of the parties and perused the material on record. 5. At the outset, it is significant to note that this petition is filed by the petitioners claiming to be the owners of the residential flats of "Ranka Nest". The Adjudicating Authority while passing the order in original has categorically observed that no evidence was placed before the authority correlating that the service tax amount collected from the claimant has been remitted to the government account and there is no evidence to show that the service tax amount received from the claimant is actually remitted to the gove .....

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..... point and then to examine the correctness or otherwise of the claim made by the petitioners. In the absence of factual findings before the Court, in the writ petition proceedings, this Court cannot exercise the functions of the assessing authority or the fact finding authority to ascertain the genuineness of the claim, in the absence of material documents like original invoices raised by the service providers and the details of the service tax paid by the petitioners. 7. For the foregoing reasons, we deem it appropriate to set aside the impugned order of the Tribunal and remand the matter to the Tribunal to reconsider the matter keeping in mind the decision of this Court in Commissioner of Central Excise (Appeals), Bangalore vs. KVR Const .....

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