Adjustment of excess paid service tax.

[Sanjeev Chauhan]

Respected All,

Kindly guide,

Suppose, a builder booked several flats in 2011-12 and received partial amount as advance from customers and also paid service tax on the same in 2011-12 (he did not collect service tax from their customers). 

In 2012-13, booking of 3 flats got cancelled and the builder return the advance received from customers (did not return s.t., as he did not collect it).

Now, the query is that , can he take the credit of the s.t. paid on the advance of cancelled flats in 2012-13 under Rule 6(3) of Service Tax Rules.

As per said Rule 6(3), service tax in respect of a taxable service, which is not so provided by him either wholly or partially for any reason, the assessee may adjust the excess service tax so paid by him against his service tax liability for the subsequent period, if the assessee has refunded the value of taxable service and the service tax thereon to the person from whom it was received.

Is subsequent period u/r 6(3) will be the very next month/ quarter or otherwise? In the instant case, what is the subsequent period:

1. Subsequent to the date of excess payment of s.t ? ;

or

2. Subsequent to the cancellation of flats ?

 Ultimately, whether the builder is eligible to take the credit of the above said excess paid service tax or not?

Regards.

AI Summary

Excess service tax adjustment: excess paid converts to Cenvat credit after refund or issuance of a credit note.
After the amendment, when an assessee has received payment or issued an invoice for a service not provided and has refunded the payment or issued a credit note for the unprovided service, the excess service tax paid may be taken as Cenvat credit and carried forward; the relevant subsequent period is the period after the refund or issuance of the credit note, not necessarily the immediately following return period. Confirmation is needed whether the tax was computed on a cum-tax basis when paid from the assessee's own funds.