2021 (2) TMI 84

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....substantial question of law: "Whether the determination of service tax by the Central Excise Officer, is necessary .. making a demand under Section 73A(3) of the Finance Act, 1994?" 2. Facts leading to filing of this appeal briefly stated are that the assessee is engaged in the activity of development and construction of residential apartments. The assessee did not collect service tax on the activity of development and construction of apartments during the period from 2006 to 2009. The properties in dispute namely residential apartments, were constructed and completion certificate was obtained on 21.08.2009. Since there was no clarity on the liability of service tax, the assessee, while settling the accounts finally with the buy....

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....ice tax. The Tribunal held that the Commissioner, in any case, should have determined and thereafter, should have raised a demand under Section 73A(3) of the Act. In the aforesaid factual background, the revenue has preferred this appeal. 4. Learned counsel for the revenue, while inviting the attention of this Court to paragraph 2 of the agreement executed between the assessee and the buyer, a copy of which was produced before us, submitted that in view of clause 2 of the agreement, the assessee was liable to pay service tax to the revenue. It is also submitted that the assessee did not intimate about the collection of amount from the buyers of the home and about creation of escrow account. It is also submitted that the amount in questio....

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....3 STR 350 (KAR). Therefore, the substantial question of law framed in this appeal is required to be answered in favour of the assessee. 6. We have considered the submissions made on both sides. We propose to confine ourselves only to the substantial question of law on which this appeal has been admitted namely, whether determination of service tax by the Central Excise Officer, is necessary before making a demand under Section 73A(3) of the Finance Act, 1994. From perusal of Section 73A(5) of the Act, it is evident that the amount paid to the credit of the Central Government under sub-section (1) or sub-section (2) or sub-section (4) shall be adjusted against the service tax payable by the person on finalization of assessment or any othe....