TMI Blog2013 (8) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be collected - It was the Directorate General of Service Tax which issued the circular saying that the amount is required to be collected and - the appellant cannot be blamed for believing that the amount is required to be collected - appellant took the precaution of collecting it as ‘contingent liability' and not as service tax per se – he also made it clear that in case the outcome of the judicial proceedings emerges in their favour, the amount would be refunded along with interest – appeal allowed in the favour of assessee. - ST/688/2012 - A/253/13/CSTB/C-I , S/190/13/CSTB/C-I - Dated:- 24-1-2013 - Shri P R Chandrasekharan And Shri Anil Choudhary, JJ. For the Appellant : Shri Jayesh Gogri, Chartered Accountant for the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontingent liability towards the service tax amount, if any, payable to the Central Excise department for the sale of the flats. It was also made clear at the time of collection of this contingent liability that the matter is pending decisions before various judicial forums and the amount will be returned if the outcome of the decision pending before various high courts are in favour of the builders. Subsequently, the Central Board and Excise vide a circular No. 108/02/2009-ST dated 29/01/2009 clarified as follows:- 3. The matter has been examined by the Board. Generally, the initial agreement between the promoters / builders / developers and the ultimate owner is in the nature of 'agreement to sell'. Such a case, as per the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice dated 22/04/2009 demanding a sum of Rs. 44,96,441/- collected as contingent liability under the provisions of Section 73A(2) of the Finance Act, 1994. The said notice was adjudicated vide order dated 22/06/2010 and the demand was confirmed along with interest thereon apart from imposition of penalty of Rs. 5,000/-. The appellant preferred an appeal and vide the impugned order the same was dismissed and hence the appellant is before us. 4. The learned Chartered Accountant for the appellant submits that they did not collect service tax from the flat buyers but collected a sum towards service tax as a contingent liability with a clear understanding that the same would be returned along with interest after the Courts decided the matter in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be collected. Nevertheless, the appellant took the precaution of collecting it as contingent liability' and not as service tax per se and also made it clear that in case the outcome of the judicial proceedings emerges in their favour, the amount would be refunded along with interest and subsequently when the matter was clarified by the Board finally vide Circular dated 29/01/2009 that the amount is not required to be collected by the builders, they returned the moneyt along with interest. In these circumstances, we are of the view that the provisions of Section 73A are not attracted at all to the facts of the present case. 9. In view of the above, the appeal is allowed. The stay application is also disposed of. - - TaxTMI - TMITa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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