Order date – 10 November 2022

 Facts –

• The Appellant, M/s Krishnakunj Developers Pvt Ltd, is a builder /developer who constructs dwelling Unit/Apartment for sale. The appellant is registered with the department for providing service under the head construction of residential complex service, man power supply service and works contract service, etc.
• Audit objection was raised that the appellant have not paid service tax on the amount received from the buyers of the flat/units towards society membership fee. Accordingly a show-cause notice was issued on 18/05/2017 for demanding the service tax with interest and penalty. 
• The appellant deposit the same and filed an refund request claiming that the demand as per audit objection is not tenable, as such amount was collected as the trustee of the flats/unit buyers, which is to be passed on to the RWA or society of flat owners once it is constituted. The revenue rejected the refund claim.
• Being aggrieve, the appellant had filed an appeal

Issue –

• Whether the service tax along with interest and penalty can be refunded?

Order –

• The Tribunal observed that the appellant have not passed on the burden of tax to any third person or to the buyer of the flats. In the facts and circumstance, it is the appellant who has borne the burden of tax. It does not make any difference whether the amount is debited in the profit and loss account or it is shown as amount receivable on the asset side in the balance sheet, in either case the burden falls on the appellant-assessee only.
• Hence the impugned order is set aside and appeal is allowed