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2021 (11) TMI 282 - HC - Service TaxLevy of service tax - Residential Complex or not - construction of individual house/villas in residential complex having common areas, common address, common facilities etc. - doctrine of unjust enrichment - HELD THAT:- The provision of Section 65(91a) of the Finance Act, 1994 which contemplates about a building or buildings having more than 12 residential units. In the present case, each building is not having more than 12 residential units. On the other hand, individual sanction plan has been given by the local authority. Each being the residential unit, the attention drawn to the explanation by the learned counsel for the revenue also would be of little assistance to the revenue, even if we consider the residential unit in the background of the building or buildings, the residential units constructed by the respondent/assessee would not certainly fall under Section 65(91a) of Finance Act, 1994. Doctrine of unjust enrichment - HELD THAT:- As regards the doctrine of unjust enrichment plea raised by the assessee/respondent that only 40% of tax was collected under Karnataka Value Added Tax and not Service Tax on the purchase value as per the agreement entered into with the purchasers and limitations under Section 11B of the Central Excise Act would not be applicable to the facts of the case has been extensively analysed by the CESTAT and a finding has been recorded that no contracts were entered with respect of collection of service tax and there is only mention of 40% VAT collection in the agreements. Accordingly, it has been held that the principles of unjust enrichment and the limitations under Section 11B of the Central Excise Act would also be not applicable. The substantial question of law in favour of the assessee and against the revenue - appeal dismissed.
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