2020 (2) TMI 1237 - NAPA - GST

Profiteering - supply of construction services related to the purchase of Flat - benefit of Input Tax Credit (ITC) by way of commensurate reduction in the price of the apartment purchased by him, not passed on - contravention of section 171 of CGST Act - HELD THAT - It is clear from the plain reading of Section 171(1) mentioned above that it deals with two situations one relating to the passing on the benefit of reduction in the rate of tax and the second pertaining to the passing on the benefit of the ITC. On the issue of reduction in the tax rate, it is apparent from the DGAP s Report that there has been no reduction in the rate of tax in the post GST period. The only issue to be examined is as to whether there was any net benefit of ITC with the introduction of GST. On this issue, the DGAP in his Report, has stated that ITC as a percentage of the turnover which was available to the Respondent during the pre-GST period (April 2016 to June-2017) was 0.94% and during the post-GST period (July-2017 to March-2019), it was 0.39%. On this basis, the DGAP has reported that the Respondent had neither benefited from additional ITC nor had there been a reduction in the tax rate in the post-GST period and therefore it does not qualify to be a case of profiteering - there are no reason to differ from the Report of DGAP and we therefore agree with his findings that the the provisions of Section 171 of the CGST Act 2017 have not been contravened in this case. The instant case does not fall under the ambit of Anti-Profiteering provisions of Section 171 of the CGST Act, 2017. Therefore, the allegation that the Respondent has not passed on the benefit of ITC in this case is not found sustainable. Accordingly, the application filed by Applicant No. 1, requesting action against the Respondent for alleged violation of the provisions of Section 171 of the CGST Act, is dismissed as not maintainable.

Summary

Issues Involved:
1. Whether there was any violation of Section 171 of the CGST Act, 2017.
2. Determination of the quantum of profiteering, if any.

Issue-wise Detailed Analysis:

1. Violation of Section 171 of the CGST Act, 2017:
The primary issue was whether the Respondent had passed on the benefit of Input Tax Credit (ITC) to the Applicant by way of a commensurate reduction in the price of the apartment, as mandated by Section 171 of the CGST Act, 2017. The Applicant alleged that the Respondent had not passed on the benefit of ITC following the implementation of GST from 01.07.2017. The Director General of Anti-Profiteering (DGAP) conducted a detailed investigation and reported that the ITC as a percentage of the turnover available to the Respondent during the pre-GST period (April 2016 to June 2017) was 0.94%, and during the post-GST period (July 2017 to March 2019), it was 0.39%. The DGAP concluded that the Respondent had neither benefited from additional ITC nor had there been a reduction in the tax rate in the post-GST period, thus, the provisions of Section 171 were not contravened.

2. Quantum of Profiteering:
The DGAP's investigation included examining the ratio of ITC to turnover during the pre-GST and post-GST periods. The DGAP found that the rate of tax in the post-GST period was higher than the pre-GST period, and the percentage of ITC availed by the Respondent in the post-GST period was very low compared to the pre-GST period. Therefore, it was concluded that there was no profiteering as defined under Section 171 of the CGST Act, 2017. The Applicant's claims regarding the type of sale consideration, pre-GST impact of ITC on cost, and other factors were not considered sustainable because the DGAP's method of comparing the ratio of ITC to turnover was deemed appropriate.

Additional Points Raised by the Applicant:
The Applicant argued that the DGAP did not consider various factors such as the type of sale consideration (Subvention Plan or CLP Plan), pre-GST impact of ITC on cost, and the project report submitted to RERA. The Applicant also cited previous judgments by the National Anti-Profiteering Authority in similar cases. However, the Authority found that the DGAP's methodology was appropriate and that the provisions of Section 171 were not contravened in this case.

Conclusion:
The Authority concluded that the instant case did not fall under the ambit of Anti-Profiteering provisions of Section 171 of the CGST Act, 2017. The allegation that the Respondent had not passed on the benefit of ITC was not found sustainable. Therefore, the application filed by the Applicant was dismissed as not maintainable.