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2020 (6) TMI 675 - NAPA - GSTProfiteering - purchase of Flat in the Devaan project of the Respondent - allegation that the Respondent had not passed on the benefit of Input Tax Credit (ITC) availed by him by way of commensurate reduction in the price of the above flat - contravention of section 171 of CGST Act - Penalty - HELD THAT - This Authority under Rule 133 (3) (a) of the CGST Rules, 2017 orders that the Respondent shall reduce the prices to be realized from the buyers of the flats/shops commensurate with the benefit of ITC received by him as has been detailed above. Since the present investigation is only up to 30.06.2019 the DGAP is directed to further investigate the quantum of ITC benefit under Rule 133 (4) of the above Rules which the Respondent is required to pass on to the home/shop buyers w.e.f. 01.07.2019 till 30.06.2020 or till the Completion Certificate is obtained by the Respondent whichever is earlier as the project is still under execution and submit his report as per the provisions of Rule 129 (6) of the above Rules. Penalty - HELD THAT - The Respondent has denied benefit of ITC to the buyers of the flats being constructed by him in his above project in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has thus resorted to profiteering. Hence, he has committed an offence under Section 171 (3A) of the CGST Act, 2017 and therefore, he is apparently liable for imposition of penalty under the provisions of the above Section. Accordingly, a Show Cause Notice be issued to him directing him to explain why the penalty prescribed under Section 171 (3A) of the above Act read with Rule 133 (3) (d) of the CGST Rules, 2017 should not be imposed on him.
Issues Involved:
1. Alleged profiteering by the Respondent in respect of the purchase of a flat. 2. Non-passing of the benefit of Input Tax Credit (ITC) by the Respondent. 3. Calculation and verification of the profiteered amount. 4. Compliance with Section 171 of the Central Goods and Services Tax (CGST) Act, 2017. 5. Imposition of penalty under Section 171 (3A) of the CGST Act, 2017. Issue-wise Detailed Analysis: 1. Alleged Profiteering by the Respondent: The Applicant alleged that the Respondent did not pass on the benefit of ITC availed by him by way of a commensurate reduction in the price of a flat in the "Devaan" project. The Standing Committee on Anti-profiteering forwarded the complaint to the Director General of Anti-Profiteering (DGAP) for detailed investigation. 2. Non-passing of the Benefit of ITC: The DGAP conducted an investigation covering the period from 01.07.2017 to 30.06.2019. The Respondent submitted multiple documents, including GSTR-1 and GSTR-3B returns, VAT returns, balance sheets, and details of ITC availed. The Respondent claimed to have passed on the GST benefit of ?23,575/- to the Applicant in March 2019 and stated that the ITC benefit had been passed on to all eligible homebuyers. However, the DGAP found that the Respondent had not reduced the basic prices of the flats/shops by 10.59% due to the additional benefit of ITC. 3. Calculation and Verification of the Profiteered Amount: The DGAP calculated the ITC as a percentage of the total turnover and found that the Respondent had benefited from additional ITC to the tune of 10.59% post-GST. The profiteered amount was quantified as ?4,83,04,691/- for the period from 01.07.2017 to 30.06.2019, including GST. This amount included ?57,488/- in respect of the Applicant. The DGAP verified the credit notes and payment ledgers of selected homebuyers and confirmed the benefit already passed on by the Respondent. 4. Compliance with Section 171 of the CGST Act, 2017: The DGAP concluded that the Respondent had contravened the provisions of Section 171 by not passing on the additional benefit of ITC to the recipients. The Respondent was directed to return the ITC benefit to the eligible recipients along with interest @ 18% from the date of collection. The DGAP was also directed to further investigate the quantum of ITC benefit for the period post-June 2019 till the completion certificate is obtained. 5. Imposition of Penalty under Section 171 (3A) of the CGST Act, 2017: The Authority found that the Respondent had denied the benefit of ITC to the buyers in contravention of Section 171 (1) of the CGST Act, 2017, thus resorting to profiteering. Consequently, the Respondent was liable for imposition of penalty under Section 171 (3A). A Show Cause Notice was to be issued to the Respondent to explain why the penalty should not be imposed. Conclusion: The Respondent was ordered to reduce the prices commensurate with the benefit of ITC received and to return the profiteered amount to the eligible recipients along with interest. The Commissioners of CGST/SGST Haryana were directed to monitor the compliance of this order, ensuring the amounts and interest are paid within three months, failing which recovery actions would be initiated. A detailed report on the compliance was to be submitted within four months.
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