2020 (9) TMI 40 - NAPA - GST

Profiteering - purchase of flat - allegation that the Respondent had denied the benefit of input tax credit by way of reduction of price - contravention of section 171 of CGST Act - penalty - HELD THAT - It has been revealed that the Respondent has not passed on the benefit of input tax credit to his buyers w.e.f. 01.07.2017 to 31.10.2018 and hence, the Respondent has violated the provisions of Section 171 (1) of the CGST Act, 2017. Penalty - HELD THAT - Since no penalty provisions were in existence between the period w.e.f. 01.07.2017 to 31.10.2018 when the Respondent had violated the provisions of Section 171 (1), the penalty prescribed under Section 171 (3A) cannot be imposed on the Respondent retrospectively. Accordingly, the notice dated 26.11.2019 issued to the Respondent for imposition of penalty under Section 171 (3A) is hereby withdrawn and the present penalty proceedings launched against him are accordingly dropped.

Summary

Issues:
1. Violation of Section 171(1) of the CGST Act, 2017 by not passing on the benefit of Input Tax Credit.
2. Determination of profiteered amount and violation of Section 171(1).
3. Alleged offense under Section 171(3A) and imposition of penalty.
4. Applicability and retrospective operation of penalty provisions under Section 171(3A).

Analysis:

1. The case involved a complaint where the Respondent was accused of not passing on the benefit of Input Tax Credit to buyers for a flat purchased after the introduction of GST. The DGAP conducted an investigation and found a denial of input tax credit, leading to profiteering and a violation of Section 171(1) of the CGST Act, 2017.

2. After issuing a notice to the Respondent and hearing both parties, the Authority determined the profiteered amount and held the Respondent in violation of Section 171(1). It was established that the Respondent had not reduced prices of flats to pass on the benefit of ITC, resulting in buyers paying more than necessary.

3. The Respondent was further alleged to have committed an offense under Section 171(3A) by not reducing prices and making buyers pay additional amounts. A notice was issued for the imposition of a penalty under this section, which the Respondent contested by citing a notification effective from January 1, 2020, regarding the prospective application of penalty provisions.

4. Upon careful consideration, the Authority noted the implementation of penalty provisions under Section 171(3A) from January 1, 2020, and the absence of such provisions during the period of violation. Consequently, the penalty could not be imposed retrospectively, leading to the withdrawal of the penalty notice and the conclusion of penalty proceedings against the Respondent.

In conclusion, the judgment addressed issues of non-compliance with Section 171(1) regarding Input Tax Credit benefits, determination of profiteered amounts, allegations of offense under Section 171(3A, and the retrospective applicability of penalty provisions. The decision highlighted the importance of procedural compliance and the limitations on retrospective penalties based on the effective date of relevant legislative provisions.