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2019 (9) TMI 1251 - NAPA - GSTProfiteering - project Paramount Emotions situated in GH-05A, Sector 1, Greater Noida - benefit of Input tax credit not passed on - reduction in the price of flat - section 171 of CGST Act, 2017 - Imposition of penalty - HELD THAT - The Applicant No. 1 had booked a flat with the Respondent in his project Paramount Emotions situated in GH-05A, Sector 1, Greater Noida and was allotted Apartment No. E301 in the Easy Tower of the project by the Respondent. It is also revealed that the Applicant No. 1 had filed a complaint on 19.06.2018 with the Uttar Pradesh State Screening Committee on Anti-Profiteering alleging that the Respondent had not passed on the benefit of ITC to him as per the provisions of Section 171 (1) of the CGST Act, 2017 and accordingly action should be taken against him. The DGAP has correctly assessed the additional ITC ratio as 2.42% and by applying this ratio to the payments made on or after 01.07.2017, has also correctly computed the profiteered amount as ₹ 3,69,26,963/- as has been mentioned in Annexure-18 of the Report This amount also includes profiteered amount of ₹ 15,231/- to be paid to the Applicant No. 1 and Rs. to all the other 1152 buyers. This Authority hereby determines the profiteered amount as ₹ 3,69,26,963/- in terms of Rule 133 (1) of the CGST Rules, 2017 and directs the Respondent to pass on the benefit of ₹ 15,231/- to the Applicant No. 1 and ₹ 3,69,11,732/- to the rest 1152 buyers as given in Annexure-18 of the DGAP Report, along with interest @18% per annum to all the 1153 recipients from the dates from which the above amount was collected by him from the buyers till the payment is made, in terms of Rule 133 (3) (b) of the above Rules. Imposition of penalty - HELD THAT - It is evident that the Respondent has denied benefit of ITC to the buyers of the flats being constructed by him in his present project and resorted to profiteering in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has thus he has apparently committed an offence under section 171 (3 A) of the CGST Act, 2017 and therefore, he is liable for imposition of penalty.
Issues Involved:
1. Non-passing of Input Tax Credit (ITC) benefit by the Respondent. 2. Calculation and verification of the profiteered amount. 3. Legitimacy of discounts and benefits passed on by the Respondent. 4. Jurisdiction and applicability of GST rates and composite supply. 5. Compliance with GST filing and reporting requirements. 6. Allegations of overcharging and incorrect tax application by the Respondent. Detailed Analysis: 1. Non-passing of ITC Benefit: The Applicant No. 1 alleged that the Respondent did not pass on the benefit of ITC after the introduction of GST, as required by Section 171(1) of the CGST Act, 2017. The DGAP's investigation confirmed that the Respondent had availed additional ITC post-GST but did not pass on the benefit to the buyers, resulting in a profiteered amount of ?3,69,26,963/-. The Respondent's claim of passing on ?7,97,97,359/- as GST benefit was not substantiated with evidence, and the discounts given were found to be out of profit margins due to market conditions, not ITC benefits. 2. Calculation and Verification of Profiteered Amount: The DGAP calculated the profiteered amount by comparing the pre-GST and post-GST ITC ratios, which were 2.06% and 4.48%, respectively, indicating an additional ITC benefit of 2.42%. The DGAP's calculation was based on the turnover and ITC specific to the project under investigation, excluding figures from other projects. The Respondent's claim of passing on excess benefits was rejected due to lack of evidence and incorrect ledger entries. 3. Legitimacy of Discounts and Benefits Passed On: The Respondent's claim of passing on discounts to 26 buyers in August 2017 was not considered as ITC benefit since it was given before the ITC was received post-GST. The DGAP's investigation revealed that the discounts were due to market conditions and not related to ITC benefits. The Respondent's assertion of passing on ?6,51,81,470/- to 972 buyers was also rejected as the ledger entries did not specify ITC benefits. 4. Jurisdiction and Applicability of GST Rates and Composite Supply: The Applicant No. 1's claims regarding incorrect GST rates and composite supply were outside the jurisdiction of the Authority, which is mandated to ensure the passing of ITC benefits. The Applicant was advised to approach the appropriate assessing authority or the Authority on Advance Rulings for these issues. 5. Compliance with GST Filing and Reporting Requirements: The Respondent's single GST registration for multiple projects led to discrepancies in ITC and turnover figures. The DGAP's report confirmed that the figures used for calculating profiteering were specific to the project under investigation. The Applicant's claim of higher ITC based on combined figures from all projects was rejected. 6. Allegations of Overcharging and Incorrect Tax Application: The Applicant's allegations of overcharging GST on maintenance charges and Labour Cess were noted, but the Authority did not have jurisdiction to decide on these matters. The Applicant was advised to seek resolution from the appropriate authorities. Conclusion: The Authority determined the profiteered amount as ?3,69,26,963/- and directed the Respondent to pass on the benefit to the buyers with 18% interest per annum. The Respondent was also issued a Show Cause Notice for penalty imposition under Section 171(3A) of the CGST Act, 2017. The Commissioners of CGST/SGST Uttar Pradesh were directed to monitor compliance with this order.
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