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TMI Blog2019 (11) TMI 1082X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 2,39,43,820/-. Penalty - HELD THAT:- It is evident that the respondent has denied the benefit of ITC to the buyers of the flats being constructed by him in contravention of the provisions of section 171(1) of the CGST Act, 2017 and has thus committed as per the provisions of section 171 (3A) of the CGST Act, 2017 - a SCN be issued to him directing him to explain why the penalty prescribed under the above provision should not be imposed. - Case No. 57/2019 - - - Dated:- 19-11-2019 - SH. B. N. SHARMA, CHAIRMAN, SH. J.C. CHAUHAN, TECHNICAL MEMBER, MS. R. BHAGYADEVI, TECHNICAL MEMBER, SH. AMAND SHAH, TECHNICAL MEMBER. Present: - Sh. Saurabh Prabhakar for Applicant No. 1, Smt. Sangeeta Ahlawat Applicant Nov 4 and Sh. Manish Malik Applicant No. 9 in person. Sh. Akshat Aggarwal, Deputy Commissioner for the DGAP. Sh. Narendra Kumar, C.A., Authorised Representative for the Respondent ORDER 1. The present Report dated 28.02.2019 has been furnished by the Applicant No. 13 i.e. the Director General of Anti-Profiteering (DGAP), under Rule 129 (6) of the Central Goods Services Tax (CGST) Rules, 2017. The brief facts of the present case are that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 01.07.2017 to 31.08.2018. The written submissions of the Respondent are summed up as follows:- a. That the Respondent was under regular/normal Scheme with regard to Value Added Tax (VAT) in Haryana and as such, he had availed VAT credit in the pre-GST period on the purchases made during that period b. That as the service of construction of affordable housing, provided by the Respondent, was exempted from Service Tax, vide Notification No. 25/2012-ST dated 20.06.2012, as amended by Notification No. 9/2016-ST dated 01.03.2016, the Respondent was exempted from any Service Tax liability on his receipts in the pre-GST era (01.03.2016 onwards) and was also not eligible to avail any CENVAT credit. As Service Tax not leviable on the projects related to Affordable Housing Policy, 2013, he did not charge any Service Tax from his clients w.e.f. 01.03.2016. c. That the Respondent did not contest the fact that the benefit of ITC had not been passed on to the recipients by him prior to this investigation. d. That the Respondent contended that since credit of Central Excise Duty was not allowed to the developers/builders in the pre-GST regime, the Central Excise Duty was cost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VAT GST Other Total Payable Total Paid 1. Application for allotment (Date of Draw) 08.10.2015 5.00% 1,07,700 3,328 1,11,028 1,11,028 2. On allotment 20.08.2015 20.00% 4,30,800 15,078 4,45,878 4,45,878 3. Date of Draw + 6 months 17.02.2016 12.50% 2,69,250 2,69,250 2,69,250 4. Date of Draw+12 Months 05.08.2016 12.50% 2,69,250 2,69,250 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies or Transactions which shall be treated neither as a supply of goods nor a supply of services) read as Sale of land and, subject to clause (b) of paragraph 5 of Schedule sale of building . Further clause (b) of Paragraph 5 of Schedule II of the Central Goods and Services Tax Act, 2017 read as (b) construction of a complex, building, civil structure or a part thereof, including a complex or building intended for sale to a buyer, wholly or partly, except where the entire consideration has been received after issuance of completion certificate, where required, by the competent authority or after its first occupation, whichever is earlier . Thus, the ITC pertaining to the units which were under construction but had not been sold was provisional ITC which may be required to be reversed by the Respondent, if such units remained unsold at the time of issue of completion certificate, in terms of Section 17(2) Section 17(3) of the Central Goods and Services Tax Act, 2017, which read as under:- Section 17 (2) Where the goods or services or both are used by the registered person partly for effecting taxable supplies including zero-rated supplies under this Act or under the Integ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be collected from the above Applicant retrospectively or prospectively, The DGAP has further submitted that as the Respondent had not mentioned any turnover in his VAT Returns or ST-3 Returns on account of exemption, the gross receipts from the homebuyers as per the homebuyers list, had been considered as the turnover for determining the ratio of VAT credit available to the Respondent and the turnover in the pre-GST Period. He has also claimed that post-GST, the Respondent was eligible to avail ITC of GST paid on inputs and input services including on the sub-contracts, From the data submitted by the Respondent, duly verified from his returns filed during the pre-GST period from April, 2016 to June. 2017 and the post-GST period from July, 2017 to August, 2018, the details of the ITC availed by the Respondent and the Respondents turnover the DGAP has computed the ratio of ITC to the turnover during the above periods, as has been furnished in the Table-B below:- Table-B (Amount in Rs.) S.No. Particulars April, 2016 to March, 2017 April, 2017 to June, 2017 Total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also observed that the Central Government, on the recommendation of the GST Council, had levied 18% GST (effective rate was 12% in view of 1/3 rd abatement on value) on construction service, vide Notification No. 11/2017-CentraI Tax (Rate) dated 28.06.2017. The effective GST rate on construction service in respect of affordable and low-cost housing was further reduced from 12% to 8%, vide Notification No. 1/2018-CentraI Tax (Rate) dated 25,012018. The DGAP has also contended that in view of the change in the GST rate after 01.07.2017, the issue of profiteering had been examined by him it-I two parts, i.e. by comparing the applicable tax rate and the availability of ITC during the pre-GST period from April, 2016 to June, 2017 when only VAT was payable with (1) the post-GST period from July, 2017 to 24.01.2018 when the effective GST rate was 12% and (2) with the GST period from 25.01.2018 to 31.08.2018 when the effective GST rate was 8%, Accordingly, on the basis of Table-B above, the comparative figures of tax rate, ratio of ITC to the Respondent s turnover in the pre-GST and post-GST periods, the recalibrated basic price on account of benefit Of ITC credit and the excess collec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I=H*12/8% 3,68,12,632 2,48,81,200 6,16,93,832 11. Commensurate demand price (Rs.) J=H+I 34,35,84,561 33,58,96,204 67,94,80,766 12. Excess Collection of Demand or Profiteered Amount (Rs.) K=G-J 2,68,17,079 2,62,16,996 5,30,34,074 9. The DGAP has further claimed that from the Table- C above, it appeared that the additional ITC of 724% of the turnover, should have resulted in commensurate reduction in the base price as well as cum-tax-price and therefore, in terms of Section 171 of the Central Goods and Services Tax Act, 2017, the benefit of the aforesaid additional ITC that has accrued to the Respondent. was required to be passed on to the recipients, The DGAP has also contended that the amounts collected by the Respondent from the above Applicants and the other home buyers during the period from 01.07.2017 to 24.01.2018, the amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er recipients, which has not been done by him and hence provisions of Section 171 of the Central Goods and Services Tax Act, 2017 have been contravened by the Respondent inasmuch as the additional benefit of ITC @ 724% of the base price received by the Respondent during the period from 01.07.2017 to 31.08.2018 has not been passed on to the Applicants and other recipients. He has further claimed that on this account, the Respondent has realized an additional amount of ₹ 5,25,09,127/-as has been mentioned in Annexure-25 which includes the profiteered amount @7.24% of the turnover (basic price) from 1384 recipients, He has also intimated that these recipients were identifiable as per the documents on record as the Respondent has provided their names and addresses along with the unit no, allotted to them. Therefore, he has averred that this additional amount of 5,25,09,127/- was required to be returned to such eligible recipients, He has also stated that the Respondent has supplied construction service in the State of Haryana only. The DGAP has further stated that the present investigation covered the period from 01.07.2017 to 31.08.2018 only and profiteering if any, for the peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed to him and the Excise Duty was cost to him before the GST regime so he had obtained benefit Of additional ITC post-GST which he was ready to pass on to his customers subject to adjustment of any ITC which would be cost to him at the time of completion of the project because he would not be able to claim refund of excess amount of ITC after completion of the project as per the Notification No. 15/2017-Central Tax (Rate) dated 28 June, 2017. III. That based on the provision of Section 171 of CGST Act, 201% he has worked out actual benefit of Excise Duty which came to ₹ 3,04,63,210/-, pertaining to the sold and unsold units on the basic purchase prices of the materials purchased during the period from July, 2017 to March, 2019 on which Excise Duty was applicable before the GST regime but credit of Excise Duty was not allowed to him as a developer t builder. He has not considered/ reduced the ITC amount which would be cost to him at the time of completion of the project in the above calculation of amount of Excise Duty. IV. That the following duties and taxes were applicable before the GST regime. a) Under Central Government duties and taxes: Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - only in cash as GST and the remaining amount of output liability has been met by the Respondent during the investigation period, out of the ITC admissible to him, the details of which are given below:- Calculation Of ITC Benefit for passing over to the buyers (Table -1) Sl.No. Particulars 01.07.2018 to 24.01.2018-@ 12% 25.01.2018 to 31.08.2018-8% Total (Post-GST) Remarks 1. Total Taxable Value / Turnover 3307,15,750 352,90,000 6,60,05,750 From Table C of DGAP report 2. GST Payable 3,96,85,890 3,68,23,200 6,65,09,090 From Table C of DGAP report 3. Cash paid 6,200 27,425 33,625 No other amount has been paid by Respondent Annexure-1 attached 4. Paid through ITC (calculated payable amount minu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability was based on the turnover on monthly basis and GST was collected on that turnover only hence, any reduction due to sold area as against the saleable area has no relevance. As and when unsold saleable area would be sold, proportionate GST would be determined during that particular month and output liability would again be liable to be paid either es set-off against the ITC or in cash. Hence, giving any discount for the same during the investigation period was not justified. (iv) That the entire saleable area by the Respondent was not to be sold at the same rate but on different rates as per the Haryana Affordable Housing Policy-2013, according to which the flat area was to be sold at the maximum rate of ₹ 4,000/- per sq, ft. on carpet area basis and the Balcony area was to be sold at the maximum rate of ₹ 500/- per sq. ft. on the carpet area basis. Hence, any consideration of input based on the sq. ft. area basis, would be injustice to the buyers. The best way would be to allow ITC based on the amount, as the GST was also charged on the amount and not on the sq, ft. area. (v) That the Respondent has to file GSTR every month and any output liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, needed to be passed on to the recipients. (xi) That the total amount of profiteering was as follows: From 01.07.2017 to 24.01.2018 ₹ 4,26,33,229 After 25.01.2018 to 31.08.2018 - ₹ 2,71,65,732 Total - ₹ 6,97,98,961 The above amount was payable as ITC refund alongwith interest @ 18% p.a. from the due date until the date of refund to all the existing buyers as all of them were identifiable. Since the Respondent has right to charge interest on the delayed payments including GST component. as per the foot note given in the demand note issued to the buyers, the interest was admissible to the buyers also from the due date of payment. (xii) That the Respondent has issued Call Notice/Intimation Letter to the buyers from time to time though GSTIN and dates have been mentioned in such Call Notices yet the same have not been issued in the appropriate format as per CGST Act, 2017 and it has not been titled as Tax Invoice-cum-Call Notice . Therefore, necessary action as may be deemed fit may be taken against the Respondent. (xiii) That with regard to para 23 of the Report dated 28.02.2018, it is mentioned that output liability of GST was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he builder or developer would not be required to pay GST on the construction service of fiats etc, in cash but would have enough ITC in his books to pay the output GST and hence, he Should not recover GST payable on the flats from the buyers. He can recover GST from the buyers of lats only if he recalibrated the cost of the fiat after factoring in the full ITC available in the GST regime and has reduced the ex-GST price of flats. However, the Respondent has charged GST @ 12% and 8% forcibly from the Applicants knowing fully well that he could not charge the same as per the CGST Act and the above Rules and had not re-caliberated the price of the flats inspite of the media reports. objections raised by the buyers and numerous number of mails and personal visits to the office of the Respondent and hence exemplary penalty should be imposed on him (xix)That power to determine the methodology and procedure as to whether reduction in the rate of tax or benefit of ITC has been passed on by a registered person to the recipient by way of commensurate reduction in prices vests with this Authority under Rule 126 of the Central Goods and Services Tax Rules, 2017, (xx) That in the GST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to be reversed in each tax period. Thus. the entire amount of GST collected from the customers in proportion to unsold flats. would be required to be deposited with the revenue authorities during the respective month in cash. For the purpose of calculation of percentage of profiteering in the pre and post-GST scenario, the apportioning of ITC on the basis of saleable and un-sold area would not be correct approach, Builder has the right to independently determine price of the building sold after 01.07.2017 and also have the right to the entire amount of ITC till receipt of OC. After receipt of OC also builder has the right to determine prices independently and in no case builder was getting impacted due to the application of Section 17 (2). At each stage builder has independent right to determine his price, based on prevailing market conditions. In no way section 17 (2) is prejudicial to the rights of builder. Hence for the purpose of determining actual profiteering for the buyers Who had booked flats before 01.07.2017 appropriate application of Section 17 (2) was required to be undertaken. Even if the Section was applied as per the DGAP s Report, the equivalent amount def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ass on the benefit of ITC in case he wanted to do so he could have approached the Advance Ruling Authority as provided under Chapter XVII (18) of CGST Act, 2017 to seek clarification for computation of the exempt ITC as per Section 97 (2) (d) of the above Act which states as under: 97. (1) An applicant desirous of obtaining an advance ruling under this Chapter may make an application in such form and manner and accompanied by such fee as may be prescribed, stating the question on which the advance ruling is sought. 97(2) The question on which the advance ruling is sought under this Act, shall be in respect of,- (a) classification of any goods or services or both; (b) applicability of a notification issued under the provisions of this Act; (c) determination of time and value of supply of goods or services or both; (d) admissibility of input tax credit of tax paid or deemed to have been paid; (e) determination of the liability to pay tax on any goods or services or both; (f) whether applicant is required to be registered; (g) whether any particular thing done by the applicant with respect to any goods or services or both amounts to or res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uce the amount of profiteering, However, above figures were hypothetical since the entire calculations were required to be made afresh in view of the above arithmetical errors Thus, the excess collection of demand or profiteering amount worked out to be ₹ 6,97,98,961/- as per Annexure-I, without giving any consideration of unsold and saleable area as erroneously calculated by the DGAP. (xxxiii) That the methodology used for the computation of profiteering employed by the DGAP was different than what has been prescribed in the Statute with regard to saleable and un-sold area as per Section 17 (2) 17 (3). The DGAP in his Report, in pars 16, has mentioned a mechanism for calculating exempt ITC in order to arrive at the percentage of profiteering. The DGAP has relied on clause (b) of Paragraph 5 of Schedule II to arrive at the value of exempt ITC for tax period from 1 st July, 2017 to 31 st August, 2018. However, as per Notification No. 16/2019 Central Tax dated 03.2019 also known as the Central Goods and Service Tax(Second Amendment) Rules, 2019 relating to the machinery provision under Rule 42 and Rule 43 for charging section 17 (2) and Sec 17 (3) should be applied ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osing liability is generally governed by the normal(presumption that it is not retrospective and it is a cardinal principle of the tax Idol that the law to be applied is that in force in the assessment year unless otherwise provided expressly or by necessary implication. The above rule applies to the charging section and other substantive provisions such as a provision imposing penalty and does not apply to machinery or procedural provisions of a taxing Act which are generally retrospective and apply even to pending proceedings. (xxxvi) The above Applicants have also cited the case of Keshavlal Jethalal Shah v. Mohanlal Bhagwandas = 1968 (4) TMI 72 - SUPREME COURT in which the Honourable Supreme court has held that in case if the amendment sought to explain the pre-existing legislation which was ambiguous and defective then such provision needed to be applied retrospectively. He has further cited the case of Commissioner of Income Tax V. Gold Coin Health Food Private Limited = 2008 (8) TMI 5 - SUPREME COURT in which it was held that:- The presumption against retrospective operation is not applicable to declaratory statutes.... In determining, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Bihar (1999) 7 SCC 76 = 1999 (8) TMI 761 - SUPREME COURT . (xxxix) That even if the above amendments were applied retrospectively, there would be no incremental liability on the Respondent and he would not be required to reverse ITC though the language of the above provisions suggested otherwise. (xl) That the Construction Supply was very different from the Supply of Goods or Supply of Services. In case of Construction Supply the transaction of sale was spread over a period of time which covered multiple assessment tax period. Further the cost and the revenue was misaligned which led to the anomaly in calculation of exempt ITC at a particular point of time. Further for each tax period, builder was not required to reverse the ITC pertaining to unsold inventory and had the right to avail the available ITC. Hence, in order to calculate correct profiteering, the above amendments should be taken into consideration. 13. The above submissions of the Respondent and the above Applicants were sent to the DGAP for firing Reports which have been submitted by him vide his supplementary Reports dated 23.05.2019 and 23.10.2019 in which it has been stated that the Respondent h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it was a fact that in the pre-GST period Central Excise Duty component on the inputs purchased by the Respondent was a cost to the Respondent, as it was built in the cost of purchases made but credit for the same was not available in terms of CENVAT Credit Rules, 2004 and with the implementation of GST, Central Excise Duty has been subsumed within GST and credit for the same was available to Respondent, which was additional benefit of ITC available to him. The DGAP has also claimed that the Respondent's claim regarding Service Tax exemption in his case was a fact as he was neither charging any Service Tax from his home-buyers nor was he liable to pay any Service Tax on the input services received as supply of services by his down line contractors/sub-contractors to the Respondent too was exempted,. thus, there was no implication of Service Tax component on his cost. The DGAP has further claimed that however, under the GST, there was no such exemption and the Respondent has to pay GST on the input services received and credit for the same could also be availed by them. He has also contended that in the light of this new component of GST liability on input services received a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d pars 25 of the DGAP's Investigation Report dated 28.02.2019. Para 25 of the Report has been reproduced below:- As aforementioned, the present investigation covers the period from 01.07.2017 to 31.08.2018 Profiteering. If any for the period post August; 2018 has not been examined as the exact quantum of input tax credit that will be available to the Respondent in future, cannot be determined at this stage when the construction of the project is yet to be completed. ' 17. The DGAP has also contended that the Respondent has submitted that subject to approval of his request of the aforesaid amount as calculated by him, he would pass on this benefit to its customers and the Respondent has admitted to profiteering and provided details of the amount along with the basis of quantification based on his understanding, which may be considered by the Authority. 18. We have carefully considered the Report of the DGAP, submissions made by the Respondent and based on the record it is revealed that the above Applicants had purchased flats from the Respondent in his Green Court project situated in Sector 90, Gurugram, Haryana which was got approved by him under the Affordabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in to force of the GST he had become eligible to claim benefit of ITC on it which he was ready to pass on to his customers subject to the adjustment of 1TC which would be cost to him at the time of completion of the project. However, the above contention of the Respondent related to the adjustment of the ITC at the time of handing over of the possession is not correct as he is not required to pay more than what he has got as benefit to ITC to his customers as per the provisions of Section 171 of the above Act and hence, he can not retain any amount of ITC on the ground that It would be adjusted at the time of handing over the possession. 20. The Respondent has also claimed that he has worked out additional benefit of Excise Duty which came to ₹ 3,04,63,210/- after coming in to force of the GST without adjusting the amount of ITC which would be cost to him at the time of handing over the possession. However, it is apparent from the supplementary Report dated 23.11.2019 of the DGAP that the profiteered amount has not been worked out by him on the basis of the cost of the material and it is based on the comparison of the ratio of the CENVAT credit to the turnover obtained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their contention cannot be accepted. 24. The above Applicants have also stated that the Respondent has deposited total amount of ₹ 33,625/- only in cash and the remaining amount of output liability has been met by him from the ITC. They have also computed the amount of ITC as ₹ 6,64,75,465/- which has been paid by him from the ITC and also computed the profiteered amount as ₹ 6,97,98,961/- as against the total profiteering of Rs, 5,30,34,074/- calculated as per Table C' of the DGAP's Report dated 28.02.2019. The above figure of ₹ 6,64,15,465/- cannot be taken in to account for computing the benefit of ITC as only the ITC relevant to the sold area amounting to ₹ 5,14,90,200/- is to be considered as no benefit is required to be passed in respect of the unsold area. Hence, the above contention of the Applicants is incorrect. 25. The Applicants have further stated that no discount was required to be given on account of the sold and unsold area as has been given in Table B of the Report. The above claim of the Applicants is not justified as the benefit has to be passed on only to those buyers who have purchased the fiats during the pre-GST p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hemselves competent to lodge complaint against the Respondent before the appropriate tax authority and hence no action is required to be taken by this Authority. 32. The Applicants have further pleaded that letter dated 20.02.2019, written by the Respondent to the DGAP stated that the VAT was going to be recovered from the customers at the time of possession of the flats therefore, the SGST amount could not be considered as benefit to be passed on to the customers under Section 171 of the CGST Act, 2017, In this connection it would be relevant to mention that payment of taxes is governed by the agreement executed between the Respondent and the Applicants and hence no ruling can be given by this Authority on this issue. 33. The Applicants have also claimed that since the entire data has not been furnished by the Respondent they were not able to raise objections, in this connection it would be relevant to mention that all the information required by the Applicants has been duly provided to them and has also been inspected by them in the office of the DGAP and hence the above argument of the Applicants is not tenable. 34. That the Applicants have further claimed that with eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred amount of ITC. for allowing the benefit to the prospective buyers on monthly basis in cash as in case it is deposited the Respondent cannot re-caliberate his prices to pass on the benefit of ITC to such buyers. There is also no issue of adequate oversight by the tax authorities on such ITC as it would be reflected in the Retunes and would be liable to be scrutinized at the time of assessment. 37. The above Applicants have also alleged that details of the materials purchased by the Respondent during the period from July, 2017 to August, 2016 were without any appropriate justification and passing of the benefit at the time of completion of the project was not correct. AS has been discussed supra the computation of the benefit of ITC on the basis of the purchases made by the Respondent has already been held to be incorrect. Moreover, the above benefit cannot be passed on by the Respondent at the time of the completion of the project in view of the fact that the Respondent cannot apply different yardsticks while availing. The above benefit every month and passing on the same after a lapse of a period of more than 3 years, The Respondent cannot enrich himself at the expense o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applicants have also submitted that in para 20 of the DGAP's Report, the net amount of excess collection of Demand or the profiteered amount has been calculated as ₹ 5,30,34,074/- which was the net amount without any GST component and hence the profiteered amount should not be reduced. However, perusal of para 20 shows that the DGAP has computed the profiteered amount as Rs, 4,62,18,816/- without GST and ₹ 5,30,34,074/- with GST which is based on the Returns filed of ITC and turnover filed by the Respondent and hence the above contention of the Applicants cannot be accepted. 43. The Applicants have also contended that the methodology used for the computation of profiteering was different than what has been prescribed in Section 17 (2) 17 (3) and hence the methodology as per the Notification No. 16/2019 (Central Tax) dated 29.03.2019 relating to the machinery provisions under Rule 42 (1) (f) and Rule 43 (1) (b) should be applied retrospectively as they were declaratory in nature, in this case and the profiteering amount should be re-computed. In this connection it would be relevant to mention that there is no provision in the CGST Act, 2017 or in the above Notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is involved in the facts of the present case hence the law settled in the above case is not being followed. In the case of Commercial Tax Officer Rajasthan v. M/s. Binani Cement Ltd. another (Civil Appeal No. 336 of 2003) = 2014 (3) TMI 905 - SUPREME COURT issue involved was interpretation of the Sales Tax New Incentive Scheme for industries 1989' and the facts of the above case are not similar to the facts of the present case and hence, the above case cannot help the cause of the Applicants. In the case of LIC v. D. J. Bahadur (1981) 1 SCC 315 : 1981 (1) SCR 1083 = 1980 (11) TMI 157 - SUPREME COURT it was required to be decided whether the provisions of LIC Act, 1956 would apply in respect of the employees of the LIG or the provisions of Industrial Disputes Act, 1947 would apply. In this case the same issue is not involved and hence the above judgement is not relevant in the present case. The case of Govind Sugar Mills Ltd. v. State of Bihar (1999) 7 SCC 76 = 1999 (8) TMI 761 - SUPREME COURT pertains to the charging of purchase tax on Sugar under the Bihar Finance Act; 1981 and the Bihar Sugarcane (Regulation of Price, Supply Purchase) Act, 1981 whereas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 171 of the Central goods and Services Tax Act, 2017, the benefit of the additional ITC which has accrued to the Respondent in the post-GST period is required to be passed on to the above Applicants as well as the other home buyers. Based on the amount collected by the Respondent from the above Applicants and the other home buyers during the period from 01.07.2017 to 24.01.2018, the amount of benefit of ITC which is required to be passed on by the Respondents to the recipients or in other words, the profiteered amount comes to ₹ 2,68,17,079/- which includes 12% GST on the base profiteered amount of ₹ 2,3943,820/-. Further, the amount of benefit of ITC which needs to be passed on by the Respondent to the recipients or the profiteered amount during the period from 25.01.2018 to 31.08.2018, comes to ₹ 2,62,16,996/- which includes 8% GST on the base profiteered amount of ₹ 2,42.74,996/. Accordingly, the total profiteered amount during the period from 01.07.2017 to 31.08.2018 comes to ₹ 5,30,34,074/- which includes GST @12% or 8% on the base profiteered amount of ₹ 4,82,18,816/- which is required to be passed on as per the home buyer and unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent. The concerned CGST or SGST Commissioner shall take necessary action to ensure that the benefit of additional ITC is passed on to the eligible house buyers in future. 50. It is evident from the above that the Respondent has denied the benefit of ITC to the buyers of the flats being constructed by him in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has thus committed an offence as per the provisions of Section 171 (3A) of the above Act. Therefore, he is liable for imposition of penalty under Section 171 (3A) of the CGST Act, 2017. Accordingly, a Show Cause Notice be issued to him directing him to explain why the penalty prescribed under the above provision should not be imposed on him, Accordingly, the notice dated 05.03.2019 vide which it was proposed to impose penalty on the Respondent as per the provisions of Section 29, 122-127 of the CGST Act, 2017 read with Rule 21 end 133 of the CGST Rules, is withdrawn to that extent. 51. Further this Authority as per Rule 136 of the CGST Rules 2017 directs the Commissioners of CGST/SGST Haryana to monitor this order under the supervision of the DGAP by ensuring that the amount profiteered by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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