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TMI Blog2019 (11) TMI 1331X X X X Extracts X X X X X X X X Extracts X X X X ..... he area sold and the turnover realised by him on the above project. Therefore there are sufficient grounds to believe that the respondent is liable to pass on the benefit of additional ITC to the buyers of the commercial area as per the provisions of section 171 of CGST Act. Application disposed off. - Case No. 62/2019 - - - Dated:- 27-11-2019 - SH. B.N. SHARMA, CHAIRMAN, SH. J.C. CHAUHAN, TECHNICAL MEMBER, MS. R. BHAGYADEVI, TECHNICAL MEMBER, SH. AMAND SHAH, TECHNICAL MEMBER Present - Sh. A.B. Singh, Authorised Representative for the Applicant No 1. Smt. Gayatri Deputy Commissioner for the Applicant No. 2, Sh. B.K. Bansal, Advocate, Sh. Sharan Bansal, Advocate, Sh. Piyush Makkar CA and Sh. Raghav Singhal, Advocate for the Respondent, ORDER 1. This Report dated 03.04.2019 and the supplementary Report dated 30.05.2019 has been received from the Applicant No. 2 i.e. the Director General of Anti-profiteering (DGAP) after detailed investigation under Rule 129 (6) of the Central Goods service Tax (CGST) Rules, 2017. The brief facts of the Case that vide his application dated 06.04 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 701178 ₹ 65,22,678 On limitation of offer of possession (D) 03.04.2018 ₹ 34,008 ₹ 4.082 ₹ 38,090 Total (E) ₹ 63,34,008 ₹ 21,533 ₹ 7,05,260 ₹ 70,60,801 Excess Demand (F=E-A) ₹ 34,008 ₹ 4,77,301 3. The DGAP has also stated that the Applicant No. 1 had submitted the following documents along with his complaint- 1. Duly filled in Form APAF-1, 2. Copy of agreement and allotment letter of the Respondent. 3. Receipt of amounts paid. 4. Summary of Cost Comparison for pre post GST periods. 5. Cost Sheet 6. Copy of PAN Card as proof of identity 4.The DGAP had issued Notice under Rule 129 (3) of the CGST Rules, 2017 on 15.10.2018 asking the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he buyers of flats in 'Gulmohar Greens' and in respect of the above Applicant, the Respondent had offered some benefit which the Applicant had refused to accept. f) The Respondent submitted that almost 85% of the project had already been constructed during the pre-GST regime and only 15% remained to be completed in the GST regime. 6. The DGAP has further intimated that Respondent has also submitted the following documents:- a. Copies of GSTR-1 Returns for the period from July, 2017 to April 2018. b. Copies of GSTR-3B Returns for the period from July, 2017 to December, 2018. c. Copies of Tran-1 Tran-2 Returns for the period from July, 2017 to December, 2017. d. Copies of VAT ST-3 Returns for the period from April, 2016 to June, 2017. e. Copies of all demand letters, Sale Agreement/Contract issued to the Applicant. f. Tax rates - pre-GST and post-GST. g. Copies of Balance Sheets for FY 2016-17 FY 2017-18. h. Copy of Electronic Credit Ledger for the period 01.07.2017 to 31.03.2018. i. CENVAT/Input Tax Credit register for the period from April, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asoning was provided by the Respondent regarding the method of computation and determination of benefit that had accrued to him post-GST due to benefit of additional ITC and no conclusive evidence in support of his claim that such benefit had been passed on. was provided, The DGAP has further submitted that the Respondent's submission that the Applicant' No. 1's intentions were mala fide in alleging profiteering, as the above Applicant was also offered a discount of ₹ 75,000/-, which was refused, did not have any merit as the benefit so offered was neither in the form of reduction in the price nor any basis of calculation of such amount was provided. Therefore, the additional ITC available to the Respondent and the amounts received by him from the Applicant and other recipients, pre and post implementation of GST, had to be taken into account to determine the benefit of ITC that was required to be passed on. 9. The DGAP has further submitted that the ITC pertaining to the residential units which were under construction but not sold was provisional which may be required to be reversed by the Respondent, if such units remained unsold at the time of issue o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 2018, to September, 2018 and Electronic Credit Ledger for the period from April, 2018 to September. 2018. In one of his replies dated 03.01.2019, the Respondent had submitted that due to shortage of funds, he was unable to furnish the GSTR-1 Returns for the period from May, 2018 onwards. The DGAP has further claimed that from the GST portal, it was observed that the GST registration of the Respondent was cancelled on 06.12.2018. The DGAP has also reported that from the information submitted by the Respondent covering the period from April, 2016, to September, 2018. the details of the ITC availed by him, his turnover from the project 'Gulmohar Greens'. the ratio of ITC to turnover, during the pre-GST period from April, 2016 to June, 2017 and the post- GST period from July, 2017 to September, 2018 periods, is furnished in the Table- C below:- Table- 'C' (Amount in Rs.) S. No. Particular April, 2016 to March, 2017 April, 2017 to June, 2017 Total July, 2017 to March, 2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CENVAT/Input Tax Credit to Turnover [(I)=(H)/(E)] 3.23% 6.52% 12. On the basis of the above Table the DGAP has argued that the ITC as a percentage of the total turnover that was available to the Respondent during the pre-GST period from April, 2016 to June, 2017 was 3.23% and during the post-GST period from July, 2017 to August, 2018 it was 6.52% which confirmed that post-GST, the Respondent had benefited from the additional ITC to the tune of 329% (6.52% (-) 3.23%] of the total turnover. Accordingly, the DGAP has assessed the amount of profiteering by comparing the applicable tax rates and the ITC available during the pre-GST period (April, 2016 to June, 2017) when Service Tax @4.5% with the post-CST period (July, 2017 to September, 2018) when the effective CST rate was 12% (GST @18% alongwith 1/3rd abatement on value) on construction service, fixed vide Notification No- 11/2017- Central Tax (Rate) dated 28.06.2017. On the basis of the figures contained in the above Table, the comparative figures of ITC availed/available during the pre-GST period and post-GST period and the profiteered amount/ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he additional ITC of 3.29% of the taxable turnover should have resulted in commensurate reduction in the base price as well as cum-tax price, in terms of Section 171 of the CGST Act, 2017 and this benefit of the additional ITC was required to be passed on to the recipients. The DGAP has also computed the extent of profiteering or the benefit not passed on by the Respondent, after taking into account the CENVAT/ITC availability pre and post-GST and the details of the amount collected from the home buyers during the period from 01.07.2017 to 31.08.2018 and claimed that the amount of benefit of ITC which had not been passed on or in other words, the profiteered amount came to ₹ 91,53,904/- which included GST on the base profiteered amount of ₹ 81,73,129/-. The home buyers (upto 30.09.2018) and unit No. wise break-up of this amount has been given in Annex-14 of the DGAP's Report. This amount was inclusive of ₹ 2.14,512/- (including GST on the base amount of ₹ 1,91,529/-) which was the profiteered amount in respect of the Applicant No. 1, mentioned at Serial No, 23 of Annex-14 of the DGAP's Report. The DGAP has also mentioned that the Respondent had suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... booked in the name of Ms. Poonam Singh had been cancelled and no payments were ever received against this flat, Therefore, the area measuring 1635 sq, ft. of this cancelled booking should have been excluded from the total area sold and the figure of 1,56,000 sq. ft. mentioned in Serial No. 8 of the Table-C should be taken as I ,54.365 sq. ft. c) That he has two projects - (i) a residential project by the name of 'Gulmohur Greens' and (ii) a commercial project by the name of 'Anandam Square' and as the investigation pertained to the residential project only, the DGAP had correctly taken the turnover for the residential project for both the pre-GST and post-GST periods, However, the amount of credit availed during the pre-GST as well as the post-GST period has been taken for both the above project together inspite of the fact that the amounts of credit pertaining to the two projects were separately provided to the DGAP during the investigation. He has requested that as the credit availed for the commercial project was outside the scope of the present investigation this should be excluded from the calculations made in Table-C as well as Table-D of the DGAP& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f profiteering. 18. He has also mentioned that his formula for passing on the benefit on account of increased ITC was that in case the agreed price was ₹ 100/-, as per the normal situation GST levy would amount to ₹ 12/- @ 12% and the total price inclusive of GST would be ₹ 112/-. However, to pass on the benefit of increased ITC, the Respondent had worked out the total amount chargeable from the buyer by applying GST @ 6% (i.e. 50% of 12%) and collected ₹ 106/- only inclusive of tax. The Respondent has further mentioned that as the tax to be paid to the Government was 12% only, he had reworked the base price by applying backward calculation taking the total price inclusive of tax as ₹ 106/- and rate of Tax as 12% and calculated the base price as 106/1.12 ₹ 94.64/- and thus the reduction in the agreed base price was ₹ 5,361- (i.e. 100-94.64 = 5, 36), on which GST was charged as ₹ 0.64/- (i.e- 12% of 5.36 = 0.64) and hence the total reduction in the base price and tax was ₹ 6/- (i.e. 5.36+0.64 = 6). 19. The Respondent has also contended that by applying the above formula, the Respondent has passed on substantia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t during the pre-GST period has been considered. He has also submitted computations of ratios of CENVAT/ITC to turnover for the pre-GST period as 5.02% and for the post-GST period as 4.91% and has claimed that there was no profiteering as the net effect was -0.11%, He has further pleaded that It has been proposed in the show cause notice to invoke penal provisions under Section 29, 122, 123. 124, 125, 126 and 127 of CGST Act, 2017 read with Rule 21 and 133 of CGST Rules 2017, however, he has done no profiteering and therefore, he was not liable for contravention and imposition of penalty. 21. The Respondent has also averred that the construction service was a continuous service the supply of which got completed on the completion of the project and the payment was also received over a period of time and therefore, it was not possible to compute the benefit of ITC till the project was completed. He has further averred that as per the Notification No. 3/2019-Central Tax (Rate) 29.03.2019 the rate of tax on affordable housing has been reduced to 1% and for other houses it has been reduced to 5% but without ITC and hence the benefit of ITC would have to be reworked. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble on a later date, had been taken for calculation of profiteering in Table-D. Total turnover in the post-GST period as per Row No. 6 of Table-D has been updated in Table-C and the Ratio of CENVAT/ Input Tax Credit to Turnover as calculated in Table-C of the DGAP's Report dated 03.04.2019 has been revised to 590% from the earlier 6.52% for the post-GST period. b. That in respect of the points raised by the Respondent in para 2.34 of his submission dated 03.05.2019, the Respondent had not provided the details of sold area in the pre-GST and the post-GST periods in the prescribed format due to which the area of cancelled flats as well as the fiats from which no consideration was received in the pre-GST era was included in Row No. 8 (Area Sold relevant to Turnover as per Home buyers List) of Table-C of the Report dated 03.04.2019. From the details of homebuyers list as submitted by the Respondent in his submission dated 03.05.2019, the Area Sold relevant to Turnover as per Home buyers List and the Relevant CENVAT/Input Tax Credit available as calculated in Row No. B and 9 of Table-C of the Report dated 03.04.2019, for the pre-CST period had been revised. Accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le (D)=(A)+(B) or (C) 41,90,400 10,21,467 52,11,867 1,40,68,228 53,25,878 1,93,94,105 6 Total Turnover (as per reconciliation of installment paid and due) (E) 12,31,99,617 24,84,23,380 7 Total Saleable Area (in sq. ft.) (F) 2,04,395 2,04,395 8 Area Sold relevant to Turnover as per Home buyers List (Flats sold upto 30.09.2018) (G) 1,35,855 1,54,365 9 Relevant CENVAT/INPUT TAX CREDIT (H)=[((D)*(G),(F)] 34,59,088 1,46,48,388 10 Ratio of CENVAT/Input Tax Credit to Turnover [(I)=(H)/(E)] 2.81% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s submission dated 03.05.2019, it was not uniform for all the homebuyers and was not in line with the methodology adopted by the DGAP. 25. Further hearings took place on 06.06.2019 and 18.07.2019, during which the Respondent has filed additional written submissions dated 06.06.2019, 12.06.2019 and 01.08.2019. The Respondent has stated that in reply to his submissions relating to non-consideration of credit of VAT in the pre-GST period the DGAP has stated that this point was raised by the Respondent in his submissions made before the DGAP during the investigation and it was part of his Report dated 03.04.2019 (para 17). The only ground for not considering the credit of VAT in the pre-GST period as mentioned in Para 17 of the DGAP's Report was that the Respondent was not collecting VAT from his customers but discharging output VAT liability on deemed 10% value addition basis and there was no direct relationship between the turnover reported in the VAT Returns for the period from April, 2016 to June, 2017 and the actual consideration collected from the home buyers. In this regard the Respondent has submitted that the payment of VAT on deemed value addition basis and ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entitlement of the Respondent to credit in the pre-GST as well as the post-GST period should have been worked on this area, as the profiteering has been worked out on the turnover of this area. While the DGAP in his previous Report dated 03.04.2019 has correctly kept the value of factor G (i.e. area sold up to 30.09.2018) as same in Row No. B of Table-C for the pre- GST and the post-GST period, but his Report dated 30.05.2019 has taken two different figures of area sold up to 30.09.2018 for the pre-GST and the post-GST period for calculating the ITC entitlement. He has further argued that it was not understood as to how the figure of area sold up to a particular date (30.09.2018) could be different for the pre- CST and the post-GST period. He has claimed that this figure has to be the same i.e. 1,54,365 sq. ft in Row No. 8 for both the periods and by taking figure of 1,35,655 sq. ft. in Row No. 8 of Table-C for the pre-GST period the DGAP has denied the benefit of credit to the Respondent in the pre-GST period on the differential area of 18,710 sq. ft. (154365- 135655). He has further claimed that it was only for the purpose of working out the entitlement of credit that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018 i.e. beyond investigation period 21661125 Less: Demands which were raised in pre-GST period but received during post-GST period 20731551 Less: Interest free maintenance Security not forming part of GST Returns 2117460 Add: Demands which were not in total consideration mentioned in remarks of the agreement like meter, AMC and ifms 4846150 Total turnover in GST Returns 240509384 Less: Turnover related to AMC 5359822 Less: Parking 2050000 Less: Club 782500 Less: PLC 5312395 Turnover related to constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 Input Tax Credit of GST Availed (C) 11081099 3685752 14766851 5 Total CENVAT/VAT/Input Tax Credit Available (D)=(A)+(B) or (C) 6957017 1230289 8187306 11081099 3685752 14766851 6 Total Turnover (as per reconciliation of installment paid and due) (E) 12319617 248423360 7 Total Saleable Area (in sq. ft.) (F) 204395 204395 8 Area sold relevant to turnover as pe Home Buyers List (Flats sold upto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e GST registration by juxtaposing the actual figures in the revised Table-C of the DGAP's Report dated 30.05.2019. but including VAT credit for various options:- Case 1: Considering the residential project only: Scenario : When the actual figures for turnover and credit for the residential project only were taken. VAT credit was included and the area sold up to 30.09.2018 i.e. 1,54,365 sq. ft was considered for calculations in the pre-GST as well as the post-GST period:- Table C S.No. Particular April, 16 to March, 17 April, 17 to June, 17 Total July, 17 to March, 18 April, to Sep., 2018 Total (Pre-GST) (Post-GST) 1 2 3 4 (5)=(3)+(4) 6 7 (8)=(6)+(7) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -0.11 Scenario 2: When the actual figures for turnover and credit for the residential project only were taken, VAT credit was included and the area sold in the pre- GST period i.e. 1,35,655 sq. ft. and the post-GST period i.e. 1,54,365 sq. ft. was taken separately:- S.No. Particular April, 16 to March, 17 April, 17 to June, 17 Total July, 17 to March, 18 April, to Sep., 2018 Total (Pre-GST) (Post-GST) 1 2 3 4 (5)=(3)+(4) 6 7 (8)=(6)+(7) 1 CENVAT of Service Tax Paid on Input Services (A) 3598519 821551 4420070 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the residential project and commercial project together under single GST registration: Scenario 1: When the actual figures for turnover and credit for the residential project plus commercial project were taken together, VAT credit was included and the area sold up to 30.09.2018 i.e. 1,54,365 sq. ft. for the residential project + 31,543 sq. ft. for the commercial project = total sq. ft. was considered for the calculations in the pre-GST as well as the post-GST period:- Table-C S.No. Particular April, 16 to March, 17 April, 17 to June, 17 Total July, 17 to March, 18 April, to Sep., 2018 Total (Pre-GST) (Post-GST) 1 2 3 4 (5)=(3)+(4) 6 7 (8)=(6)+(7) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -0.9137 The Respondent has stated that the Profiteering Amount was NIL and turnover and credit figures were taken for construction service only i.e. after excluding turnover for other charges and AMC and credit for AMC. Scenario 2: When the actual figures for turnover and credit for the residential project plus commercial project were taken together, VAT credit was included and the area sold in the pre-GST period i.e. 1,35,655 sq. ft. for residential project + 7000 sq. ft. for commercial project = total 142655 sq. ft. and the area sold in the post-GST period up to 30 09.2068 i.e. 1,54.365 sq. ft. for the residential project + 31,543 sq. ft. for the commercial project = total 1,85,908 sq. ft. was considered separately:- Table-C S.No. Particular April, 16 to March, 17 April, 17 to June, 17 Total July, 17 to March, 18 April, to Sep., 2018 Total (Pre-GST) (Post-GST) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) = (H)/(E)] 4.62 5.11 Profiteered % 0.4866 The Respondent has further stated that the alleged Profiteering Amount would be ₹ 15,01,958/- and the turnover and the credit figures were taken for construction service only i.e. after excluding the turnover for other charges and AMC and credit for AMC. In view of the above, the Respondent has submitted that even if the calculations were made by taking both the residential and commercial projects together and area sold upto 30.09.2018 was considered for calculations of ratios for the pre-GST and the post-GST period and the credit of VAT was included, there was no profiteering 34. The Applicant No. 1 vide his mail dated 06.06.2019 has Stated that the Respondent has provided names of only 30 beneficiaries to whom he had passed on the ITC benefit and he has not provided data on how much ITC rebate was owed by him to the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... May-17 98389 26073 124462 Jun-17 212927 43750 256677 TOTAL 3767236 789028 4556264 Service Tax Credit Details Project Gulmohar Green (Residential Project) Anandam Square Project [Commercial Project) Total (Rs.) Quarter wise Service Tax Credit Forward charge Basis Service Tax Credit Reverse charge Basis Krishi Kalyan Cess Credit Total Credit Service Tax Krishi Kalyan Cess Credit Total Credit Total Credit as per ST-3 Return APRIL 16 TO JUNE 16 366957 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct) -3694193 Credit relating to Gulmohur Green (Residential Project) 14766851 36. The Applicant No. 1 vide his mail dated 10.08.2019 has also alleged that the Respondent had still not provided him the details which were asked by him. He has also requested to ask the Respondent to provide him with similar terms viz pricing and the GST relief etc.as was provided by the Respondent to Sl. No. 1 Sh. Deepak Kumar Sharma, unit No. T- 17-6D as per Annexure-4 of the Respondent's submissions dated 1206.2019. Again the Applicant No. 1 vide his mail dated 02.09.2019 has stated that the Respondent has charged GST @ 6% in the case of Mr. Deepak Kumar Sharma and he has questioned that what methodology was adopted in his case and why different yard stick was being used for him. He has also alleged that he has been burdened with a net loss of ₹ 432,194/- after introduction of GST and this loss should be compensated by the Respondent by reducing the price of flat. The Applicant No. 1 has also submitted that the Respondent has sold the flat to Mr. Deepak Kumar Sharma compris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examined by the Standing Committee on Anti- Profiteering in its meeting held on 06.09.2018 and was forwarded to the DGAP for investigation who vide his Report dated 03.04.2019 has found that the ITC as a percentage of the total turnover which was available to the Respondent during the pre-GST period was 3.23% and during the post-GST period this ratio was 6.52% as per the Table-C mentioned above and therefore, the Respondent has benefited from the additional ITC to the tune of 3.29% (6.52%-3.23%) of the total turnover which he was required to pass on to the flat buyers of this project, He has also claimed that the Respondent has not reduced the basic prices of his flats by 329% due to additional benefit of ITC and by charging GST at the increased rate of 12% on the pre-GST basic prices, he has contravened the provisions of Section 171 of the CGST Act, 2017, The DGAP vide his Report dated 03.04.2018 has further submitted that the amount of benefit of ITC which has not been passed on by the Respondent or the profiteered amount came to ₹ 91,53,904/- which included 12% GST on the basic profiteered amount of ₹ 81,73,129/-. The DGAP has also intimated that the above amount wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e pre-CST era from the calculations of ratio of credit to the turnover. However, it is apparent from para 17 of the DGAP's Report dated 0304.2019 that the Respondent has discharged his output VAT liability on the deemed taxable value by adding 10% in the purchase price of the inputs as per the Annexure-6 of the DGAP's Report dated 03.04.2019 and no VAT has been charge by him from the home-buyers. As the taxable value for the purpose of output VAT liability of the Respondent was different from the actual base price collected from the homebuyers, the DGAP has neither considered the taxable value as reflected in the VAT Returns of the Respondent nor the VAT credit has been considered by him for computation of profiteering, instead the DGAP has taken into account the demands which have been shown in the home buyers list, as any variation in the credit/VAT liability of the Respondent has no impact on the consideration demanded or received by the Respondent from the home buyers. The above clarification given by the DGAP regarding not taking in to account the ITC availed by the Respondent in his VAT Returns for calculation of ratio Of the CENVAT to the turnover during the pre-GST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ITC availed by the Respondent during the post-GST period. Since, the DGAP has conducted the present investigation in respect of the residential project only he has taken the above figure of ITC in respect of this project only. This figure is also based on the reconciliation statement of ITC furnished by the Respondent himself. Therefore, the above argument of the Respondent is incorrect. 45. The Respondent has also stated that the DGAP has not considered the fact of passing on the benefit of additional ITC in the post-GST period in the form of reduction in the GST collected from the buyers which amounted to total amount of ₹ 16,66.115/-. The Respondent has also contended that by applying the above formula, he has passed on substantial benefit of ₹ 26,97,253/- in ell on the basis that he has divided the extra burden of increased tax rate under GST regime into two equal halves, one of which has been borne by the buyer and the other half has been refunded to each buyer through cheques by him or by passing more than the half of GST. Perusal of the calculations made by the Respondent shows that he has computed the extra burden of GST @ 7.5% (12% GST-4.5% Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the passing on of the benefit of ITC. 48. The Respondent has also not produced any reliable or cogent evidence either before the DGAP or this Authority in support of his contention that he has passed on the benefit of ITC by submitting the details of the entries made in his books of account or cheques issued to the buyers or the copies of the tax invoices/demand letters or the acknowledgements made by his customers of having received the benefit of ITC due to implementation of the CST, As discussed above the Respondent has only claimed to have passed on the discount/rebate on account of CST which cannot amount to passing on the benefit of ITC as per the provisions of Section 171 (l) of the CGST Act, 2017. Therefore, the above claim of the Respondent is frivolous and hence, the same cannot be accepted 49. The Respondent has also submitted that non-consideration of the availment of credit of VAT by the DGAP during the pre-GST period has serious implication on deciding whether there was any profiteering by him-however, as has been discussed supra the Respondent has discharged his VAT liability on deemed turnover and has also not charged VAT from his customers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period from 01.07.2017 to 30.09.2018 and the above Notification would have effect prospectively w.e.f. 01.04.2019 only and hence the above pleading of the Respondent is not relevant. 52. It is also revealed from the revised Report dated 30.05.2019 that the DGAP on the basis of the submissions dated 03.05.2019 filed by the Respondent has revised the figures of the Area Sold relevant to Turnover as per Home buyers List and the Relevant CENVAT/Input Tax Credit available as per revised Table-C supra and has accordingly, he has reworked the Ratio of CENVAT/ Input Tax Credit to Turnover as 2.81% from the earlier 3.23% for the pre-GST period and from 6.52% to 5.90% for the post-GST period. As a result, the additional ITC in the post-GST period, as a percentage of the turnover, has been revised to 3.09% [5.90% (-) 2.81%], instead of 3.29%. As the Ratio of CENVAT/Input Tax Credit to Turnover in Table-C of the Report has been revised, the quantum of profiteering has also been revised by the DGAP to ₹ 85,97,436/- from the earlier ₹ 91,53,904/- as per the revise Table-D supra. He has further revised the home buyer Unit No. wise break-up of the profiteered amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iods whereas, as has been discussed supra, the above area is 1,35,655 sq. ft. for the pre-CST period and 1,54,365 sq. ft. for the post-GST period as per the home buyers list supplied by the Respondent himself. Since, the above computation of profiteering made by the Respondent is not based on the correct figure of the above area and ITC the same cannot be relied upon. 56. The Respondent has further mentioned that the profiteering should be computed in respect of the residential project only and not for the commercial project. He has accordingly worked out the ratio of CENVAT/ITC to turnover for the pre-GST period as 5.02% and 4.91% for the post-GST period and profiteering as -0.11%. He has also calculated the above ratios as 4.41%, 4.91% and 0.502234% for the residential project by including the ITC of VAT as per the area sold taken by the DGAP in revised Table-C supra and arrived at the profiteered amount of ₹ 12,76,906/-. He has also calculated the above ratios for both the residential and commercial projects together and claimed that the above ratios were 6.02%, 511% and -0.9137% respectively. The Respondent has further calculated the above ratios in case the VAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s turnover was ₹ 24,84,23,360/-. He has also sold an area of 1,54,365sq ft., relevant to the above turnover during the above period. The proportionate ITC availed by the Respondent was ₹ 1,46,46,988/- ori the basis of which ratio of ITC to turnover comes to 5.90%. Therefore. it is abundantly clear that the Respondent has benefited from the additional benefit of ITC to the tune of 3.09% (5.90%-2.81%) of the turnover which he is required to pass on to his customers as per the provisions of Section 171 of the above Act. Since the above figures of ITC and turnover have been taken form the Returns filed by the Respondent himself and the figures of sold area have been supplied by the Respondent himself, the same cannot be disputed by the Respondent and can be relied upon and accordingly. the above computations are held to be correct. Therefore, the amount is determined as ₹ 85,97,436/- which includes GST @12% on the base profiteered amount of ₹ 76,76,282/- as per the revised Annexure-14 of the Report dated for the period w.e.f. 01.07.2017 to 30.09.2018 in terms of Rule 133 (1) of the CGST Rules, 2017. The Respondent is also held to have profiteered an amount of &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty prescribed under the above sub-Section read with Rule 133 (3) (d) of the CGST Rules, 2017 should not be imposed on him. Accordingly, the notice dated 09.04.2019 vide which it was proposed to impose penalty on the Respondent under Section 29 and 122-127 of the above Act read with Rule 21 and 133 of the CGST Rules, 2017 is hereby withdrawn to that extent, 62. Further this Authority as per Rule 136 of the CGST Rules 2017 directs the Commissioners of CGST/SGST Uttar Pradesh to monitor this order under the supervision of the DGAP by ensuring that the amount profiteered by the Respondent as ordered by this Authority is passed on to all the eligible buyers as per there used Annexure-14 of the Report dated 30.05.2010. A report in compliance of this order shall be submitted to this Authority by the concerned Commissioner CGST/CGST within a period of 4 months from the date of receipt of this order through the DGAP. 63. It is also established from the facts of the present case that the Respondent is constructing two projects viz. Gulmohar Green as a residential project and Anandam Square as the commercial project. It is further established from the record that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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