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TMI Blog2020 (5) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of the Respondent. The above Applicant had also alleged that the Respondent had not passed on the benefit of Input Tax Credit (ITC) by way of commensurate reduction in the price of the above flat. The aforesaid reference was considered by the Standing Committee on Anti-profiteering, in its meeting held on 11.03.2019, wherein it was decided to forward the same to the DGAP to conduct detailed investigation in to the complaint according to Rule 129 (1) of the CGST Rules, 2017. 2. The above Applicant had furnished the following documents along with his application:- (a) Statement of Account as on 03.10.2018 for his unit. (b) Facts as known to him regarding the Project. 3. On receipt of the recommendation from the Standing Committee on Anti-profiteering, the DGAP had found from the application filed by the Applicant No. 1 that he had booked a flat in the Respondent's Project "Emerald Floor Premier", on 24.01.2010 i.e. in the pre-GST era. In terms of the instalment plan agreed upon, the above Applicant was to pay the consideration in 12 instalments and prior to coming in to force of the GST he had already paid 10 instalments. As per the above Applicant, vide demand letter issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % to the customers of the above Project. c) That as per the stay order granted by the Hon'ble High Court of Delhi in the case of M/s Abbott Healthcare Pvt. Ltd. v. Union of India in (W.P. (C) 4213/2019) = 2019 (5) TMI 563 - DELHI HIGH COURT the investigation should be restricted only to the unit in respect of which the complaint had been filed or same class of buyers and not to the whole Project. d) That the Respondent has made an estimated computation of the additional benefit which has accrued to him keeping in view two factors namely (a) benefit of Transitional Stock carried forward in TRAN-1 Form and (b) Saving of taxes on goods/services to be purchased in the GST regime for completion of the Project. This computed benefit has been or would be distributed among the units booked in the pre-GST regime but delivered under the post-GST regime. Details of benefit passed on to the customers were mentioned in his home-buyer's data. e) That the methodology of comparing the ratio of ITC to the turnover for the pre-GST and the Post GST period, adopted to calculate profiteering by the DGAP would not yield the correct quantum of profiteering. Comparison of the above ratios was not ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 05/2018. As there was only one applicant who had filed the complaint, the DGAP should not suo-moto assume jurisdiction with regard to other recipients (home-buyers) of the Respondent. i) That he has decided to pass on the benefit of 4.93% to his customers, despite his earlier decision to pass benefit of 1.64% as communicated in his submissions dated 15.05.2019 and 18.07.2019, wherein he has worked out a net negative benefit post-GST. The benefit has been passed on or would be passed on by way of commensurate reduction in prices. 7. The Respondent has also submitted the following documents/information to the DGAP vide his above mentioned letters/e-mails during the course of the investigation:- (a) Copies of GSTR-1 Returns for the period from July, 2017 to March, 2019. (b) Copies of GSTR-3B Returns for the period from July, 2017 to March, 2019. (c) Electronic Credit Ledger for the period from July, 2017 to March, 2019. (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 in the name of the Applicant No. 1. (f) Details of applicable taxes pre-GST and post-GST. (g) Copies of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 2017 which read as under:- "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 Integrated Goods and Services Tax Act and partly for effecting exempt supplies under the said Acts. the amount of credit shall be restricted to so much of the input tax as is attributable to the said taxable supplies including zero-rated supplies. 17 (3) The value of exempt supply under sub-section (2) shall be such as may be prescribed and shall include supplies on which the recipient is liable to pay tax on reverse charge basis, transactions in securities, sale of land and, subject to clause (b) of paragraph 5 of Schedule II, sale of building." Therefore, the DGAP has claimed that the ITC pertaining to the unsold units was outside the scope of this investigation and the Respondent was required to recalibrate the selling prices of such units to be sold to the prospective buyers by considering the net benefit of additional ITC available to him post-GST. 10. The DGAP has also claimed that the Respondent's contention regarding lack of methodology and procedures was not maintai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r's data submitted by the Respondent that the Respondent's Project "Emerald Estate" has different categories of units viz. Emerald Floors Premier, Emerald Estate, Emerald Estate-School and Emerald Estate EWS. The EWS units were not categorised as affordable houses and same rate of GST had been charged across all categories. 14. The DGAP has also contended on the claim of the Respondent that he had decided to pass on benefit to the tune of 1.64% and 4.63%, to the customers, and would provide details of such benefit passed on but the Respondent had not explained the basis of his calculations and reasons for difference in his own calculations. In the absence of basis of calculations, there was no reason to admit his claim that he has been passing on the benefit already, however the benefit as claimed has been mentioned in the home-buyers list. 15. The DGAP has further contended that the Respondent has claimed that there was a net negative benefit of credit post-GST, but the calculations made by the Respondent, claimed to be in line with the methodology followed by the DGAP, were not correct, as the Respondent has wrongly claimed credit of WCT (VAT) and even the turnover accounted fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent) and his sub-contractors. The Respondent was eligible to claim the ITC of WCT (VAT) credit, even if not paid directly by him, only if, the following conditions were fulfilled:- a. Tax has been paid by his sub-contractor on the sale of goods involved in execution of the works contract. b. The assessment of such tax has become final and c. ITC of such VAT has not been availed by his sub-contractor. The DGAP has alleged that the Respondent did not submit any evidence in this regard to substantiate his claim of ITC of WCT (VAT) credit. Therefore, the Respondent was not eligible to claim this amount as ITC. 19. The DGAP has further informed that post-GST the Respondent could avail the ITC on GST paid on all the inputs and input services including the sub-contracts. The Respondent vide his submission dated 22.08.2019 has submitted reconciliation of turnover and CENVAT/ITC for all his projects, as in the pre-GST era, the Respondent had a centralized registration for Service Tax, and in post GST era, the GSTR Returns reflected turnover and ITC for the whole State of Haryana and not just the impugned project. Further vide his submissions dated 17.09.2019, the Respondent has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GAP has argued from the Table-13' that the ITC as a percentage of the total turnover that was available to the Respondent during the pre-GST period (April, 2016 to June, 2017) was 9.08% and during the post-GST period (July, 2017 to March, 2019), it was 20.98% which clearly confirmed that post-GST, the Respondent has been benefited from additional ITC to the tune of 11.90% [20.98% (-) 9.08%] of the turnover. 22. The DGAP has further argued that the Central Government, on the recommendation of the GST Council, has levied 18% GST on construction service (after one third abatement towards value of land, effective GST rate was 12% on the gross value), vide Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017. The Respondent vide his submissions dated 18.07.2019 has stated that the impugned Project had different categories of units including EWS units and there were total of 1587 units in the said Project and all the units were categorised in the category of other than affordable housing. Accordingly, the profiteering has been examined by the DGAP by comparing the applicable tax rate and ITC available to the Respondent during the pre-GST period from April, 2016 to June, 2017 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the profiteered amount in respect of the Applicant No. 1, mentioned at Serial No. 318 of Annesure-18 of the Report. It was also intimated by the DGAP that the Respondent has supplied the construction service in the State of Haryana only. 25. The DGAP has also submitted that the above computation of profiteering was with respect to 1239 buyers, whereas the Respondent has booked 1500 units in the pre-GST period, however, demands were raised only on 687 buyers who had booked the units and the net total of the demands raised from such units had only been taken into consideration, Similarly, in the post-GST period, demands were raised on 1239 buyers who had booked the units, and the net total of demands raised from such units had only been taken into consideration. He has further submitted that If the ITC in respect of those units on which no demands had been raised in the concerned period was considered for calculation of profiteering in respect of those units where demands had been raised in the relevant period, the ITC as a percentage of turnover would be distorted and erroneous. Therefore, the benefit of ITC in respect of these 261 (1500-1239) units should be calculated when the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.09.2019 and it was decided that the Applicants and the Respondent be asked to appear before this Authority on 22.10.2019. The Respondent was issued notice on 26.09.2019 to explain why the above Report of the DGAP should not be accepted and his liability for violating the provisions of Section 171 of the CGST Act, 2017 should not be fixed. During the course of the hearings no one appeared for the Applicants and the Respondent was represented by Sh. Manish Gaur, Advocate, Sh. Sanjeev Sharma, DGM-Tax, Sh. Tarun Trehan, CA, Sh. R. Chitkara, Advocate and Ms. Disha, Advocate, The Respondent has filed his written submissions dated 03.12.2019, 17.12.2019, 23.01.2020 and 11,02.2020. The main issues raised by the Respondent have been mentioned in the subsequent paras. 29. That the Standing Committee has erred in referring the matter to the DGAP for further investigation. As per Rule 128 (1) of the of the CGST Rules, 2017 on receipt of an application, the Standing Committee was required to examine the accuracy and adequacy of the evidence provided in the application to determine whether there was prima facie evidence to support the claim of an applicant that the benefit of reduction in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at as per Rule 126, this Authority has power to determine the methodology and procedure for determination as to whether the reduction in the rate of tax on the supply of goods or services or the benefit of ITC has been passed on by the registered person to the recipients by way of commensurate reduction in prices but, as on date, CGST Rules have not prescribed any procedure/ methodology/ formula/ modalities for determination/ calculation of 'profiteering'. The Methodology and Procedures, 2018 issued on 19.07.2018 by this Authority under Rule 126 only provided the procedure pertaining to investigation and hearing. However, no method/formula has been notified/prescribed pertaining to calculation of profiteered amount. 32. That the DGAP has arrived at the figures of alleged profiteering on the basis of the difference between the ratio of ITC to the turnover during the pre-GST and the GST periods. This formula for calculating the benefit of additional ITC which has accrued to the Respondent could never yield the correct quantum of profiteering. As the comparison of above ratios was not appropriate for the reason that under the real estate sector, there was no correlation between the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adopted by the DGAP in his Report, the calculations made by the DGAP of the alleged profiteering were incorrect due to the following reasons:- 1. VAT credit should have been considered in calculating the total credit pre-GST; 2. WCT (VAT) rebate should have been considered in calculating the total credit pre-GST; 3. The demand notes raised by the Respondent formed part of total turnover for the period under consideration and they should not have been ignored; 4. For GST period, the DGAP has considered saleable area in "Area sold relevant to turnover for even those customers to whom no demand notes were raised; and 5. The Cenvat credit of Service Tax paid on input services, as also ITC credit of GST availed was not factored in the correct quantum of common credit on account of corporate expenses. 36. In this regard, the Respondent has also quoted the following cases decided by this Authority, in his support:- ➢ Director General of Anti-Profiteering and others v. M/s. Aster lnfrahome Pvt. Ltd. 2019 (11) TMI 1082 NAA. ➢ Director General of Anti-Profiteering and Others v. M/s Puri Constructions Pvt. Ltd. 2019-VIL-24-NAA = 2019 (5) TMI 785 - NATIONAL ANTI-PR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... = 2016 (8) TMI 1495 - SUPREME COURT, L. Chandra Kumar v. Union of India (1997) 3 SCC 261 = 1997 (3) TMI 90 - SUPREME COURT and R.K. Jain v. Union of India (1993) 4 SCC 119 = 1993 (5) TMI 23 - SUPREME COURT. The Respondent has also submitted that due to the lack of a Judicial Member in the Authority, exercising of judicial/quasi-judicial powers was against the basic structure of the Constitution of India and it took away the independence of judiciary and was against the rule of law. 40. The submissions of the Respondent dated 03.12.2019 and 17.12.2019 were forwarded to the DGAP for his Report. The DGAP vide his supplementary Report dated 24.01.2020 has replied on the issues raised by the Respondent as follows:- a. The Standing Committee has erred in referring the matter:- The DGAP has submitted that the complaint was forwarded by the Standing Committee on Anti-profiteering vide minutes of the meeting held on 11.03.2019 under Rule 128 of the Central Goods Services Tax Rules, 2017, to conduct a detailed investigation regarding non passing of the benefit of the ITC to the buyers by the builder. Accordingly, investigation has been done for the whole project. b. Comparison of rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission of the investigation Report was 24.09.2019. Accordingly, the preparation of draft Report had started at least one week before the last date of submission of the Report. In the instant case all the documents submitted on or before 16.09.2019 were taken into consideration for the purpose of finalisation of calculation of profiteering and Report. Any submission made on that day or after it could not be mentioned in his Report. iv. Alleged profiteering has been incorrectly inflated in the report by adding GST:- The DGAP has stated that the price paid by the customers included both the base price and also the tax charged on it. Therefore, any excess base price or tax collected from the customers amounted to profiteering which must be returned to them. 41. A copy of the Report dated 24.01.2020, submitted by the DGAP under Rule 133 (2A) was supplied to the Respondent vide order dated 27.01.2020 for filing rejoinder, if any. The Respondent has filed re-joinder dated 11.02.2020, the relevant paras of which are mentioned below:- S.No. Grounds by Respondent in submission dated 17.12.2019 DGAP's comments Respondent's response on DGAP's comments 1. The Standing Committee has e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of GST benefit shown in SOA was adjusted as credit in respect of some other services provided by Respondent like maintenance etc., the SOAs of said other services, showing appropriate adjustments. However, the same was not considered by DGAP in its letter dated 24.01.2020 and the rebuttals/observations was given only qua the documents submitted during investigation before DGAP. In other words, the DGAP has not taken cognizance of any documents / submissions made before NAA and it has mechanically made the rebuttals based on its report dated 24.09.2019. 9. Saleable Area in "Area sold relevant to turnover" has been considered for even those customers to whom no demand notes were raised. The calculation of profiteering has been done with total area sold only. Only the ITC proportional to relevant sold area has been considered to calculate the quantum of profiteering. It is submitted that the DGAP has mechanically given this observation without considering the relevant facts and documents involved. It is Respondent's submission also that only the ITC proportional to relevant sold area has to be considered. However, the same was not done in the instant case. Reliance is placed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11.03.2019 and was forwarded to the DGAP for investigation who vide his Report dated 24.09.2019 has found that the ITC as a percentage of the total turnover which was available to the Respondent during the pre-GST period was 9.08% and during the post-GST period this ratio was 20.98% as per the Table-B mentioned above and therefore. the Respondent has benefited from the additional ITC to the tune of 11.90% (20.98% - 9.08%) of the total turnover which he was required to pass on to the flat buyers of this Project. The DGAP has also found that the Respondent has not reduced the basic prices of his flats by 11.90% due to additional benefit of ITC and by charging GST at the increased rate of 12% on the pre-GST basic price. he has contravened the provisions of Section 171 of the CGST Act, 2017. The DGAP has also submitted that the amount of benefit of ITC which has not been passed on by the Respondent or the profiteered amount came to Rs. 13,35,79,636/- which included 12% GST on the basic profiteered amount of Rs. 11,92,67,532/-. The DGAP has also intimated that this amount also included the profiteered amount of Rs. 1,04,734/- including 12% GST on the base amount of Rs. 93,512/- in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above complaint was considered by the Committee on 11.03.2019 within a period of 20 days from the date of its constitution on 20.02.2019. Therefore, the above complaint has been considered by the above Committee within a period of 2 months prescribed under Rule 128 (1) of the above Rules and has been duly referred for detailed investigation as per Rule 129 (1) of the CGST Rules, 2017 to the DGAP. Accordingly, the investigation carried out by the DGAP in pursuance of the recommendation made by the above Committee in terms of Rule 129 (1) of the above Rules is perfectly in consonance with the provisions of Rule 128 (1). Consequently the present proceedings are legally correct and binding on the Respondent. Therefore, the above contention of the Respondent is untenable. 44. The Respondent has also stated that the investigation carried on by the DGAP has gone beyond the application submitted by the above Applicant as it was to be limited to his benefit only and it could not cover the other customers who had not questioned the benefit passed on to them. In this regard it would be relevant to refer to the provisions of Section 171 (1) and (2) of the CGST Act, 2017 which provide as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Conduct of investigation to collect evidence necessary to determine whether the benefit of reduction in the rate of tax on any supply of goods or services or the benefit of input tax credit has been passed on to the recipient by way of commensurate reduction in prices, in terms of Section 171 of the Central Goods and Services Tax Act, 2017 and the rules made thereunder. b) Responsibility for coordinating anti-profiteering work with the National Anti-profiteering Authority, the Standing Committee and the State level Screening Committees." 47. Therefore, it is apparent from the above OM that the DGAP is charged with the responsibility to investigate and collect evidence necessary to determine whether both the above benefits have been passed on or not. No fetters have been placed either in the CGST Act, 2017 or Rule 129 of the CGST Rules, 2017 which provide that the DGAP shall restrict his investigation to the complained goods or services and he would overlook commission of an offence which has been committed in respect of the provisions of Section 171 (1) if it comes to his notice during the course of the investigation. Since, the DGAP is the investigating arm of this Authority an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Kerala State Screening Committee on Anti-Profiteering and another v. M/s Pulimoottill Silks decided on 04.02.2019 by this Authority vide Case No. 8/2019 = 2019 (2) TMI 296 - THE NATIONAL ANTI-PROFITEERING AUTHORITY, it was found that there was no reduction in the rate of tax and hence, the provisions of Section 171 of the above Act were not attracted in the above case. Therefore, the above case cannot be relied upon. The case of Kerala State Screening Committee on Anti-Profiteering and another v. M/s Velbon Vitrified Tiles Pvt. Ltd. decided on 01.03.2019 vide Case No. 13/2019 = 2019 (3) TMI 370 - THE NATIONAL ANTI-PROFITEERING AUTHORITY by this Authority, is also of no help to the Respondent as in this case the Respondent had passed on the benefit of tax reduction. In the case of Fx Enterprise Solutions India Pvt. Ltd. and others. v. Hyundai Motor India Limited 2017 Comp 586 (CCI) = 2017 (6) TMI 1316 - COMPETITION COMMISSION OF INDIA, the Hon'ble Competition Commission of India had directed its Director General to conduct investigation on a specific issue whereas in the present case no such direction was passed by this Authority and hence the above case has no bearing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t claim that he has passed on more benefit to one customer therefore he would pass less benefit or no benefit to another customer than what is actually due to that customer. Each customer is entitled to receive the benefit of tax reduction or ITC on each product or unit or service purchased by him of course subject to his entitlement. The word "commensurate" mentioned in the above Sub-Section provides the extent of benefit to be passed on by way of reduction in the prices which has to be computed in respect of each product or unit or service based on the tax reduction or the additional ITC which has become available to a registered person after coming in to force of the CGST Act, 2017. Accordingly, the benefit of additional ITC would depend on the comparison of the ITC/CENVAT which was available to a builder in the pre-GST period with the ITC available to him in the post GST period w.e.f. 01.07.2017. Computation of commensurate reduction in prices is purely a mathematical exercise which is based upon the above parameters and hence it would vary from product to product or unit to unit or service to service and hence no fixed mathematical methodology can be prescribed to determine th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eable. The above provisions also reflect that the true intent behind the above provision, made by the Central and the State legislatures in their respective GST Acts is to pass on the above benefits to the common buyers who bear the burden of tax. The Respondent is trying to mislead by wrongly claiming that he was required to carry out complex mathematical computations for passing on the benefit of ITC which he could not do in the absence of the procedure and methodology. However, his claim is absolutely incorrect as he was only required to calculate the additional ITC which has become due to him after coming in to force of the GST w.e.f. 01.07.2017. When the Respondent can utilise the benefit of ITC which has become available to him after the above date while discharging his output GST liability, he can also pass on its benefit to the flat buyers. However, the Respondent is embezzling the above benefit by utilising it in his business and is enriching himself at the expense of the vulnerable sections of the society. Hence, no methodology and procedure or guidelines or elaborate mathematical calculations are required to be prescribed separately for passing on the benefit of ITC. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess. The above methodology has been applied by the DGAP in all such previous cases of real estate sector and has been approved by this Authority vide its orders passed in such cases. The above methodology is reasonable, justified, accurate and correct and is in consonance with the provisions of Section 171 as has been mentioned in para supra and hence the same can be relied upon. Accordingly, the methodology employed while computing the benefit of ITC which is required to be passed on by the Respondent is held to be correct and binding on the Respondent and all the contrary claims made in this regard by him are rejected. 51. The Respondent has also contended that in pre-GST regime, services were subject to Service Tax at the rate of 15% but under the GST they were taxable at 18%, therefore, there was an increase of 3% in the ITC available which was not due to any additional benefit. In this connection it would be relevant to mention that the Respondent is getting full credit of ITC even if the rate of GST on services has increased from 15% to 18%. Therefore, he cannot claim that he would appropriate the ITC which has additionally become available to him post-GST on services. Moreo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent has also not supplied details of the breakup of the purchases made in respect of the complained Project to justify either the credit of VAT or the VAT turnover. Since, there is no direct co-relation between the turnover reported in the VAT Returns for the period from April, 2016 to June, 2017, filed by the Respondent and their reconciliation with the actual consideration collected from the home buyers, the credit of VAT and the VAT turnover has rightly not been included by the DGAP for computation of the ratio of ITC to the turnover for the pre-GST period since no details have been supplied by the Respondent himself and hp has also not reflected them in his VAT Returns. Therefore, the above argument of the Respondent is not tenable. 54. The Respondent has further argued that he should also have been given the benefit of WCT (VAT) while calculating the total credit of pre-GST ITC. On this aspect perusal of the Report of the DGAP shows that in his submission dated 18.07.2019 (Annex-10) the Respondent had claimed credit of rebate of WCT (VAT) paid to the registered contractors or sub-contractors during the pre-GST period. However, perusal of the VAT Returns filed by the Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it would distort the profiteering calculation. The reasons given by the DGAP for not taking in to account the negative and petty amounts shown in the demand notes are reasonable and justified as the above notes do not comprise part of the turnover to be realised by the Respondent on account of the cost of the flats and therefore, the above claim of the Respondent cannot be accepted. 56. The Respondent has also alleged that the DGAP has considered saleable area in the Area sold relevant to turnover' for even those customers, on whom no demand notes were raised and hence, his computation of the ratio of ITC to turnover was incorrect. In this regard it would be appropriate to mention that for computing the above ratio, the area sold relevant to turnover was required for calculating the proportionate ITC as no benefit of ITC can be passed on those units which have not been sold and in case they are not sold till issue of the CC the ITC in respect of unsold flats would have to be reversed as per the provisions of the CGST Act. In case the saleable area was not included in the Area sold relevant to turnover' there would be no ITC left for reversal in case some units were not sold bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided on 14.10.2019 = 2019 (5) TMI 785 - NATIONAL ANTI-PROFITEERING AUTHORITY in respect of Prasanth Nandulamattam and another v. M/s. Bhartiya City Developers Pvt. Ltd. = 2019 (10) TMI 863 - NATIONAL ANTI-PROFITEERING AUTHORITY by this Authority and argued that he should also be granted the benefit of ITC which he has earned on the WCT (VAT) and VAT during the period between April. 2016 to June, 2017. However, as has been mentioned above the Respondent is not entitled to the benefit of ITC of WCT (VAT) and VAT as he has not reflected them in his VAT Returns which he has himself filed during the above period. In the absence of cogent and reliable evidence the above claim made by the Respondent cannot accepted. Hence, the above cases do not help his cause. 60. The Respondent has also contended that the constitution of this Authority is bad in law as the it does not have any Judicial Member and in doing so he has placed reliance on the judgment passed by the Hon'ble Supreme Court in the case of Union of India v. R. Gandhi President Madras Bar Association (2010) 11 SCC 1 = 2010 (5) TMI 393 - SUPREME COURT. The facts of this case are not relevant in the present case as in the above cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014 (308) ELT 209 (SC) = 2014 (9) TMI 821 - SUPREME COURT, the constitutional validity of the National Tax Tribunal Act 2005 and the Constitution (Forty-Second) Amendment Act, 1976 was challenged on the ground of violating the basic structure of the Constitution. The National Tax Tribunal was vested with the power of adjudicating appeals which included a substantial question of law arising from the orders passed by the appellate authorities under the specific tax enactments. Prior to the 2005 Act, the jurisdiction to adjudicate these appeals lied with the jurisdictional High Court. Therefore, the facts of the case of Madras Bar Association Supra are also not applicable to the facts of the present case as no substitution of the jurisdiction of the Hon'ble High Courts has taken place under the CGST Act, 2017. 62. Therefore, the sequitur of the above discussion is that this Authority has not replaced or substituted any function which the Courts were performing hitherto. Though it performs quasi-judicial functions but it cannot be equated with a judicial tribunal. Also, it performs its functions in a fair and reasonable manner in accordance with the Act but does not have the trapping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts of the present case and hence, the law settled in the above cases in not being relied upon. 65. The Respondent has also alleged that the DGAP has wrongly included the GST in the profiteered amount. However, as far as the issue of including the GST charged by the Respondent in the profiteered amount is concerned the DGAP has correctly included it in the profiteered amount as the Respondent has not only charged additional prices from his customers on the flats purchased by them which they were legally not bound to pay as they were entitled to the benefit of ITC due to which the prices should have been commensurately reduced but he has also forced them to pay additional GST on the illegally charged prices which they should not have paid. Had he not charged extra GST the customers would have paid less prices and thus got the benefit of ITC. The Central as well as the Government of Haryana have sacrificed their tax revenue in favour of the flat buyers to give them benefit of reduced prices which the Respondent has denied and thus, he has defeated the very aim of passing on the benefit of ITC. Therefore, the illegally charged additional GST has been rightly included in the prof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the DGAP in Annexure-18 of his Report dated 24.09.2019. These buyers are identifiable as per the documents placed on record and therefore, the Respondent is directed to pass on an amount of Rs. 13,35,79,636/- and the amount of Rs. 1,04.734/- to the other flat buyers and the Applicant No. 1 respectively along with the interest @ 18% per annum from the dates from which the above amount was collected by him from them till the payment is made, within a period of 3 months from the date of passing of this order as per the details mentioned in Annexure-18 attached with the Report dated 24.09.2019. 68. Accordingly. 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 of the above Project commensurate with the benefit of ITC received by him as has been detailed above. Since the present investigation is only up to 31.03.2019 any benefit of ITC which accrues subsequently shall also be passed on to the buyers by the Respondent. The concerned Commissioner CGST/SGST shall ensure that the above benefit is passed on to the eligible flat buyers. In case the above benefit is not passed on by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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