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TMI Blog2022 (4) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... e 133 (1) of the CGST Rules, 2017 this order was required to be passed within a period of 6 months from the date of receipt of the Report from the DGAP under Rule 129 (6) of the above Rules. Since, the present Report has been received by this Authority on 05.03.2020 the order was to be passed on or before 04.09.2020. However, due to prevalent pandemic of COVID-19 in the Country this order could not be passed on or before the above date. Thus, the instant case does not fall under the ambit of Anti-Profiteering provisions of Section 171 of the CGST Act, 2017. Therefore, the allegation that the Respondent has not passed on the benefit of ITC in this case is not found sustainable. Accordingly, the application filed by Applicant No. 1, requesting action against the Respondent for alleged violation of the provisions of Section 171 of the CGST Act is dismissed being not maintainable. Application dismissed. - Case No.02/2022 - - - Dated:- 8-4-2022 - SH. AMAND SHAH, CHAIRMAN-CUM-TECHNICAL MEMBER, SH. PRAMOD KUMAR SINGH, TECHNICAL MEMBER, SH. HITESH SHAH, TECHNICAL MEMBER Present:- 1. Shri Darshan Joshi for Applicant No. 1 2. None for the Respondent. ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20. The Applicant No. 1 did not avail of the said opportunity. 4. The DGAP has informed that the Respondent in his replies vide letters/e-mails dated 04.11.2019, 22.11.2019, 25.11.2019, 10.12.2019 and 18.02.2020 has submitted:- a) That he had obtained the registration for the project Lodha Primo under the regulations of Maharashtra Real Estate (Regulation and Development) Act, 2016 in the month of January, 2018. In terms of the provisions of the RERA Act, bookings in the project could not happen till the registration was obtained. Since the registration was obtained for the subject project post the introduction of Goods and Services Tax only, the provisions of Section 171 dealing with Anti-profiteering cannot be made applicable to the above project in view of the fact that there was no additional ITC which had been availed or utilized by him, which was relevant for establishing any allegation of profiteering. b) That the Applicant No. 1 had booked the flat in the month of February, 2018, which was registered in April, 2018, post the introduction of GST and the price had been agreed mutually considering the taxation regime of GST only. c) That this principle had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payments had taken place post introduction of GST. Therefore, there was no pre-GST tax rate or ITC structure which could be compared with the post-GST tax rate and ITC. Hence, the DGAP has concluded that the provisions of Section 171 of the Central Goods and Services Tax Act, 2017 were not attracted in the present case. 8. The above Report was received by this Authority from the DGAP on05.03.2020 and was considered in its sitting held on06.03.2020 and it was decided to accord an opportunity of hearing on 25.03.2020. But, in the wake of the Corona pandemic and subsequent lockdowns in Delhi, the hearing scheduled on 25.03.2020 and 24.04.2020 could not be held. The hearing was held on 18.03.2021 wherein Sh. Darshan Joshi, the Applicant No. 1 was present in person. The Applicant No. 1 vide his e-mails dated 25.11.2020 and 16.10.2019 has filed his written submissions wherein he has submitted that:- a) Lodha Primo was a redevelopment project and consisted of three buildings, out of which two buildings were for old tenants who must not be paying GST and the third building was being sold in the open market. He has contended that there was possibility that the benefit of ITC towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 had forwarded copy of complaint enclosing Cost Sheet dated 08.03.2018 and correspondence made with the Respondent vide email dated 21.02.2019, 22.02.2019 and 22.03.2019. In the cost sheet, GST@ 12% on the consideration value has been mentioned and the Applicant No. 1 had booked the flat accordingly. Further, the Respondent vide email dated 21.02.2019 informed the above Applicant that for the bookings done after the GST was introduced; prices had been set taking into account the credits available to him for GST. b) Email dated 22.11.2019:- regarding possibility of cross utilization of ITC, the DGAP has submitted that according to the RERA details available at Maharashtra RERA website, registration for Tower C was obtained by the Respondent. The Letter of Intent of Development (IOD) in the present case was given on 21.11.2017 and thereafter, Commencement Certificate was issued by the Municipal Corporation of Greater Mumbai. Thus, the project was launched after implementation of the GST and there was no pre-GST tax rate or input tax credit structure that could be compared with the post-GST tax rate and input tax credit. The DGAP has further stated that the issue regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. 01.04.209 vide Notification No. 3/2019-Central tax (Rate) dated 29.03.2019 at the reduced rate of tax from 12% to 5 % within ITC. This option was to be exercised by 10.05.2019 to the jurisdictional authority. It was observed that the Respondent had not opted for composition, therefore, no further deliberation was required in the Report of the DGAP. It has stated that the Applicant No. 1 had an impression that the Respondent had opted for composition at a lesser rate and therefore, the rate reduction or ITC benefits was not passed on by the Respondent to him, which was not true. 11. The Standing Committee vide its submissions dated 02.12.2020 has contended that it took up the issue in its meeting held on 02.12.2020 and decided that it has already referred the matter to the DGAP for investigation and hence, has offered no further comments on this issue. 12. The Personal Hearing in the matter was held on 18.03.2021. However, before the order could be passed, one of the Technical Members of the Authority who had heard the matter was transferred out and thereafter the Chairman of the Authority has also left the Authority. Since, the quorum of the Authority of minimum three Memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instant case, the provisions of Section 171 dealing with Anti-profiteering cannot be made applicable to the said project in the view of the fact that there was no additional ITC which had been utilized by the Respondent, which was relevant for establishing allegation of profiteering. Further, no demand has been raised by the Respondent upon Applicant No.1 in the pre-GST regime. The Letter of Intent of Development, Commencement Certificate of the project, launching of the project and receipt of the payments had taken place in the post-GST regime and hence, there was no pre-GST tax rate or ITC structure which could be compared with the post-GST tax rate and ITC. On this basis, it would emerge that the Respondent had neither benefited from additional ITC nor had there been a reduction in the tax rate in the post-GST period and therefore it does not qualify to be a case of profiteering. 16. In the given facts, where the project was launched after introduction of GST, booking/price of the flat has been made/finalised by the Applicant No. 1 in February 2018 and during the whole period the Respondent continued to pay the GST at same rate, and also in absence of any other legally enforc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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