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TMI Blog2022 (6) TMI 1284X X X X Extracts X X X X X X X X Extracts X X X X ..... and determines that the Respondent has profiteered by an amount of Rs. 1,54,269/- for the project Celebrity Garden Block K during the period of investigation i.e. 01.07.2017 to 30.09.2019. The above amount that has been profiteered by the Respondent from his Home buyers in the above mentioned project. The claim of their refund along with the interest @18% thereon, from the date when the above amount was profiteered by him till the date of such payment, in line with the provisions of Rule 133 (3) (b) of the CGST Rules 2017, need to be verified by the concerned CGST/SGST Commissionerate - 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 commensurate with the benefit of ITC received by him. Penalty - HELD THAT:- It is evident from the narration of facts that Respondent has denied the benefit of Input Tax Credit (ITC) to the customers/Home buyers in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and he has thus committed an offence under Section 171 (3A) of the above Act and therefore, he is liable for imposition of penalty under the provisions of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject by a commensurate reduction in the prices of the residential units supplied by him in terms of Section 171 of the CGST Act, 2017. ii. Further, we also find that there is a significant variation in the figures adopted by the DGAP in Table-'B' in his Report dated 23.03.2020 vis-a-vis the figures mentioned in the statutory tax returns filed by the Respondent, i.e. the figures of ITC and turnover for the period from 01.04.2016 to 30.062017 and the post-GST period from 01.07.2017 to 30.09.2019. The said variation in the two sets of figures of ITC and turnover was detailed in the Table below; - Table Period Turnover as per DGAP's Report (Table-B)(L) Turnover as per Returns (M) Difference (N=M-L) Pre-GST from 01.04.2016 to 30.06.2017 4,29,06,293 6,72,15,874 2,43,09,581 Post-GST from 01.07.2017 to 30.09.2019 8,10,23,545 9,05,36,894 95,13,349 Period ITC as per DGAP's Report (Table-B)(L) ITC as per Returns (M) Difference (N=M-L) Pre-GST from 01.04.2016 to 30.06.2017 2,55,624 11,62,346 9,06,722 Post-GST from 01.07.2017 to 30.09.2019 5,08,131 75,09,076 70,00,945 Given the above variations in the figures of Turnovers and ITC's we find the ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Particulars for the project "Celebrity Garden Block-K" S.No. Particulars Total (Pre-GST) April 2016 to June 2017 Taxable Turnover from July 2017 to September 2019 Total (Post-GST) 1 CENVAT of Service Tax Paid on Input Services used (A) 2,55,624 - - 2 ITC of VAT Paid on Purchase of Inputs (B) - - 3 Total CENVAT/ITC Available (C)= (A+B) 2,55,624 - - 4 ITC of GST Availed (D) - 5,08,131 5,08,131 5 Turnover for as per Home Buyers List (E) 4,29,06,293 8,10,23,545 8,10,23,545 6 Total Saleable Carpet Area (in SQF) (F) 91,010 91,010 7 Total Sold Carpet Area (in SQF) relevant to turnover (G) 47,875 69,695 8 Relevant ITC [(H)=(C)*(G)/(F) or (D)*(G)/(F)] 1,34,468 3,89,124 Ratio of ITC Pre/Post-GST [(I)=(H)/(E)] 0.31% 0.48% From the ab From the above table, the DGAP has observed that the Respondent had been benefitted from additional Input Tax Credit to the tune of 0.17% of the turnover. d) Based on the figures contained in the Table "B", the comparative figures of the ratios of ITC availed/available to the turnovers in the pre-GST and post-GST periods as well as the turnovers, the recalibrated base price and profiteering during the post G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /Cenvat/Input Tax Credit of particular (availed during the month) months only. b) As regard to maintenance of separate bank accounts for each of his project registered separately under RERA Act, 2016, the DGAP has clarified that the Respondent has submitted the project wise details of Bank name along with the Bank Account Number as the detailed are given below:- Sr.No. Collection Block Bank Name Address Account No. A B C D E 1 Collection Block J Indian Bank 1-2, Ashok Marg Lucknow - 226001 6719493677 2 Collection Block K Indian Bank 1-2, Ashok Marg, Lucknow - 226001 6719493779 3 Collection Block N Indian Bank 1-2, Ashok Marg, Lucknow - 226001 6719493815 4 Collection Block P Indian Bank 1-2, Ashok Marg, Lucknow - 226001 6719493837 It was observed by the DGAP that the Respondent had maintained separate bank accounts for each of his blocks/projects registered separately under the RERA Act, 2016. Thus, the requirement of maintaining separate bank accounts for all the four blocks/project wise, under the RERA Act, 2016 had been fulfilled by the Respondent. Consequently, the four blocks/project "Celebrity Garden" cannot be considered as a single proje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en paid by them to their customers after accepting the same. However, the Applicant No. 1 did not submit any submissions against the DGAP's report. 5. The proceedings in the matter could not be completed by the Authority due to lack of required quorum of Members in the Authority during the period 29.04.2021 till 23.02.2022 and the minimum quorum was restored only w.e.f. 23.02.2022. The matter was taken up for further proceedings vide Order dated 23.03.2022 by which the DGAP was directed to submit verification report to the effect that the benefit of ITC was actually passed on to the eligible buyers as the Respondent vide his letters dated 15.02.2021 and 18.03.2021 had admitted to have profiteered and had thus passed on an amount of Rs.1,54,269/-. The DGAP has submitted his verification report on 27.04.2022 stating that the Respondent had provided 12 Email id's out of total 40 buyers. Further, the DGAP stated that out of these 12 buyers only 5 buyers replied and confirmed the receipt of payment made by the Respondent. 6. Hearing in the matter was held on 07.06.2022. Same was attended by Shri Umesh Tiwari, Accounts Head for the Respondent. Applicant No. 1 did not appear for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e passed on by the Respondent to the eligible recipients works out to Rs.1,54,269/-. The DGAP has calculated the amount of ITC benefit to be passed on to all the eligible recipients as Rs.1,54,269/- on the basis of the information supplied by the Respondent. The Respondent has not disputed the methodology adopted by the DGAP or the amount of profiteering worked out by the DGAP. The Respondent vide E-mail dated 13.07.2020 has given a statement of anti-profiteering amount paid to customers and interest separately and enclosed the list of such recipient sent vide E-mail dated 29.05.2020. The details mentioned in the email are as under:- Sr.No. Customer Code Name of Customer Profiteering including tax 1 K704 Imran Khan 0 2 K003 Rajesh Kumar 850/- 3 K001 Garima Kanchan/Amit Srivastava 3,364/- 4 K503 Akanksha W/o Nirvikar Singh 6,283/- 5 K1001 Anoop Kumar 1,292/- 6 K1003 Malti Singh/Atul Pratap Singh 9,284/- 7 K1004 Vikash Rathi 4,742/- 8 K101 Kul Bhushan Dwivedi/Sapna Dwivedi 606/- 9 K102 K/01/02 Nagendra Dixit 12,737/- 10 K103 Dr. Sangeeta Jaiswal/Dr. Ravi Jaiswal 5,823/- 11 K104 Nasreen Fatima 923/- 12 K1101 K/11/01 Himanshu Garg & Va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and therefore, he is liable for imposition of penalty under the provisions of the above Section. However, since the provisions of Section 171 (3A) have come into force w.e.f. 01.01.2020 whereas the period during which violation has occurred is w.e.f. 01.07.2017 to 30.09.2019, hence the penalty prescribed under the above Section cannot be imposed on Respondent retrospectively. 12. Since there are other projects (Blocks) under the single GST Registration No. i.e. 09AABCL8340C1ZP, the Authority has reason to believe that the Respondent may have resorted to the profiteering in the said projects also and hence, directs the DGAP under Rule 133 (5) to investigate all the others projects of the Respondent under the same GST registration which have not yet been investigated from the prospective of Section 171 of the CGST Act, 2017 and submit the complete investigation report for all the Projects under this single GST Registration. The Authority vide I.O 34/2020 dated 11.12.2020 has already directed DGAP to investigate other projects of the Respondent. 13. The concerned jurisdictional CGST/SGST Commissioner is directed to ensure compliance of this Order. It may be ensured that the ben ..... X X X X Extracts X X X X X X X X Extracts X X X X
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