9911796707
TMI Blog2024 (1) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... Anti-Profiteering (hereinafter referred to as DGAP ) after detailed re-investigation under Rule 129 (6) of the Central Goods Service Tax (CGST) Rules, 2017 (hereinafter referred to as the Rules ) pursuant to Interim Order No. 08/2022 dated 27.07.2022 passed by the erstwhile National Anti-Profiteering Authority (hereinafter referred to as NAA ) under Rule 133(4) of the CGST Rules, 2017. 2. The brief facts of the present case are that the Applicant No. 1 2 had filed application before the Standing Committee on Anti-profiteering under Rule 128 of the CGST Rules, 2017, alleging profiteering by the Respondent in respect of purchase of Flat Nos. C-1105 and G-1115 respectively in the Respondent's project Prateek Edifice , situated in Sector-107, Noida, Uttar examined by the Standing Pradesh. The aforesaid reference was Committee on Anti-profiteering, whereby it was decided to refer the matter to the DGAP, to conduct a detailed investigation. The said application Was examined by the DGAP and the Investigation Report dated 27.11.2020 under Rule 129(6) of the Rules, was furnished to the NAA. Vide the said Report, it was submitted that on the basis of the CENVAT/Input Tax Credit availabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort on 14.02.2023 under Rule 133(4) of the CGST Rules, 2017, wherein, it has been stated that: - I. Reply to the observations made by NAA vide Para 6(a) of I.O. No. 08/2022 dated 27.07.2022 a. As directed by the NAA, to check the veracity of documents submitted by the Respondent during the earlier investigation, the DGAP asked the Respondent to submit the Builder buyer agreement as well as customer ledgers in respect of Applicant No. 1, Applicant No. 2 and Sh. Vikas Agarwal. b. Vide letter dated 27.01.2023, the Respondent submitted copies of builder buyer agreements and customer ledgers for Applicant No. 1, Applicant No. 2 and Sh. Vikas Agarwal and stated that Applicant No. 1 and Sh. Vikas Agarwal had booked unit No. C-1105 1106 on same date, but the ad hoc charges to be charged from them were separate. The Respondent also submitted that benefit of ITC given to each customer was computed individually depending on various factors such as cost of flat, installment due date, installment payment date, date of booking etc. and thus the benefit of ITC given to both Applicant No. 1 and Sh. Vikas Agarwal was not comparable. C. On scrutiny of all the documents submitted by the Respondent in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant No. 2, since the demand raised/advances received during the period of investigation were different from both the Applicant No. 1 Sh. Vikas Agarwal, the profiteered amount was also different. Thus, on examination of documents submitted by the Respondent during the present investigation, it was observed that the documents submitted by the Respondent during the earlier investigation were in order and based on the same, the investigation report was submitted by the DGAP to the NAA on 27.11.2020. Accordingly, the profiteering computation was also correct in respect of all the buyers as mentioned in the report dated 27.11.2020. II. Reply to the observations made by NAA vide Para 6(b) of 1.O. No. 08/2022 dated 27.07.2022:- a. The total saleable area reflected in the Report dated 27.11.2020 was based on the home buyers list furnished by the Respondent during the course of investigation. On the objection raised by Applicant No. 1 and as per the directions of the NAA that the DGAP was directed to re-calculate the saleable area based upon his RERA documents/registration, the Respondent was requested to submit reconciliation of the area in home buyers list vis-a- vis the area reflected in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the super area of the unit, and not the carpet area. Since, the payments were made for the super area, profiteering was worked out on the demand raised and advances received in respect of the super area. It could not be restricted to the carpet area. Therefore, it was observed that it would not be proper to recalculate the saleable area based upon RERA documents, as directed by the NAA. This had been the uniform practice followed by the DGAP in all cases of investigation in respect of real estate. C. That the total saleable area of 12,19,138 sq. ft. was correctly taken in the Report dated 27.11.2020 as per home buyers list furnished by the Respondent. The same was corroborated by the fact that as per RERA summary the total saleable area (carpet area + balcony area - loading) was 10,16,795 sq. ft., which was less than the super area reflected in the home buyers list. This also explained that area of 2,02,343 the Respondent had loaded an (12,19,138-10,16,795) sq. ft. III. Thus, with reference to the above issue raised by the Applicant No. 1 before NAA, on scrutiny of documents, it was observed that total saleable area i.e. 12,19,138 sq. ft. considered for computation of profiteer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fiteering was not correct, but, in order to avoid any further litigation, the Respondent was ready to pay the balance amount of anti-profiteering amounting of Rs. 7,70,819/- as per method that might be prescribed by the concerned authority. 7. The Applicant No. 1 vide his written submissions dated 24.07.2023 on the DGAP's report dated 14.02.2023, has made the following submissions: - I. The DGAP has not re-investigated the matter fully, properly, fairly and reasonably and has not considered all the material relevant to issues raised by Applicant No. 1 in his affidavit dated 18.05.2022. II. Vide para 8 of 1.O. No. 08/2022 dated 27.07.2022, the NAA directed DGAP to calculate profiteered amount in respect of not only Applicant No. 1, but also other home buyers. Apart from Applicant No. 1, some of such homebuyers, having not been paid full profiteered GST benefit include Sh. Rajender Shankar and Sh. Afzal Ahmed Khan. III. No such credit notes were ever issued to the Applicant No. 1, his cousin Sh. Vikas Agarwal and other home buyers i.e. Sh. Rajender Shankar and Sh. Afzal Ahmed Khan as mentioned by the Applicant No. 1 in Annexure -C to the above submissions and were claimed to be f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... points raised by the Applicant No. 1 had been properly addressed in the Report dated 14.02.2023. Even the NAA vide Para 6(a) 6(b) of 1.O. No. 08/2022 dated 27.07.2022 had directed DGAP to re-investigate the case on specific grounds. From these directions, it was very clear that NAA had directed DGAP to re-investigate the matter on two specific points: -(1) To check the authenticity of the documents submitted by the Respondent and (2) check correct saleable area as per RERA records. Both the above points had been re-investigated properly and thoroughly by the DGAP and findings were recorded in the Report dated 14.02.2023. II. The Applicant No. 1 had got benefit of ITC of Rs. 16,419/- as against the profiteered amount of Rs. 57,900/-, which was already less than what was required to be passed on to him. In case of Sh. Afzal Ahmed Khan and Sh. Rajender Shankar, they had received Rs. 2,06,416/- and Rs. 16,36,867/- respectively as benefit of ITC as against profiteered amount of Rs. 2,00,885/- and Rs. 15,74,230/- respectively. III. The DGAP had verified the credit notes issued to Sh. Vikas Agarwal with other documents such as ledgers and found that credit Note No. 00128/18-19 dated 10.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... built up area of 192.68 sq. mtr., the super area was 232.26 sq. mtr., which explained the element of loading as stated by the Respondent. The total saleable area reflected in the Report dated 27.11.2020 was 12,19,140 sq. ft., which was as per home buyers list furnished by the Respondent. The minor difference of 02 sq. ft. between the figure of saleable area in home buyer list and the reconciliatory statement might be on account of rounding off of figures. The figure of 12,39,814 sq. ft. mentioned by the Applicant No. 1 had not been found in the RERA summary. Further, the calculations submitted by the Applicant No. 1 for 12,39,814 sq. ft. and declaration submitted to New Okhla Industrial Development Authority (NOIDA) for 12,79,980.50 sq. ft. by the Respondent had been considered and as per the practice followed by the DGAP for consideration of area of a project, the project Report submitted to RERA had been taken as authentic fact. Further the figure of 12,79,980.50 sq. ft. in the declaration submitted by the Respondent to NOIDA under Section 12(1) of the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 Rule 3 of the Uttar Pradesh Apartment (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 2010 under which it has been declared by the Respondent as 12,79,980.50 sq. ft. However, the same as per the Respondent's declaration under RERA was 12,39,814 sq. ft. at the time of registration of the project and as per the homebuyers list, it was 12,19,140 sq. ft. as was mentioned in the DGAP's report. b) Another contention raised by the Applicant No. 1 on the DGAP's report dated 14.02.2023 is that vide Para 8 of 1.O. No. 08/2022 dated 27.07.2022, the NAA directed DGAP to calculate profiteered amount in respect of not only Applicant No. 1, but also other home buyers. Apart from Applicant No. 1, some of such homebuyers, having not been paid full GST benefit included Sh. Vikas Agarwal, Sh. Rajender Shankar and Sh. Afzal Ahmed Khan as mentioned by the Applicant No. 1 vide Annexure -C to his submissions dated 24.07.2023. Applicant No. 1. further, added that there is no mention and discussion about compliance of Para 8 of 1.O. No. 08/2022 in DGAP's report dated 14.02.2023. Only Para 6(a) 6(b) has been addressed in the DGAP's report dated 14.02.2023. c) The Applicant No. 1 further contended that DGAP's report dated 14.02.2023 is completely silent about the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
