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2020 (1) TMI 1579 - NATIONAL ANTI-PROFITEERING AUTHORITYProfiteering - purchase of flat - benefit of Input Tax Credit (ITC) not passed by way of commensurate reduction in the price - Input Tax Credit - clubbing of turnover of two separate projects for the purpose of calculation of profiteering - contravention of section 171 of CGST Act - HELD THAT:- It evident from the documents placed that Project 1 and Project 2 are two separate projects in as much as these relate to two distinct RERA registrations, separate approvals issued by the NOIDA Development Authority, distinct sanction plans/ maps and completely distinct construction schedules, project 1 having been launched and initiated in the pre GST period whereas construction of project 2 started only after the receipt of mandatory approval of the relevant authority on 5.11.2018 and the statutory RERA registration in December 2017 - the contention of the DGAP that the two projects are covered under the same GST registration and have a common electronic credit ledger cannot be the ground to club the two projects. It is also pertinent to mention here that the records indicate that the Respondent has apportioned the ITC of the two projects and has thus not utilized the ITC of one project for payment of GST pertaining to other project. The DGAP is directed to investigate afresh by treating the projects separately as has been done in the previous cases which has been quoted by the Respondent by taking merits of the two projects into account so that profiteered amount can be tenably computed. The Respondent is also directed to make available all the documents/proofs/evidences desired by the DGAP. The assessment order clearly states that the Respondent has been collecting VAT from his customers for year 2013-14 to Jun-2017 on pro-rata basis and is also depositing the same in accordance with rules. This documentary evidence being in the form of the VAT assessment order passed by the competent authority is indisputable in its own right. Hence it needs careful consideration without following the rhetorical assertion that similar cases have been decided in the identical manner for the state of Uttar Pradesh as each such case has its own distinct facts and has to be decided upon based on whether the conditions for incorporating credit of VAT paid in the pre GST period in the computation of profiteering are fulfilled or not. This case, including the computation of profiteering in the two projects, need to be revisited by the DGAP through a thorough investigation, keeping in view the above directions of the Authority that project 1 and project 2 are two separate projects and hence the ITC/turnover of the two cannot be clubbed for the purpose of calculation of profiteering.
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