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2022 (8) TMI 271 - GST
Profiteering - purchase of flat in Migsun Wynn - allegation of benefit of Input Tax Credit has not be passed on to the recipient by way of commensurate reduction in prices - contravention of section 171 of GST Act - interest and penalty - HELD THAT:- The Respondent has benefited from the additional ITC to the extent or 4.25% of the turnover during the period from July 2017 to December 2019 and hence the provisions of Section 171 of the CGST Act, 2017 have been contravened by the Respondent as he has not passed on the benefit of such additional ITC to his customers. Thus this Authority determines the profiteered amount as Rs.6,87,58,686/- (inclusive of GST@ 12% or 8% as applicable) in terms of Rule 133 (1) of the CGST Rules, 2017 [This amount is inclusive of profiteered amount, if any, in respect of the Applicant nos 1 to 12]. The above amount that has been profiteered by the Respondent from his home buyers shall be refunded/returned/passed on by him, if not already passed on, along with interest @18% thereon, from the date when the above amount was profiteered by him till the date of such payment, in accordance with the provisions of Rule 133 (3) (b) of the CGST Rules 2017.
Interest - HELD THAT:- The Respondent is also liable to pay interest as applicable on the entire amount profiteered. i.e. Rs.6,87,58.685/-. Hence the Respondent is directed to also pass on interest to the homebuyers/customers/recipients on the entire amount profiteered, starting from the data from which the above amount was profiteered till the date of passing on/ payment, as per the provisions of Rule 133 (3) (b) of the CGST Rules 2017.
Penalty - HELD THAT:- The Respondent denied benefit of ITC to the homebuyers/customers of the units being constructed by him in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has committed an offence under Section 171 (3A) of the above Act. Section 171 (3A) Of the CGST Act, 2017 has been inserted in the CGST Act, 2017 vide Section 112 of the Finance Act. 2019, w.e.f. 01.01.2020 and hence, was not in force during the period of investigation i.e, from 01.07.2017 to 31.12.2019, when the Respondent had committed the above violation and hence, the penalty prescribed under Section 171 (3A) cannot be imposed on the Respondent retrospectively.
This Order having been passed today falls within the limitation prescribed under Rule 133(1) of the CGST Rules, 2017.