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2020 (7) TMI 309 - NAPA - GSTProfiteering - sale of Flat - allegation that the benefit of input tax credit not passed on - contravention of section 171 of CGST Act - penalty - HELD THAT:- the Respondent has passed on benefit of ₹ 28,22,65,749/- to the home buyers on account of ITC which has been duly confirmed by the DGAP. Therefore, the Respondent is directed to pass on the balance benefit of ITC of ₹ 1,04,77,604/-in case of 908 residential flat buyers including the Applicant No. 1, mentioned at Sr. 1 & 2 of Table-G. as per Annexure-15 of the DGAP’s Report dated 10.12.2019. The details of the profiteered amount and the buyers have been mentioned by the DGAP in the above Annexure. These buyers are identifiable as per the documents placed on record and therefore, the Respondent is directed to pass on an amount of ₹ 1,04,23,791/- and the amount of ₹ 53,813/- to the other flat buyers and the Applicant No. 1 respectively along with the interest @ 18% per annum from the dates from which the above amount was collected by him from them till the payment is made, within a period of 3 months from the date of passing of this order as per the details mentioned in Annexure-15 attached with the Report dated 10.12.2019 in terms of Rule 133 (3) (b) of the above Rules. The Respondent shall not adjust any excess ITC benefit which he has passed on as per Annexure-16 against the benefit which is due to the beneficiaries as per Annexure-15. In case the above amount is not refunded by the Respondent during the above period it shall be recovered by the concerned Commissioner CGST/CGST and paid to the eligible buyers. 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 of the above Project commensurate with the benefit of ITC received by him, Since the present investigation is only up to 31.03.2019 any benefit of ITC which accrues subsequently shall also be passed on to the buyers by the Respondent Accordingly, the DGAP under 133 (4) of the CGST Rules, 2017 is directed to further investigate the amount of benefit which is required to be passed on by the Respondent w.e.f. 01.042019 till 30.06.2020 or till the date of issue of Completion Certificate whichever is earlier. Penalty - HELD THAT:- The Respondent has denied benefit of ITC to the buyers of the flats being constructed by him in his above project in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and he has thus resorted to profiteering. Hence, he has committed an offence under Section 171 (3A} of the CGST Act, 2017 and therefore, he is apparently liable for imposition of penalty under the provisions of the above Section. Accordingly, a Show Cause Notice be issued to him directing him to explain why the penalty prescribed under Section 171 (3A} of the above Act read with Rule 133 (3) (d) of the CGST Rules, 2017 should not be imposed on him.
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