9911796707
TMI Blog2020 (3) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... se are that an application dated 23.08.2018 was filed before the Standing Committee on Anti-profiteering under Rule 128 (1) of the CGST Rules, 2017 by the Applicant No. 1 alleging profiteering by the Respondent. The Applicant No. 1 had alleged in his application that he had purchased Flat No. 05, Type-B, 2nd floor, in the project Kishalay Abasan, 14/3 Ghoshpara and the Respondent had not passed on the benefit of Input Tax Credit (ITC) to him by way of commensurate reduction in the price, on introduction of the GST w.e.f. 01.07.2017. The West Bengal State Screening Committee on Anti-profiteering had examined the above application in its meeting held on 19.11.2018 and observed that there was merit in the complaint as preliminary investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has submitted his reply vide letters and e-mails dated 08.05.2019 and 27.05.2019 along with the following documents/information:- (a) Copies of GSTR-1 Returns for the period from July, 2017 to March, 2019. (b) Copies of GSTR-3B Returns for the period from July, 2017 to March, 2019. (c) Copies of ST-3 Returns for the period from April, 2016 to June, 2017. (d) Copies of sale agreement/contract with the above Applicant. (e) Copies of Audited Balance Sheets for the FY 2016-17 & FY 2017-18. 5. The DGAP has further stated that the Respondent, vide his letter dated 27.05.2019, submitted copy of the sale agreement wherein the Respondent had agreed to sell a flat measuring 950 sq. ft. (super built up area) at the basic sale prices of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st houses upto a carpet area of 60 square metres was further reduced from 12% GST (effective rate was 8% in view of 1/3rd abatement on value), vide Notification No. 1/2018-Central Tax (Rate) dated 25.01.2018 (in respect of affordable and low-cost house upto a carpet area of 60 square meters). Thus it was submitted that in the case of construction service the effective rate of tax (@ 4.5%) in the Pre-GST era was lower than the effective rate of tax @ 8% or 12%, in the Post-GST era. 7. The DGAP has further submitted that during the pre-GST era the Respondent was eligible to avail CENVAT Credit of Service Tax paid on the input services. Further, post GST, the Respondent was eligible to avail the input tax credit of GST paid on all the inputs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the amount of credit available in the pre or the post GST era could be made. Therefore, the DGAP has claimed that in the absence of availment of any credit by the Respondent, there may not be any benefit of Input Tax Credit which has to be passed on by way of commensurate reduction in price. 10. The DGAP has also contended that:- (a) After the introduction of GST w.e.f. 01.07 2017, the rate of tax on the construction services has increased. Thus the instant case was not covered under the criteria of "reduction in rate of tax on any supply of goods or services" (b) No benefit has been availed by the Respondent on account of input tax credit post GST. Thus, the instant case was not covered under the criteria of "the benefit of input t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CGST Act, 2017 by not passing on the benefit? 14. It is clear from the perusal of Section 171 of the CGST Act, 2017 read with Rule 127 of the CGST Rules, 2017 that this Authority is required to determine whether any reduction in the rate of tax on any supply of goods or services or the benefit of input tax credit has been passed on to the recipients by way of commensurate reduction in prices or not. Accordingly this Authority has to examine whether there has been any benefit of reduction in the rate of tax or benefit of ITC to the Respondent that needs to be passed on to the Applicant No. 1 by way of commensurate reduction in prices. 15. It is also apparent from the various documents submitted by the Respondent and the DGAP that the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any benefit of CENVAT or ITC in the pre and post GST era and hence, there was no additional benefit available to the Respondent which was to be passed on to his buyers. 18. It is further revealed from the report of the Deputy Commissioner of State GST that the Respondent has not availed benefit of ITC after coming in to force of the GST and he has charged GST @18% which was required to be charged as per the Notification dated 01.07.2017. 19. Based on the above facts it is established that the Respondent was not liable to pass on the benefit of ITC to the Applicant No. 1 and thus he has not contravened the provisions of Section 171 of the CGST Act, 2017. Therefore, we find no merit in the application filed by the Applicant No. 1 and the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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