TMI Blog2022 (6) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent during the pre-GST period (April-2016 to June-2017) was 3.56% and during the post-GST period {July-2017 to March-2019), it was 11.74% for the project Sierra-Vizag . This confirms that, post-GST, the Respondent has been benefited from additional ITC to the tune of 8.18% [11.74% (-) 3.56%] of his turnover for the said project and the same was required to be passed on to the customers/flat buyers/recipients. The DGAP has calculated the amount of ITC benefit to be passed on to all the flat buyers as Rs. 6.46,06,227/- for the project Sierra-Vizag , the details of which are mentioned in Table-D. The Authority finds that the Respondent has profiteered by an amount of Rs. 6,46,06,227/- for the Project Sierra-Virag during the period of investigation i.e. 01.07.2017 to 31.03.2019, The above amount that has been profiteered by the Respondent from his home buyers in the above said Project shall be refunded by him, along with interest @18% thereon, from the date when the above amount was profiteered by him did 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Report dated 28.02.2020, inter-alia stated that-- i. The aforesaid application was examined by the Standing Committee on Anti-profiteering, in its meeting held on 05.07.2019, the minutes of which were received by the DGAP on 05.08 2019, whereby it was decided to forward the same to the DGAP to conduct a detailed investigation in the matter. Accordingly. investigation was initiated to collect evidence necessary to determine whether the benefit of input tax credit had been passed on by the Respondent to the Applicant No. 1 in respect of construction service supplied by the Respondent. ii. On receipt of the reference from the Standing Committee on Anti-profiteering, a notice under Rule 129 of the Rules was issued by the DGAP on 14 08.2019, calling upon the Respondent to reply as to whether he admitted that the benefit of input tax credit had not been passed on to the Applicant No 1 by way of commensurate reduction in price and if so, to suo moto determine the quantum thereof and indicated the same in his reply to the notice as well as furnish all supporting documents Vide the said notice, the Respondent was also given an opportunity to inspect the non-confidential evidences/i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod April, 2016 to June, 2017. f. Copies of all demand letters issued and sale agreement made with the Applicant. g. Copy of Balance Sheet for Financial Years 2016-17 2017-18. h. Details of VAT, Service Tax, ITC of VAT, Cenvat credit for the period April, 2016 to June,2017 and output GST and ITC of GST for the period July, 2017 to July. 2019. i. Copy of Electronic Credit Ledger for the period 01.07.2017 to 31.07.2019. j. Cenvat/Input Tax Credit Register for the Financial Years 2016-17, 2017-18, 2018-19 and for the period April, 2019 to July, 2019 reconciled with VAT, ST-3 and GSTR-3B return, k. Details of applicable tax rates, Pre-GST and Post-GST, l. List of home buyers in the project 'Sierra-Vizag . m. Copy of RERA registration certificate and certificate from Architect and Engineer. vii. In the notice dated 14.08 2019, the Respondent was informed that if any information/documents were provided on confidential basis, in terms of Rule 130 of the above Rules, a non-confidential summary of such information/documents was required to be furnished. However, the Respondent informed vide e-mail dated 09.06.2020 that (a) ST-3 return submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been furnished in Table-B below. Table-'B' Sr.No. Particulars Percentage (%) pf Payment 1. On Booking 10.00% 2. Within 60 days from date of booking 10.00% 3. On Commencement Work 10.00% 4. On Commencement of Basement/Parking 10.00% 5. On Commencement of 1 st Floor Slab 10.00% 6. On Commencement of 3 rd Floor Slab 10.00% 7. On Commencement of 6 th Floor Slab 10.00% 8. On Commencement of 9 th Floor Slab 5.00% 9. On Commencement of 12 th Floor Slab 5.00% 10. On Commencement of 15 th Floor Slab 5.00% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... librate the selling price of such units to be sold to the prospective buyers by considering the proportionate benefit of additional input tax credit available to him post-GST. xii. As regards the allegation of profiteering, it was observed that prior to 01.07 2017, i.e., before the GST was introduced, the Respondent was eligible to avail credit of Service Tax paid on the input services (CENVAT credit of Central Excise Duty was not available) in respect of the flats for the project Sierra-Vizag sold by him. The Respondent was not eligible to avail input tax credit of VAT paid on the inputs, as he was availing Composition Scheme. Further, post-GST, the Respondent could avail input tax credit of GST paid on all the inputs and input services. From the data submitted by the Respondent covering the period April, 2016 to July, 2019, the details of the input tax credits availed by him. his turnover from the project Sierra-Vizag . the ratios of input tax credits to turnovers, during the pre-GST (April, 2016 to June. 2017) and post-GST (July. 2017 to March, 2019) periods, have been furnished in Table-C below, Table- C' (Amount in Rs.) Sr.No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional input tax credit benefit could not be attributed after 01 04.2019. This clearly confirmed that post-GST, the Respondent had benefited from additional input tax credit to the tune of 8.18% (11 74% (-) 3,56%1 of the turnover upto 31.03.2019 only. xiii. The DGAP has observed that the Central Government, on the recommendation of the GST Council, had levied 18% GST (effective rate was 12% in view of 1/3rd abatement for land value) on construction service. vide Notification No 11/2017-Central Tax (Rate) dated 28.06.2017. The effective GST rate was 12% for flats. Accordingly, on the basis of the figures contained in Table- 'B' above, the comparative figures of the ratios of input tax credits availed/available to the turnovers in the pre-GST and post-GST periods as well as the turnovers, the recalibrated base price and the excess realization (profiteering) during the post-GST period, have been furnished in Table-D below. Table-D (Amt In Rs.) Sr.No Particulars 1. Period A July, 2017 to March, 2019 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that he had total of 545 units in the whole project and demand was raised from 483 buyers including the Applicant No 1 as on 31 03.2019 The homebuyers of the flats/unit no wise break-up of this amount has been given in Annex-13 of the Report dated 26 06 2020. This amount was inclusive of profiteered amount of Rs 1,62,382/-(including GST) which was the profiteered amount in respect of Applicant No. 1 mentioned at serial no. 216 of Annex-13 of the Report dated 26.06.2020. xv. On the basis of the details of outward supplies of the construction service submitted by the Respondent, it was observed that the service had been supplied in the State of Andhra Pradesh only. 3. Therefore, the DGAP has concluded that:- i. The benefit of additional Input tax credit of @8.18% of the taxable turnover had accrued to the Respondent and the same was required to be passed on to the Applicant No, 1 and other recipients. It was also observed that the provision of Section 171 of the Central Goods and Services Tax Act, 2017 had been contravened by the Respondent in as much as the additional benefit of input tax credit @ 8.18% of the base price received by the Respondent during the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive of Article 14 and 19 of the Constitution i. That the present proceedings had been initiated against the Respondent in terms of section 171 of the CGST Act read with Rule 126 of the CGST Rules, which lay down the anti-profiteering mechanism under GST Laws. The relevant provisions of the CGST Act and the CGST Rules read as follows. Anti-profiteering measure. 171. (1) Any reduction in rate of tax on any supply of goods or services or the benefit of input tax credit shall be passed on to the recipient by way of commensurate reduction in prices (2) The Central Government may, on recommendations of the Council, by notification., constitute an Authority, or empower an existing Authority constituted under any law for the time being in force, to examine whether input tax credits availed by any registered person or the reduction in the tax rate have actually resulted in a commensurate reduction in the price of the goods or services or both supplied by him. (3) The Authority referred to in sub-section (2) shall exercise such powers and discharge such functions as may be prescribed (3A) Where the Authority referred to in sub-section (2) after holding examinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for determining the chargeable profits and gains. All transactions encompassed by s. 45 must fall under the governance of its computation provisions. A transaction to which those provisions cannot be applied must be regarded as never intended by s. 45 to be the subject of the charge. This inference flows from the general arrangement of the provisions in the I.T. Act, where under each head of income the charging provision is accompanied by a set of provisions for computing the income subject to that charge. The character of the computation provisions in each case bears a relationship to the nature of the charge. Thus, the charging section and the computation provisions together constitute an integrated code. When there is a case to which the computation provisions cannot apply at all, it is evident that such a case was not intended to fall within the charging section. Otherwise, one would be driven to conclude that while a certain income seems to fall within the charging section there is no scheme of computation for quantifying it. The legislative pattern discernible in the Act is against such a conclusion. It must be borne in mind that the legislative intent is presumed to run uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant. viii. That in the absence of a determining mechanism, passing of benefit of input tax credit, if any, at the time of transfer of possession after considering regular changes in tax rate on materials/ services relating to real estate sector, could not have been rejected by the DGAP. In fact, the DGAP had not given any reason whatsoever for rejecting this contention of the Respondent and had simply proceeded to compute the profiteering based on a self-devised methodology, which did not find mention anywhere in the GST Laws. B. Rule 126 of the CGST Rules was in violation of section 171 itself i. That as per section 171 (2) of the CGST Act, this Authority was formed to examine whether input tax credit availed by any registered person or reduction in tax rate had resulted in the commensurate reduction in the price of goods or service or both supplied by him. Thus. this Authority was a body to examine the profiteering. It had not been formed as a body for determining the methodology of profiteering. ii. That the above, Rule 126 of the CGST Rules giving the power to this Authority to determine the methodology and procedure for determination as to whether reduction in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pricing was dependent upon various parameters. Further, the consideration paid by a buyer was not just for the construction of a particular unit/flat but also for various other amenities that come with the flat. Hence, computation of input tax credit benefit, before completion of project would not reflect the true picture. vi. That input tax credit facility itself stood withdrawn in certain cases. With effect from 01 04 2019. The Respondent had also opted for the new scheme issued vide Notification No. 3/2019-CT (Rate) dated 29.03.2019. In terms of this Notification, the Respondent was required to pay GST at the effective rate of 5% and was not entitled to avail input tax credit with effect from 01.04.2019. Hence, it was evident that the tax rates and credit facility under GST laws were dynamic. Consequently, the correct computation of benefit, if any, could only be done once the project was complete. D. Computation methodology followed by the DGAP did not reflect the true result i. That the DGAP had computed the profiteered amount by comparing the input tax credit ratio to the taxable turnover ratio during pre-GST and post-GST periods. It was submitted that the computat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and marble etc. in post-GST period would also result in an increase in the input tax credit claimed by the Respondent. This was evident from a simple comparison between rate of inputs prior to and after introduction of GST. Sample copy of invoices reflecting increase in cost of raw-materials/ inputs was enclosed. vi. that the DGAP had treated it was a mere arithmetical calculation and had simply compared the ratio of input tax credit to turnover, in complete disregard of various other factors which affect the credit availability and pricing of real estate projects Hence the methodology adopted by the DGAP was not in coherence with the term 'commensurate reduction' and was required to be set aside on this ground alone. Given this, the amount profiteered, if at all, was required to be recomputed after considering the factors discussed above. E. Concept of GST being an Indirect Tax was an economic concept. A supplier could not be mandated/ dictated through a taxing Statute to reduce price to the same extent as benefit of input tax credit. i. That the entire concept of passing on the benefit/ burden of tax to the customer was not envisaged through a tax law. The levy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii. That the DGAP vide Report dated 26.06.2020 sought to make it imperative and mandatory that exact calculation of the reduction in rate of tax was required to be passed-on to the consumer. This finding and interpretation by the DGAP to the Anti-Profiteering provision was unconstitutional and against the basic tenet of taxation itself iii. That if the exercise was only a mathematical calculation then the legislature was required to state as such. There was also no requirement for the legislature to prescribe Rule 126 of the CGST Rules. It was settled law that the legislation was required to be read in entirety and no part of it could be made otiose or redundant. Reliance was placed on the decision of Hon'ble Supreme Court in the case of Voltas Limited vs. State of Gujarat 2015 VIL 23 (SC). Thus, the methodology followed by the DGAP was required to be set aside being in violation of the legislative framework and matter was required to be remanded to the DGAP for fresh consideration in accordance with law. iv That in addition to the above, neither the CGST Act nor the CGST Rules provide any time frame within which commensurate reduction in prices was to be passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eduction in prices. (2) All applications from interested parties on issues of local nature or those forwarded by the Standing Committee shall first be examined by the State level Screening Committee and the Screening Committee shall, within two months from the date of receipt of a written application, or within such extended period not exceeding a further period of one month for reasons to be recorded in writing as may be allowed by the Authority, upon being satisfied that the supplier has contravened the provisions of section 171, forward the application with its recommendations to the Standing Committee for further action. A bare perusal of the above extracted rule reflected that for initiation of anti- profiteering proceedings. the first step was examination of application made by an interested party. Hence, the entire proceedings were based on the complaint and evidence supporting the complaint When the complaint itself stood withdrawn, there was no question of initiation of proceedings against the Respondent. ii. That it was only when there was prima face evidence to support the claim of the Applicant/ Complainant. that the Standing Committee referred the matter to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of Hon ble Gujarat High Court in the case of Gujarat Paraffins Pvt. Ltd. vs. UOI 2012 (282) ELT 33 wherein it was held that if the foundation is removed, the superstructure falls meaning thereby that if the initial action was not in consonance with law, the subsequent proceedings would not validate it. Given this, no proceedings could lie when the basis on which they had been launched did not exist iii. That section 171 of the CGST Act is qua a recipient of goods/ services (the Complainant in the present case) When the recipient himself has withdrawn his complaint, the entire investigation becomes void-ab-initio Consequent to the above, the present proceedings are required to be set aside on this ground itself. G. Report Issued by the DGAP not in accordance with law i. That the report issued by the DGAP was incorrect in law as it has failed to consider the fact that the complaint/ application itself stood withdrawn. It was submitted that the Respondent duly informed the DGAP at the first instance itself that the Applicant No. 1 had withdrawn the complaint, That the Respondent vide letter dated 29.10.2019 had duly informed that the Applicant No 1 had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, need to be passed on to the end consumers who bear the burden of tax. Everybody was absolutely free to exercise his right to practice any profession, or to carry on any occupation trade or business, as per the provisions of Article 19 of the Constitution. He could also fix his prices and profit margins in respect of the supplies made by him. The intent of the Section 171 was the welfare of the consumers who were voiceless, unorganized and vulnerable. It was also submitted that there was no violation of Article 14 of the Indian Constitution as alleged by the Respondent as to remove any arbitrariness, this Authority in exercise of power delegated to it under the Rule 126 had notified the Methodology and Procedure vide Notification dated 28.03.2018 which was also available on its website for necessary guidance of the trade. B. Rule 126 of the CGST Rules was in violation of Section 171 itself. That the Methodology and Procedure had been prescribed under Section 171 (1) itself. The word commensurate mentioned in the above Section gave the extent of benefit to be passed on by way of reduction in the prices which had to be computed in respect of each product based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxing Statute to reduce price to the same extent as benefit of input tax credit. That in Section 171, it was clearly mentioned that any reduction in rate of tax on any supply of goods or services or the benefit of input tax credit should be passed on to the recipient by way of commensurate reduction in prices. Therefore. whole exercise of investigation was undertaken in compliance to the above Act. The case laws quoted by the Respondent did not pertain to Anti-profiteering and clearly not applicable in the present matter. F. The investigation was void-ab-initio and consequently the present proceedings were incorrect in law. That Section 171 of the Act, which governed the Authority, nowhere said that the cause of action lay only in case of a written complaint. This Authority had been given ample powers under Sub Section 2 of section 171 to independently examine whether the benefits had been passed on by the supplier or not. There was no provision of withdrawal of an application in the Act. All the applications received were required to be examined by the Standing Committee/Screening Committee to find out the corrections. Thus, if the Standing Committee was convin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed- a. The Authority had been empowered to determine/expand the procedure and methodology in detail as per Rule 126 of CGST law with view to uphold the Legislative intent. b. The Respondent's claim that accurate benefit could be arrived after completion of the project was not sustainable since the period of dispute was old c. Interests of the consumers should be protected by ensuring that both the benefits of tax reduction and ITC which were sacrificed by Government need to be passed on to the end consumer. d. Profiteering should be investigated irrespective of any complaint or not complaint. e. The law encapsulated all the supplies made by the registered person to all his recipients wherein benefit of ITC need to be extended. G. That he requested this Authority to investigate the returns of the Respondent as far as GST was concerned and ITC availed so that both Government and end consumers did not suffer loss while Companies profiteered H. The Respondent had applied all Laws/Acts/provisions for extracting money from customers but failed to adhere to the same when discharging his obligations towards customers. The Real Estate companies were ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .012021, the Applicant No. 1 could not have agitated the matter again. The Applicant No. 1 could not be permitted to blow hot and cold as deemed fit at his end. Further, the contentions put forth by the Applicant No. 1 related to consumer concerns. The redressal forum of consumer concerns was RERA or some other forum. That the Applicant No. 1 did not argue on any point related to profiteering. Therefore, submissions of the Applicant No. 1, during the course of the hearing before this Authority. were non-est in law. E. That the matter was required to be remanded back to the DGAP as the computation arrived by the DGAP was erroneous and based on incorrect assumptions and presumptions, for the following reasons: i. The methodology adopted by the DGAP for determining the profiteering amount as difference in ratio of ITC/turnover in pre GST regime and post GST regime' was devoid of any logic. DGAP should compute the excess tax benefit accrued on basis of the Cost' and not on the basis of the revenue of the builder/developers. ii. There was change in cost of materials which resulted in change in actual cost of the project vis-a-vis budgeted cost of the proje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions in which he reiterated his earlier submissions dated 24.12.2020. 12. Copy of the submissions dated 09.02.2021 and 15.02.2021 filed by the Respondent were supplied to the DGAP for supplementary Report under Rule 133 (2A) of the CGST Rules, 2017. The DGAP filed his clarifications dated 25.02.2021 as under:- a That the Respondent challenged computation of profiteering done by the DGAP and alleged that it was erroneous and based on incorrect assumptions and presumptions The DGAP refuted the allegations of the Respondent on the following grounds. i. The Respondent challenged methodology adopted by the DGAP for determining the profiteering amount, which was not tenable. The Respondent suggested that the DGAP should compute the excess tax benefit accrued on the basis of the cost and not on the basis of the 'revenue' of the builder/developer. In this regard it was submitted that the DGAP had computed the profiteering amount by adopting methodology prescribed by this Authority The same methodology had been adopted in all similar matters and this Authority uphold the same in all its Orders. Therefore, the Respondent claim was not sustainable. ii. The Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rates had been passed by him or not. Since, the Section doesn't mention about any particular recipient it implied that all the supplies made by a registered person to all his recipients need to be examined from the perspective of passing on the benefits to each buyer. Therefore, all the supplies were required to be investigated because there is a single GST return for all the supplies made by a particular registered person, and there was also a single credit entry in the ITC ledger of the registered person. It was not possible to earmark a portion of the total ITC to a particular product/ SKIS being supplied by a registered person, which could be done only after all the supplies were investigated. 13. Copy of the submissions dated 24.12.2020 filed by the Applicant No 1 was supplied to the DGAP for supplementary Report under Rule 133(2A) of the CGST Rules. 2017 The DGAP filed his clarifications dated 11.03.2021 on the Applicant No. 1's submissions wherein the DGAP has clarified- a. That the Applicant No 1 in the pares 7 (A-E) above. had informed that the Respondent had not given him the benefit of ITC despite delay of 2 years and the Respondent was also trying to av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, which may affect this deal shall also be fully recovered by the Promoter from the Purchaser. Thus. price of the apartment was exclusive of Indirect Taxes. The Indirect taxes or any other Statutory levies are to be fully recovered by the Respondent from the Purchasers/Buyers. The project was still continuing (i.e. the service was still being provided by the Respondent), payment terms were mile-stone in nature and input tax credit benefit (if at all) could only be determined at the end of the project. It is for this reason that the Respondent has been taking a consistent stand that if there was any benefit due to input tax credit then the same could only be computed and passed-on to the Purchasers at the end of the Project (i.e. at the time of culmination of the service). Hence, the present proceedings were pre-mature. b. When was the agreement to sell signed with 545 home buyers? Provide details of entering into the agreement to sell with each of the home buyers? Reply : The Agreement for Sale' was signed by 449 home buyers on different dates. Further, bookings were made on different dates with 96 home buyers wherein Agreement for Sale is pending execution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed on to the general public as per the provisions of Section 171 read with Rule 127 and 133 of the CGST Rules. 2017. The anti-profiteering related Rules and Section 171 of the Act have express approval of the Parliament, all the State Legislatures, the Central and all the State Governments and the GST Council and therefore, Section 171 and the Rules are constitutional and are not violative of Article 14 and 19 (1) (g) of the Constitution. This Authority has nowhere interfered with the business decisions of the Respondent and therefore, there is no violation of Article 14 and 19 (1) (g) of the Constitution. The Respondent has also cited the judgement of the Hon ble Supreme Court passed in case of Commissioner, Central Excise Customs, Kerala vs. Larsen Toubro Limited 2016 (1) SCC 170, CIT vs. B.C. Srinivasa Setty 1981 (2) SCC 460, K. Damodarswamy Naidu Bros and others vs. State of T.N. 2000 (1) SCC 521 and Govind Saran Ganga Saran vs. CST 2985 (Supp.) SCC 205 and stated that in the absence of a machinery provision for assessment of tax, the levy itself failed and is liable to be struck down as unconstitutional. On this aspect it is to be noted that no tax has been imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers conferred under Rule 126 of the CGST Rules, 2017 has notified the methodology and procedure for determination as to whether the reduction in the rate of tax on supply of goods or services or the benefit of input tax credit has been passed on by the registered person to the recipient by way of commensurate reduction in prices. Under the provisions of Section 171 of the Act, ibid, this Authority has only been authorized to ensure that the benefit of tax reduction which is nothing but sacrifice of tax revenue made by the Government is passed on to the consumers who actually bear the impact of the tax and not pocketed by the Respondent. The intent of this provision is the welfare of the consumers who are voiceless, unorganized and vulnerable. This Authority is charged with the responsibility of ensuring that the benefit is passed on to consumers in line with the provisions of Section 171 read with Rule 127 and 133 of the CGST Rules, 2017 This Authority has in no manner interfered with the business choices made by the Respondent Hence the judgment of the Hon ble Supreme Court passed in the case of lndraprastha Gas Ltd. vs. Petroleum and Natural Gas Regulatory Board Ors. 2015 (9) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking ITCs to turnovers ratios in the pre-GST post-GST periods into account which is correct, reasonable and logical and in accordance with the mandate of Section 171 of the Act. The Respondent has also averred that in the pre-GST regime, input services were subject to Service Tax @15%; however, the most input services were taxable @18% in the post-GST regime. Therefore, there was an increase of 3% in ITC available to the Respondent which was not due to any additional benefit due to increase in the rate of tax This credit was available to the Respondent even before GST and hence, the Respondent could not be asked to transfer this additional credit to the customers. In this context, it is to state that the change in rate of tax in Service Tax from 15% to 18% is an additional benefit which has accrued to the Respondent in the post-GST period which is required to be passed on to the flat buyers. The Respondent cannot be allowed to appropriate it illegally as it has been given from the public exchequer The Respondent has not paid even a single penny from his account and therefore, he cannot claim not passing on the benefit of additional ITC to the buyers as he has used the same in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 128 of the CGST rules, 2017 reflects that for initiation of anti-profiteering proceedings. the first step is the examination of application made by an interested party. Hence, the entire proceedings are based on the complaint and evidence supporting the complaint. It is claimed by the Respondent that when the complaint itself stood withdrawn, there is no question of initiation of proceedings against him. It is also claimed by the Respondent that the DGAP has failed to inform interested parties about the withdrawal of complaint in the Notice required to be issued to interested parties before initiation of investigation Thus. the Report issued by the DGAP is not in accordance with the due process of law. In this regard, the Authority finds that there is no provision envisaged under the CGST Act, 2017 or the Rules there under to drop verification/Investigation of profiteering once the Complainant/Applicant withdraws his complaint. Section 171 of the Act, which governs this Authority, nowhere says that the cause of action lies only in case of a written complaint. This Authority has been given ample powers under sub section 2 of section 171 to independently examine whether the benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that, post-GST, the Respondent has been benefited from additional ITC to the tune of 8.18% [11.74% (-) 3.56%] of his turnover for the said project and the same was required to be passed on to the customers/flat buyers/recipients. The DGAP has calculated the amount of ITC benefit to be passed on to all the flat buyers as Rs. 6.46,06,227/- for the project Sierra-Vizag , the details of which are mentioned in Table-D. 24. In view of the above discussions, the Authority finds that the Respondent has profiteered by an amount of Rs. 6,46,06,227/- for the Project Sierra-Virag during the period of investigation i.e. 01.07.2017 to 31.03.2019, The above amount that has been profiteered by the Respondent from his home buyers in the above said Project shall be refunded by him, along with interest @18% thereon, from the date when the above amount was profiteered by him did the date of such payment, in accordance with the provisions of Rule 133 (3) (b) of the CGST Rules, 2017. 25. The Authority finds no reason to differ from the above-detailed computation of profiteering in the DGAP's Report or the methodology adopted and hence, the Authority determines the profiteered amount for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y also be published in minimum of two local Newspapers/vernacular press in Hindi/English/local language with the details i e Name of builder (Respondent) M/s. India bulls Real Estate Ltd. (registered as M/s Airmid Real Estate Ltd.), Project- Sierra-Vizag , Location- Vizag, Andhra Pradesh and amount of profiteering i.e. Rs. 6,46,06,227/- so that the concerned homebuyers can claim the benefit of ITC if not passed on. Homebuyers may also be informed that the detailed NAA Order is available on Authority's website www.naa.gov.in. Contact details of concerned Jurisdictional CGST/SGST Commissioner may also be advertised through the said advertisement. 31. The concerned jurisdictional CGST/SGST Commissioner shall also submit a Report regarding compliance of this Order to this Authority and the DGAP within a period of 4 months from the date of receipt of this Order. 32. Further, the Hon'ble Supreme Court, vide its Order dated 23.03.2020 in Suo Moto Writ Petition (C) no 3/2020, while taking suo-moto cognizance of the situation arising on account of Covid-19 pandemic, has extended the period of limitation prescribed under general law of limitation or any other special laws (bo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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