TMI Blog2022 (8) TMI 1086X X X X Extracts X X X X X X X X Extracts X X X X ..... d project Epic and for said period 01.07.2017 to 30.11.2020. This Order having been passed today falls within the limitation prescribed under Rule 133(1) of the CGST Rules, 2017. - Case No. 55/2022 - - - Dated:- 5-8-2022 - Sh. Amand Shah, Chairman, Sh. Pramod Kumar Singh, Technical Member And Sh. Hitesh Shah, Technical Member None for the Applicant. None for the Respondent. ORDER 1. This Authority vide its Final Order No. 85/2020 dated 11.12.2020 for the Respondent s project Mercado directed to pass on an amount of Rs.2,44,80,835/- to the Applicant (Sh. Mool Chand Mittal) and other 228 commercial shop buyers along with the interest 18% per annum. 2. As the Respondent himself admitted that he had been constructions one more project namely Epic , therefore, the Authority vide the said Order No. 85/2020 dated 11.12.2020, taking suo moto cognizance, directed the DGAP to also investigate the project Epic being executed by the Respondent and submit his Report under Rule 129 (6) stating whether the Respondent is liable to pass on the benefit of ITC to the buyers of the above project and their entitlement thereof. The excerpt of the said Order is reprodu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules was issued by the DGAP on 01.01.2021, calling upon the Respondent to reply as to whether he admitted that the benefit of ITC had not been passed on to the buyers by way of commensurate reduction in price and if so, to suo moto determine the quantum thereof and indicate the same in his reply to the Notice as well as to furnish all the supporting documents. b. The period covered by the current investigation was from 01.07.2017 to 30.11.2020. c. The statutory time limit to complete the current investigation we on or before 22.06.2021 in terms of Rule 129(6) of the Rules. d. In response to the Notice dated 01.01.2021 and subsequent reminders, the Respondent replied vide letters dated 02.03.2021 and 08.03.2021. The Respondent placed the following facts to establish that he was not covered under the provisions of Section 171 of CGST Act, 2017 and the replies of the Respondent have been summed up as follows:- (i) The provisions related to Anti-Profiteering measure are contained in section 171 of the CGST Act, 2017. Relevant extract is reproduced below:- 171 (1) Any reduction in rate of tax on any supply of goods or services or the benefit of input tax credit shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coming in to force of the GST as the Respondent would have been eligible to avail ITC on the purchase of goods and services after 01.07.2017 on which he was not entitled to do so before the above date. Since there was no basis for comparison of ITC available before and after 01.07.2017, the Respondent was not required to recalibrate the price of the flat due to additional benefit of ITC. Hence, the allegations of the Applicant made in this behalf are incorrect and therefore, the same cannot be accepted. . (iii) The project EPIC was launched in post-GST period. Haryana Real Estate Regulatory authority (RERA), Gurugram has granted Registration Certificate on 06.12.2018. Also, first supply for the construction of the project was received on December 18, 2018. (iv) Notification No. 03/2019-Central Tax (rate) dated 29.03.2019 is applicable on Residential Real Estate Project (RREP) whereas the project EPIC is a commercial project. Hence the same eras not applicable to him and there was no change in rate of tax w.e.f. 01.04.2019 and that he was charging GST @12% on Construction Services provided to prospective buyers. (v) The Respondent had not availed CENVAT/ITC, relate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.10.2018 Approval for Building Plans Issued by District Town Planner. 3. 16.11.2018 First work order for Road Work to contractor M/s. Sana Builtech Pvt. Ltd. 4. 26.11.2018 First invoice raised by the Contractor to the Respondent 5. 06.12.2018 Issuance of registration certificate by the Haryana Real Estate Regulatory Authority 6. 09.12.2018 First application for allotment of unit. 7. 28.12.2018 First Builder-Buyer Agreement entered b/w Respondent and the Shop buyer (Mr. Upendra Arora Ms. Jyoti Arora) for the Unit No. KIOSK 50 From the above table A , it could be construed that all the events took place in GST regime. On scrutinizing the documents submitted by the Respondent it was observed that, the project got RERA registration No. 30 dated 06-12-2018, for a period commencing from 06.12.2018 to 31.12.2023. Also RERA registration mentioned that, 4 acres of license No. 148 of 2005 issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of commensurate reduction in prices , was not applicable against Elan Limited in the present case as all the events like launch of project, bookings and allotment of the units happened in the post GST era. m. In these proceedings, any reference to CGST Act, 2017 and CGST Rules, 2017 should also include a reference to the corresponding provisions under the relevant SGST/ UTGST/ IGST Acts and Rules. 4. The Authority had a meeting on 28.06.2022 to discuss the Report dated 24.03.2021 of the DGAP and found that since no profiteering amount has worked out/calculated by the DGAP for the reasons mentioned at (g) to (1) of para 3 above, the Authority has decided not to offer any personal hearing in the matter since there was no Applicant in these proceedings (as the investigation was done on the directions of the Authority). 5. The Authority has carefully examined the. Report of the DGAP and it has been observed that as per the Table A of the Report all the relevant events for the project Epic took place in GST regime and the Respondent had not availed any CENVAT/ITC, related to EPIC project, in pre-GST regime and that the Respondent neither raised any demand nor recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2022 Date of Institution : 27.11.2020 Date of Order : 27.07.2022 In the matter of: Director General of Anti-Profiteering, CBIC, 2 nd Floor, Bhai vir Singh Sahitya Sadan, Bhai Vir Singh Marg, Gole Market, New Delhi-110001. Applicant Versus M/s Elan Ltd., 3 rd Floor, Golf Course View Corporate Tower, Golf Course Road, Sector-42, Gurgaon, Haryana-122002. Respondent Quorum:- 1. Sh. Amend Shah, Technical Member Chairman 2. Sh. Pramod Kumar Singh, Technical Member 3. Sh. Hitesh Shah, Technical Member Present:- 1. None for the Applicant. 2. None for the Respondent. ORDER 1. This Authority vide its Final Order No. 85/2020 dated 11.12.2020 for the Respondent s project Mercado directed to pass on an amount of Rs.2,44,80,835/- to the Applicant (Sh. Mool Chand Mittal) and other 228 commercial shop buyers along with the interest 18% per annum. 2. As the Respondent himself admitted that he had been constructions one more project namely Epic , therefore, the Authority vide the said Order No. 85/2020 dated 11.12.2020, taking suo moto cognizance, directed the DGAP to also investigate the project Epic being executed by the Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to determine whether the benefit of ITC has been passed on by the Respondent to the recipients/ buyers in respect of the Construction Service supplied by the Respondent in the project EPIC , a Notice under Rule 129 of the Rules was issued by the DGAP on 01.01.2021, calling upon the Respondent to reply as to whether he admitted that the benefit of ITC had not been passed on to the buyers by way of commensurate reduction in price and if so, to suo moto determine the quantum thereof and indicate the same in his reply to the Notice as well as to furnish all the supporting documents. b. The period covered by the current investigation was from 01.07.2017 to 30.11.2020. c. The statutory time limit to complete the current investigation we on or before 22.06.2021 in terms of Rule 129(6) of the Rules. d. In response to the Notice dated 01.01.2021 and subsequent reminders, the Respondent replied vide letters dated 02.03.2021 and 08.03.2021. The Respondent placed the following facts to establish that he was not covered under the provisions of Section 171 of CGST Act, 2017 and the replies of the Respondent have been summed up as follows:- (i) The provisions related to Anti-Prof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent and hence he was not required to pass on its benefit to the above Applicant by reducing the price of the flat. The Applicant No. 1 could have availed the above benefit only if the above project was under execution before coming in to force of the GST as the Respondent would have been eligible to avail ITC on the purchase of goods and services after 01.07.2017 on which he was not entitled to do so before the above date. Since there was no basis for comparison of ITC available before and after 01.07.2017, the Respondent was not required to recalibrate the price of the flat due to additional benefit of ITC. Hence, the allegations of the Applicant made in this behalf are incorrect and therefore, the same cannot be accepted. . (iii) The project EPIC was launched in post-GST period. Haryana Real Estate Regulatory authority (RERA), Gurugram has granted Registration Certificate on 06.12.2018. Also, first supply for the construction of the project was received on December 18, 2018. (iv) Notification No. 03/2019-Central Tax (rate) dated 29.03.2019 is applicable on Residential Real Estate Project (RREP) whereas the project EPIC is a commercial project. Hence the same eras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 1. 23.10.2018 Grant of permission for transfer of License to the Respondent by the Director, Town and Country Planning, Haryana 2. 23.10.2018 Approval for Building Plans Issued by District Town Planner. 3. 16.11.2018 First work order for Road Work to contractor M/s. Sana Builtech Pvt. Ltd. 4. 26.11.2018 First invoice raised by the Contractor to the Respondent 5. 06.12.2018 Issuance of registration certificate by the Haryana Real Estate Regulatory Authority 6. 09.12.2018 First application for allotment of unit. 7. 28.12.2018 First Builder-Buyer Agreement entered b/w Respondent and the Shop buyer (Mr. Upendra Arora Ms. Jyoti Arora) for the Unit No. KIOSK 50 From the above table A , it could be construed that all the events took place in GST regime. On scrutinizing the documents submitted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the Respondent and therefore, Section 171(1) of the CGST Act, 2017 requiring that 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 , was not applicable against Elan Limited in the present case as all the events like launch of project, bookings and allotment of the units happened in the post GST era. m. In these proceedings, any reference to CGST Act, 2017 and CGST Rules, 2017 should also include a reference to the corresponding provisions under the relevant SGST/ UTGST/ IGST Acts and Rules. 4. The Authority had a meeting on 28.06.2022 to discuss the Report dated 24.03.2021 of the DGAP and found that since no profiteering amount has worked out/calculated by the DGAP for the reasons mentioned at (g) to (1) of para 3 above, the Authority has decided not to offer any personal hearing in the matter since there was no Applicant in these proceedings (as the investigation was done on the directions of the Authority). 5. The Authority has carefully examined the. Report of the DGAP and it has been observed that as per the Table A of the Report ..... X X X X Extracts X X X X X X X X Extracts X X X X
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