Sh. Vasantbhai Bhikabhai Patel Vs M/s Shree Infra (National Anti-Profiteering Authority)
We have carefully considered the Report of the DGAP, the submissions of the Respondent and all the documents placed on record. From the perusal of the DGAP’s Report it is revealed that the ratio of ITC to the taxable turnover during the pre-GST period was to the extent of 2.37% as compared to post-GST period of 2.65% thus, there was net benefit of 0.28% of ITC to the Respondent. Based on this net benefit and the amounts collected from the home buyers during the post GST period, an amount of Rs. 2,13,468/- has been computed as the profiteered amount as per Annexure-13 of the DGAP report. The Respondent has raised no objection against the computation of the above amount made by the DGAP vide Annexure-13 and hence it can be relied upon.
In view of the above facts 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 commensurate with the benefit of ITC received by them as has been detailed above. Since the present investigation is only up to 31.10.2018 any benefit of ITC which accrues subsequently shall also be passed on to the buyers by the Respondents. In case this benefit is not passed on the above Applicant or any other buyer, he shall be at liberty to approach the State Screening Committee Gujarat for initiating fresh proceedings under Section 171 of the above Act against the Respondent. The concerned CGST or SGST Commissioner shall take necessary action to ensure that the benefit of additional ITC is passed on to the eligible house buyers in future.
On perusal of the DGAP Report dated 24.04.2019 and the annexures attached with it, it has been observed that the RERA Registration Certificate of the Project provided by the Respondent to the DGAP as well as to this Authority mentions “River View Heights (Phase-II)”, from which it can be inferred that the investigation has been only restricted to Phase —II of the project ignoring the other phases. We have also observed that the documents related to the total area of the project provided by the Respondent to the DGAP do not match with the Gujarat RERA website www.gujrera.gujarat.gov.in. Keeping in view the facts that the subject investigation covers only Phase II of the project as per the nomenclature of the project given by the Respondent himself and that the Respondent has himself admitted that he was liable to pass on the benefit of Additional ITC as per provisions of Section 171 of the CGST Act, 2017, therefore, there are sufficient reasons to believe that there might be some phases of the whole project “River View Heights”, which have not been investigated. Accordingly, the DGAP is directed to investigate the issue of passing on the benefit of additional ITC in respect of the whole project and submit his Report in terms of Rule 133 (5) of the CGST Rules, 2017.
The Authority as per Rule 136 of the CGST Rules 2017 directs the Commissioners of CGST/SGST Gujarat to monitor this order under the supervision of the DGAP by ensuring that the amount profiteered by the Respondent as ordered by the Authority is passed on to all the eligible buyers. A report in compliance of this order shall be submitted to this Authority by the Commissioners CGST /SGST within a period of 4 months through the DGAP from the date of receipt of this order.
FULL TEXT OF ORDER OF NATIONAL ANTI-PROFITEERING APPELLATE AUTHORITY
1. The brief facts of the case are that under Rule 128 of the Central Goods and Services Tax (CGST) Rules, 2017, an application was filed by the Applicant No. 1 against the Respondent before the Gujarat State Screening Committee on Anti-profiteering. The above Applicant had alleged that the Respondent had not passed on the benefit of input tax credit by way of commensurate reduction in price in respect of purchase of two flats bearing Nos. H/1/702 and H/1/802 in the Respondent’s project “River View Heights”.
2. The Gujarat State Screening Committee forwarded the said application to the Standing Committee on Anti-profiteering for further action which was examined by the Standing Committee on Anti-Profiteering, in its meeting held on 08.10.2018, whereby it was decided to forward the same to the DGAP, to conduct a detailed investigation in the matter.
3. The DGAP after completing the investigation has submitted his report under Rule 129 (6) of CGST Rules, 2017 on 24.04.2019 pertaining to the period w.e.f. 01.07.2017 to 31.10.2018.
4. The DGAP has stated that a notice under Rule 129 of the CGST Rules, 2017 was issued on 02.11.2018, calling upon the Respondent to reply as to whether he admitted that the benefit of ITC had not been passed on to the above Applicant 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 along with all supporting documents. The Respondent was also given an opportunity to inspect the non-confidential evidences/information furnished by the above Applicant which was not availed by him.
5. The DGAP in his Report has stated that the Respondent submitted that the flats booked by the above Applicant were still under construction and Occupancy Certificate of the said project was yet to be received by him from the competent authority and as the project was not completed, the Respondent was not able to exactly quantify the total amount of benefit of input tax credit which was to be passed on to the above Applicant, and thus, submission of the above Applicant that the project was completed in March 2018 was factually wrong. In support of this fact, the Respondent also submitted RERA registration certificate. The Respondent has also stated to the DGAP that the above Applicant had paid the total consideration for both the units post-GST and not in the pre-GST era.
6. The DGAP on completion of his investigation has stated that the Respondent has submitted copies of the two sale agreements dated 15.03.2018, for the sale of flat nos. H/1/702 and H/1/802, to the above Applicant in his project “River View Heights”, each measuring 228.09 square meters, at the basic sale prices of Rs. 25713/- per square meter. The details of amounts and taxes paid by the above Applicant to the Respondent are furnished in the table given below:-
Table(Amount in Rs.)
