Shri. Pradeep Kumar Vs Fusion Buildtech Pvt. Ltd. (National Anti-Profiteering Authority)
The Respondent’s further contention that he had already offered more than 10% discount in basic prices to all the customers who have booked flats Post GST and the discount had been given mainly on account of availability of ITC, thus the allegation that he had failed to give the necessary discount was absolutely incorrect. However the discount offered by the Respondent to the customers cannot be considered as passing on of the benefit of additional ITC as the above discount has been given by the Respondents to set off the prices which he had increased and not on account of the benefit of ITC. It would also be relevant to refer Section (15) (1) of the CGST Act, 2017 which reads as under:-
“The value of a supply of goods or services or both shall be the transaction value, which is the price actually paid or payable for the said supply of goods or services or both where the supplier and the recipient of the supply are not related and the price is the sole consideration for the supply.”
We therefore observe that Section 15 (3) (a) provides that the value of the supply shall not include any discount which is given before or at the time of the supply, even if such discount has been duly recorded in the invoice issued in respect of such supply. Thus, GST is chargeable on actual transaction value after excluding any discount (conditional as well as unconditional) and therefore, for the purpose of computation of profiteering actual transaction value has to be considered for computation of profiteering amount. Further, the discount which was to be given to the customers by the Respondent is purely his business call. Accordingly, the discount of more than 10% in basic prices claimed to have been paid to the house buyers by the Respondent cannot be held as the benefit of ITC and hence, the claims made by the Respondents in this behalf cannot be accepted.
It is established from the perusal of the above facts that the provisions of Section 171 of the CGST Act, 2017 have been contravened by the Respondent as he has profiteered an amount of 4,79,04,342/- which includes GST on the base profiteering amount of Rs. é,27,71,733/- from all the flat buyers. This amount is inclusive of Rs. 2,36,428/- (including GST on the base amount of Rs. 2,11,096/-) which is the profiteered amount in respect of the Applicant No. 1. All these buyers are identifiable as per the documents placed on record and therefore, the Respondent is directed to pass on this amount of Rs. 4,79,04,342/- along with interest @18% per annum to these flat buyers from the dates from which the above amount was collected by him from these buyers till the payment is made, within a period of 3 months from the date of passing of this order.
In view of the above facts, this Authority under Rule 133 (3) (a) of the CGST Rules, 2017 orders that the Respondent shall reduoe the prices to be realized from the buyers of the flats commensurate with the benefit of ITC received by him as has been detailed Since the present investigation is only up to 30.09.2018 any benefit of ITC which accrues subsequently shall also be passed on to the buyers by the Respondent.
FULL TEXT OF ORDER OF NATIONAL ANTI-PROFITEERING AUTHORITY
1. The present Report dated 02.04.2019 and subsequent Reports dated 30.05.2019 & 06.2019 have been received from the Applicant No. 2 ‘i.e. The Director General of Anti-Profiteering (DGAP) after detailed investigation under Rule 129 (6) of the Central Goods & Service Tax (CGST) Rules, 2017. The brief facts of the case are that the Applicant No. 1 had booked a flat in the Respondent’s project “Fusion Homes” situated at off GH-05A, Greater Noida (West), Uttar Pradesh and he alleged that the Respondent had increased the price of the flat after introduction of GST w.e.f. 01.07.2017 and had not passed on the benefit of input tax credit by way of commensurate reduction in the price. The Uttar Pradesh State Screening Committee on Anti- profiteering on prima facie having satisfied itself that the Respondent had not passed on the appropriate benefit of input tax credit to the above Applicant as the input tax credit available to Respondent was to be apportioned against the instalments towards the price of the flat forwarded the said application with its recommendation, to the action, in terms of Rule 128 of the above Rules.
2. The above reference was examined by the Standing Committee on Anti-profiteering and vide its minutes dated 06.09.2018 it had forwarded the same to the DGAP for detailed investigation. The application was forwarded to the DGAP along with the payment details as is given in the Table below:-
Table
(Amount in Rs.)
