Sh. Suresh Kumar Gupta & ors. Vs Nirala Projects Pvt. Ltd. (National Anti-Profiteering Authority)
Provisions of Section 171 of the CGST Act, 2017 are aimed at ensuring that the recipient gets the commensurate benefit, in the form of reduction of price, in case of any tax rate reduction and/or incremental benefit of ITC (i.e. a sacrifice made by the Govt. from its tax kitty) and the method of interpretation of this provision has been given in the text of Section 171 of the CGST Act, 2017 itself. We observe that the said provision clearly links profiteering to be a function of each supply of goods or services or both and hence, profiteering needs to be computed at the level of each invoice and not at the entity level or any consolidated level. From a complete reading of Section 171 of the Act ibid, it is amply clear that the total quantum of profiteering by an entity/registrant is the sum total of all the benefits that stood denied to each of the recipients/consumers individually. The intent of the words “commensurate reduction” is also clearly explained by the words “by reduction in price”.
Accordingly, the Authority hereby determines the profiteered amount as Rs. 2,88,43,422/- as per the provisions of Rule 133 (1) of the above Rules. The above amount shall be paid by the Respondent to the eligible buyers as per the details given in Annexure-21 of the DGAP’s above Report within a period of 3 months from the date of passing of this order along with interest ©18% per annum from the date from which the above amount was collected by him from the buyers till the payment is made failing which it shall be recovered by the concerned Commissioner CGST/SGST and paid to the concerned eligible buyers. The ITC for the balance period of the project shall also be passed on by the Respondent otherwise the buyers shall be at liberty to approach the State Screening Committee Uttar Pradesh.
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 him as has been detailed above.
FULL TEXT OF THE NATIONAL ANTI-PROFITEERING AUTHORITY
1. The present Report dated 24.04.2019 and subsequent Reports dated 07.06.2019 and 19.06.2019 have been received from the Applicant No. 7 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 “Nirala Greenshire” situated at GH-03, Sector-02, Greater Noida West (Uttar Pradesh) and 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 to him. The Uttar Pradesh State Screening Committee on Anti-profiteering on prima facie having satisfied itself that the Respondent had not passed on the commensurate benefit of input tax credit to the Applicant No. 1, as the input tax credit available to Respondent was to be apportioned against the instalments towards the price of the flat, had forwarded the said application with its recommendation, to the Standing Committee on Anti-profiteering on 28.07.2018 for further action, in terms of Rule 128 (2) of the above Rules.
2. The above references was examined by the the Standing Committee on Anti-profiteering and vide minutes of its meeting dated 08.10.2018 it had forwarded the same to the DGAP for detailed investigation.
3. The Applicant No. 1 had also submitted documents viz. duly filled in form APAF-1, copies of intimation letters & receipts and copies of the demand letters along with his application.
4. The DGAP upon perusal of the application had found that the Applicant No. 1 had booked a flat with the Respondent on 09.09.2013, i.e. in the pre-GST era. The details of the demands made on the Applicant No. 1 on account of the purchase of the flat have been furnished in table “A” below:-
Table-A’
(Amount in Rs.)
