Amarjeet Singh Yadav Vs Radicon Infrastructure & Housing Private Limited (National Anti-Profiteering Authority)
National Anti-Profiteering Authority hereby determines the profiteered amount as Rs. 40,92,054/- in terms of Rule 133 (1) of the CGST Rules, 2017 and directs the Respondent to pass on the benefit of Rs. 6,982/- [21,496 – 14,514] to the Applicant No. 1 and an amount of Rs. 40,70,558/- to the other buyers as per the details given in Annexure-18 of the DGAP’s Report dated 05.12.2018 along with interest @18% per annum to the flat buyers from the dates from which the above amount was collected by him from the buyers till the payment is made as per the provisions of Rule 133 (3) (b) of the above Rules. The Respondent is also directed to reduce the prices of his flats commensurately as per the details mentioned above in terms of Rule 133 (3) (a) of the above Rules.
It is also clear from the facts of the case that the Respondent has been directed to pass on the benefit of ITC till 31.08.2018. Any benefit of ITC which may become available to the Respondent post 08.2018 would also be passed on by the Respondent to the eligible buyers. The Concerned Commissioner GST shall ensure that the above benefit is passed on to the eligible buyers and report submitted to this Authority.
It is also evident from the above narration of facts that the Respondent has denied the benefit of ITC to the buyers of the flats being constructed by him in his Project `Vedantam’ in contravention of the provisions of Section 171 (1) of the CGST Act, 2017. Therefore, he is apparently liable for imposition of penalty as per the provisions of Section 171 (3A) read with Rule 133 (3) (d) of the CGST Act, 2017. Therefore, notice be issued to him to explain why penalty should not be imposed on him. Accordingly, the notice dated 11.12.2018 whereby the Respondent was asked to explain why penalty should not be imposed on him under Section 29, 122-127 of the CGST Act, 2017 read with Rule 21 and 133 of the CGST Rules, 2017 should not be imposed, is partially withdrawn to that extent.
FULL TEXT OF ORDER OF NATIONAL ANTI-PROFITEERING APPELLATE AUTHORITY
1. A Report dated 05.12.2018, was received from the Applicant No. 2 i.e. the Director General of Anti-Profiteering (DGAP), under Rule 129 (6) of the Central Goods & Services Tax (CGST) Rules, 2017 in which it was stated that an application dated 26.12.2017 was filed before the Uttar Pradesh State Screening Committee on Anti-Profiteering by the Applicant No. 1, alleging profiteering by the Respondent in respect of purchase of a flat in the Respondent’s project “Vedantam”, located at Plot No. 1-B, Sector-16, Greater Noida, U.P. The above Applicant had alleged that the Respondent had not passed on the benefit of Input Tax Credit (ITC) which had accrued to him, by commensurate reduction in the price of the flat, after implementation of GST w.e.f. 01.07.2017 and charged Goods & Services Tax (GST) on the full amount of instalments.
2. This application was considered by the above Screening Committee in its meeting held on 12.04.2018 and it was found by it that the Respondent had availed ITC from July 2017 to January 2018 as per his GSTR-3B Returns and had not paid his output tax liability by cash due to availability of sufficient ITC and hence the above Applicant had rightly claimed that he was entitled to the benefit of ITC and since the Respondent had failed to pass on this benefit he had contravened the provisions of Section 171 of the CGST Act, 2017. The above complaint was forwarded by the Screening Committee to the Standing Committee on Anti-profiteering on 16.04.2018 with its recommendations for initiating action against the Respondent.
3. The above application was considered by the Standing Committee on Anti-profiteering in its meeting held on 25.05.2018 and was recommended to the DGAP for detailed investigation under Rule 129 (1) of the CGST Rules, 2017.
4. The DGAP on receipt of the above reference had issued notice to the Respondent under Rule 129 (3) of the above Rules to submit reply as to whether the ITC benefit was passed on by him to his recipients and if not to suo-moto determine the quantum of benefit which was not passed on and intimate the same to him. The Respondent was also given opportunity to inspect the evidence produced by the above Applicant on 03.12.2018 but he did not avail the same. The Applicant No. 1 vide his email dated 13.07.2018 intimated the DGAP that the Respondent had agreed to provide him the benefit of ITC and adjust the same in his next instalment and hence the present proceedings should be stayed.
5. The present investigation has been conducted by the DGAP for the period w.e.f. 01.07.2017 to 31.08.2018 and the period for completing the investigation was extended by this Authority up to 07.12.2018 vide its order dated 28.08.2018 under Rule 129 (6) of the above
6. The DGAP has intimated that the Respondent had failed to provide the required information even after repeated requests and hence summons under Section 70 of the CGST Act, 2017 read with Rule 129 of the above Rules were issued against him however the Respondent had not put in an appearance nor supplied the required Ultimately, vide his email dated 05.11.2018 he had supplied partial information and was again summoned to furnish the necessary record which was supplied by him vide his email dated 19.11.2018.
7. The Respondent had submitted replies vide his letters dated 10.07.2018, 12.07.2018, 01.08.2018, 09.08.2018, 15.10.2018, 05.11.2018, 19.11.2018 and 29.11.2018 and stated that he had not tried to avoid payment of GST or passing on the benefit of ITC and that he was following the prescribed method of accounting and the benefit of ITC had already been passed on to the Applicant No. 1 and he had been accordingly informed him by email dated 05.02.2018. However, due to wrongly typed address the above email had not been received by the above Applicant due to which the present complaint had been lodged by him. The Respondent had also claimed that he had passed 4% benefit of ITC amounting to Rs. 14,514/- (4% of base price collected on 20.12.2017) to the above Applicant and he was informed vide letter dated 07.07.2018 which was acknowledged by the above Applicant vide his email dated 09.07.2018 and hence the present notice should be withdrawn.
8. The Respondent had also submitted the following documents along with his replies to the DGAP:-
a) Copies of GSTR-1 Returns from July, 2017 to August, 2018.
b) Copies of GSTR-3B Returns from July, 2017 to August, 2018.
c) Copies of Tran-1 Statements.
d) Copies of VAT & ST-3 Returns from April, 2016 to June, 2017.
e) Electronic Credit Ledger from July, 2017 to August, 2018.
f) Copies of all demand letters, receipts and sale agreement/contract and construction agreement dated 02.04.2012 in the name of the Applicant No. 1 Shri Amarjeet Singh Yaday.
g) Tax rates- pre-GST and post-GST.
h) Copy of Balance Sheet for FY 2016-17.
i) Copy of Cost Audit Report for FY 2016-17.
j) Copies of documents submitted to RERA.
k) Details of taxable turnover and ITC of the project “Vedantam”.
l) List of home buyers in the project “Vedantam”.
9. The DGAP in his Report has submitted that as per the copies of the demand letters and the payment schedule supplied by the Respondent for the purchase of a flat measuring 1495 square feet at the basic sale price of Rs. 2427/- per square feet, the details of the amount and the taxes paid by the above Applicant to the Respondent were as has been given below in the Table ‘A:-
Table-‘A’
(Amount in Rs.)
