Case Law Details
Anonymous Vs Aryan Hometec Pvt. Ltd. (NAA)
It is revealed from the plain reading of Section 171 (1) that it deals with two situations one relating to the passing on the benefit of reduction in the rate of tax and the second pertaining to the passing on the benefit of the ITC. On the issue of reduction in the tax rate, it is apparent from the DGAP’s Report that there has been no reduction in the rate of tax in the post GST period; hence the only issue to be examined is as to whether there was any additional benefit of ITC with the introduction of GST availed by the Respondent or not. On this issue it has been revealed from the DGAP’s Report that no ITC has been availed by the Respondent in the post-GST period and therefore, there was no additional benefit of ITC which had accrued to the Respondent post-GST as compared to pre-GST period.
It is also revealed from the above Report that the project under investigation was started in the year 2012 and most of the work had been completed in 2014, however, the project was completed in March, 2018 and the OC was obtained on 11.04.2018. Further, the Respondent had not paid his Service Tax liability in the pre-GST period and had also defaulted in the payment of GST and filing of GST Returns. The DGAP has also claimed that on scrutiny of the Service Tax and GST Returns submitted by the Respondent, it was observed that the Respondent had not availed any CENVAT credit of the input services during the period from 01.04.2016 to 30.06.2017 and had also not availed any ITC in the post-GST period from 01.07 2017 to 30.04.2019 in respect of the above project. The State GST Authorities had also cancelled the GST registration of the Respondent on 31.08.2018 as he had not filed the GSTR-3B Returns from September 2018 onwards and GSTR-1 Returns from January 2019 onwards. Based on the above facts it can be concluded that this case does not fall under the ambit of Anti-Profiteering provisions of Section 171 of the CGST Act. 2017 as the Respondent had not availed benefit of additional ITC in the post-GST regime. Hence, the allegation of not passing on the benefit of ITC is not established against the Respondent. Therefore, the Respondent is not liable to pass on the benefit of ITC to the Applicant No. 1 and the other recipients. Accordingly, the provisions of Section 171 (1) of the CGST Act, 2017 have not been contravened in the present case.
FULL TEXT OF ORDER OF NATIONAL ANTI-PROFITEERING APPELLATE AUTHORITY
1. The present Report dated 31.01.2020 has been received from the Applicant No. 2 i.e. the Director General of Anti-Profiteering (DGAP) after a 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, who has sought anonymity, had filed an application under Rule 128 (1) of the CGST Rules, 2017 against the Respondent alleging profiteering in respect of construction service supplied by him. The Applicant No. 1 had stated that he had purchased a flat in the Respondent’s project “Aryan Founttain Square”, Attiblele-Surajpura Road. Bengaluru and had alleged that the Respondent had included VAT and Service Tax in the MRP of the flat at the time of booking and demanded 12% GST on the pending amount which had resulted in double taxation, whereas the Respondent was actually required to pass on the benefit of ITC for the construction done after the GST implementation which he had not passed on.
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