Bhanja Kishore Pradhan Vs. HCBS Promoters & Developers Pvt. Ltd. (NAA)
The Respondent has not disputed the findings of the DGAP regarding method of computation of profiteering and the amount worked out by him. As such, the Authority finds no reason to differ from the above-detailed computation of profiteering in the DGAP’s Report or the methodology adopted and hence, the Authority determines the profiteered amount for the period from 01.07.2017 to 31.12.2018, in the instant case, as Rs. 1,42,45,741/-, for the project ‘Sports Ville’.
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 customers/ home/shop buyers commensurate with the benefit of ITC received by him as has been detailed above.
The Respondent is required to pass on/return such amount profiteered by him along with interest as prescribed under Rule 133(3)(c) of the CGST Rules, 2017, to the eligible customers/ home/shop buyers, including the Applicant No. 1 .
The Respondent has filed his various written submissions vide which he had submitted that he has passed benefit of ITC of Rs. 1,42,56,347/- to his customers/ home/shop buyers. The Respondent has further contended that he did not agree with the Report dated 30.09.2020 as he had adjusted the benefits passed on to the customers and from their dues.
In this regard, the Authority finds that the verification carried out by the DGAP regarding the claim of the Respondent for passing the benefit of ITC to his home/flat buyers is not conclusive as out of the said 62 home buyers as mentioned at para 17, to whom the emails were sent by the DGAP to verify whether the benefit of ITC claimed to have been passed on by the Respondent, 26 home buyers have not replied till date. Further, in response to previous emails of the DGAP to the customers/ home/shop buyers as per its supplementary report dated 11.01.2021, 30 other customers/ home/shop buyers not figuring in this Authority’s list for randomisation, had submitted their responses out of which most of the customers/ home/shop buyers have replied in negative i.e. had claimed that they had not received any amount from the Respondent. The Authority finds that verification by means of email is not conclusive proof of passing of the benefits. The email can be created/generated by any person, which may or may not belong to the home buyer. The Authority finds that the conclusive proof of passing the benefits are only through accounts like credit note, refund of amount as reflected in bank account or reduction in price as reflected in invoice. Since no such evidence has been produced by the Respondent his claim of having passed on the benefit is not tenable and hence it cannot be accepted.
The complete list of eligible customers/ home/shop buyers along with Unit number and the profiteered amount due to be returned/passed on/ refunded to each of them is annexed as Annexure ‘A’ to this Order.
Therefore, the Authority directs the concerned jurisdictional CGST/SGST Commissioner to ensure that such amounts are returned/passed on/ refunded along with interest as prescribed under Rule 133(3)(c) of the CGST Rules, 2017 to each customers/ home/shop buyers by the Respondent, if not already paid. As observed by the Authority, the conclusive proof of passing benefits and its method is discussed in the earlier paragraphs.
The Respondent is also liable to pay interest as applicable on the entire amount profiteered, i.e. Rs. 1,42,45,741/-, for the project ‘Sports Ville’. Hence the Respondent is directed to also pass on interest @18% to the customers/ home/shop buyers on the entire amount profiteered, starting from the date from which the above amount was profiteered till the date of passing on/ return/refund, as prescribed under Rule 133 (3) (b) of the CGST Rules 2017.
We also order that the profiteering amount of Rs. 1,42,45,741/- for the project ‘Sports Ville’ along with the interest @ 18% from the date of receiving of advance from the customers/ home/shop buyers till the date of passing the benefit of ITC shall be paid/passed on by the Respondent within a period of 3 months from the date of this order failing which it shall be recovered as per the provisions of the CGST Act, 2017.
FULL TEXT OF ORDER OF NATIONAL ANTI-PROFITEERING AUTHORITY
1. A Report dated 02.07.2019 had 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 filed an application dated 19.09.2018, before the National Anti-profiteering Authority (Authority) under Rule 128 (1) of the CGST Rules, 2017 alleging profiteering by the Respondent in respect of purchase of Flats in his “Sports Ville” project located in Sector-2 & 35, Sohna, Gurgaon. The above Applicant No. 1 also alleged that the Respondent had not passed on the benefit of Input Tax Credit (ITC) availed by him by way of commensurate reduction in the price of the above flats. The said application was forwarded by this Authority to the Standing Committee on Anti-profiteering for further necessary action. The aforesaid pplication was considered by the Standing Committee on Anti-profiteering, in its meeting held on 271” December, 2018, wherein it was decided to forward the same to the DGAP to conduct detailed investigation in to the complaint according to Rule 129 (1) of the CGST Rules, 2017. The DGAP has covered the period from 01.07.2017 to 31.12.2018 for the investigation and relevant documents were called from the Respondent. From the data submitted by the Respondent for the period April, 2016 to December, 2018, the details of the input tax credits availed by him, his turnovers from the project “Sports Ville”, the ratios of input tax credits to the turnovers, during the pre-GST (April, 2016 to June, 2017) and post-GST (July, 2017 to December, 2018) periods were worked out by the DGAP and the same are given in the Table-A’ below:-
Table-A’
(Amount in Rs.)
