Director General of Anti-Profiteering Vs Puma Realtors Pvt. Ltd (NAA)
NAA held that although Anti-Profiteering Provisions of Section 171 of CGST Act, 2017 were violated by Respondent, yet provisions of IBC, 2016 will nonetheless prevail.
DGAP had observed that a Corporate Insolvency Resolution Process (CIRP) was initiated against the Respondent under Insolvency and Bankruptcy Code 2016 (IBC) vide Order dated 17.10.2018 by the National Company Law Tribunal (NCLT), New Delhi. The Said CIRP had been concluded by NCLT vide its Order dated 01.06.2021 whereby the Resolution Plan filed by the M/s One City Infrastructure Pvt. Ltd was duly approved and subsequently implemented.
DGAP has further observed that as per provisions of Section 238 of the IBC, 2016 “the provisions of this code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law:” Although, it is argued that the provisions of Section 171 of the CGST Act, 2017 have been violated by the Respondent, yet the provisions of IBC, 2016 will nonetheless prevail.
FULL TEXT OF ORDER OF NATIONAL ANTI-PROFITEERING AUTHORITY
The present Report dated 28.10.2021, was received from the Director General of Anti-Profiteering (DGAP) pursuant to the Interim Order (1.0.) No. 14/2019 dated 21.10.2019 issued by this Authority under Rule 133(5)(a) of the CGST Rules 2017 in the matter of M/s Ireo Grace Real tech Pvt. Ltd. (IGRPL), Ireo Campus-Sector-59, Archive Drive, Ireo City, Golf Course Extension Road, Gurugram-122101. Brief facts of the case are that during the proceedings under Section 171 of the CGST Act 2017 against the project “The Corridors” of IGRPL, this Authority had reason to believe that 1GRPL has executed/was executing several projects. Hence this Authority had issued aforesaid I.O. dated 21.10.2019 inter alia directing the DGAP to investigate all projects of IGRPL to ascertain whether violation of the provision of Section 171 of the CGST Act 2017.
2. Accordingly, the DGAP had vide his Report dated 28.10/021 reported on all other projects of IGRPL and such Projects with brand name “IREO” in terms of section 171 of the CGST Act 2017 wherein he has inter alia stated that:-
(i). All the projects of IGRPL, with the brand name “IREO” discussed in the 1.0.14/2019 have been taken up for investigation. Details of the same are tabulated in Table —A below.
As the Occupancy Certificates covering the entire projects mentioned in serial No.1 and 2 of the Table have been issued in the pre-GST period, hence both the projects were kept out of the purview of the investigation, and the projects mentioned at serial No. 9 & 10 of the table, have been concluded and report has been submitted to this Authority separately. Accordingly, the remaining six projects at serial Nos. 3 to 8 where Occupation Certificate has not been issued before GST implementation, the NO1 has been issued on 15.01.2021 to look into the aspect of violation of provisions of Section 171 of the Act. Therefore, the six remaining projects have been considered for investigation.
TABLE-A
(ii).Consequent to the above, it was decided to expand the scope of the investigation and called for the required documents/information to ascertain whether the benefit of the input tax credit has been passed on in terms of Section 171 of the Central Goods and Services Tax Act, 2017 to the recipients in respect of construction service supplied by;
(a) M/s Ireo Pvt. Ltd., Iero Campus, Sector 859, Archview Drive, Ireo City, Golf Course Extension Road, Gurugram-122101 for the projects “Skyon”, “Ireo City Central” and “Managed Service Apartment”.
(b) M/s Ireo Victory Valley Pvt. Ltd., 305, 3rd Floor, Kanchan House, Karampura commercial complex, New Delhi 110015 for the project “Victory Valley”.
(c) M/s Ireo Waterfront Pvt. Ltd., C-4, 1st Floor Malviya Nagar, New Delhi, 110017 for the project “Ireo Waterfront”.
(d) M/s Puma Realtors Pvt. Ltd., A-11, 1st Floor, Neeti Bagh, New Delhi South Delhi-110049 for the project “Ireo Rise”.
(iii). Vide the instant Report, only M/s Puma Realtors Pvt. Ltd. (the Respondent), for his project “Ireo Rise” has been investigated covering the period from 01.07.2017 to 31.12.2020. In respect of M/s Ireo Pvt. Ltd., M/s Ireo Victory Valley Pvt. Ltd., and M/s Ireo Waterfront Pvt. Ltd., the cases have been investigated separately.
(iv). On receipt of directions issued vide above said JO dated 21.10.2019, the DGAP had issued a Notice under Rule 129 of the COST Rules, 2017 on 15.01.2021, calling upon the Respondent to reply as to whether he admits that the benefit of input tax credit had not been passed on to the recipients by way of commensurate reduction in price and if so, to suo inoto determine the quantum thereof and indicate the same in their reply to the Notice as well as furnish all supporting documents.
(v). Accordingly, in response to the Notice dated 15.01.2021, the Respondent replied vide letters/ emails dated 25.01.2021, 29.01.2021, 24.02.2021, and 16.07.2021 and submitted the following documents/ information:
(a) Brief profile of the Respondent.
(b) Copies of GSTR-1 & GSTR-3B returns for the period July 2017 to Dec. 2020.
(c) Copies of Tran-1 return for transitional credit availed by the Respondent.
(d) Copies of ST-3 returns for the period October 2016 to June 2017.
(e) Electronic Credit Ledger for the period July 2017 to Dec. 2020.
(f) CENVAT/ITC register for the period 2017-18, 2019-20 & 2020-21.
(g) Applicable tax rates, pre-GST and post-GST.
(h) Copy of Balance Sheet for FY 2016-17 & 2017-18.
(i) Copy of Order of National Company Law Tribunal (NCLT) for initiation of Corporate Insolvency Resolution Process (CIRP) dated 17.10.2018.
(j) Copy of Order of National Company Law Tribunal (NCLT) for the conclusion of CIRP dated 01.06.2021.
(k) Copy of Resolution Plan.
(vi). He (the DGAP) had carefully examined the aforesaid replies and the documents/evidence furnished by the Respondent and had found that the key issues for determination were:-
