Smt. Mamta Aggarwal Vs GLS Infratech Pvt. Ltd. (National Anti-Profiteering Authority)
Authority determines the profiteered amount as Rs. 4,35,53,927/- (inclusive of applicable GST @ 12% or 8%) for the 1075 residential units for the period from 01.07.2017 to 31.08.2018 as per the details furnished by the DGAP vide Annexure-20 of his above Report. The above amount includes an amount of Rs. 1,74,24,547/-including the GST @ 12% w.e.f. 01.07.2017 to 24.01.2018 and an amount of Rs. 2,61,29,380/- including the GST @ 8% for the period from 25.01.2018 to 31.08.2018. However, the Respondent has passed on Rs. 2,52,63,079/- as benefit of ITC to the above flat buyers as has been duly verified by the DGAP in Table-D supra. Therefore, the balance profiteered amount of Rs. 1,82,90,848/- [4,35,53,927/- (-) 2,52,63,079/-] is required to be returned to the eligible recipients as per the details furnished by the DGAP vide Annexure-21 of the above Report. This amount includes Rs. 11,863/- (39,419/- (-) Rs. 27,556/-(inclusive of applicable GST) of the benefit which is required to be passed on to the Applicant No. 1.
It is also established from the perusal of the above facts of the case that the provisions of Section 171 of the CGST Act, 2017 have been contravened by the Respondents as he has failed to pass on the benefit of additional ITC to his customers. Accordingly, he is directed to pass on an amount of Rs 11,863/- to the above applicant and an amount of Rs. 1,82,78,985/- (Rs. 1,82,90,848 – Rs. 11,863/-) to the other flat buyers who are not Applicants in the present proceedings as per the details given by the DGAP in Annexure-21. The above amounts shall be paid within a period of 3 months from the date of issue of this Order to the Applicant No. 1 and the other eligible house buyers by the Respondent along with interest @ 18% from the date from which these amounts were realised by the Respondent from them, till they are paid as per the provisions of Rule 133 (3) (b) of the CGST Rules, 2017, failing which the above amounts shall be recovered by the concerned Commissioner CGST / SGST and paid to the eligible house buyers.
From the above discussions it is clear that the Respondent has profiteered by an amount of Rs. 4,35,53,927/- during the period of investigation. Therefore, 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. The present investigation is only up to 30.08.2018 therefore, any additional benefit of ITC which shall accrue subsequently shall also be passed on to the buyers by the Respondent. In case this additional benefit is not passed on to the Applicant No. 1 or other buyers they shall be at liberty to approach the State Screening Committee Haryana for initiating fresh proceedings under Section 171 of the above Act against the Respondent. The concerned CGST or SGST Commissioner shall take necessary action to ensure that the benefit of additional ITC is passed on to the eligible house buyers in future.
FULL TEXT OF ORDER OF NATIONAL ANTI-PROFITEERING APPELLATE AUTHORITY
1. This Report dated 26.02.2019 has been 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. The brief facts of the present case are that an application dated 03.05.2018 was filed before the Haryana State Screening Committee on Anti- Profiteering which referred it to the Standing 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 “Arawali Homes” situated at Sector-4, Sohna, Gurgaon, Haryana. The above applicant had alleged that the Respondent was collecting wrong GST post implementation of GST and was not refunding GST collected in the wrong manner, even after sending clarification that the GST was not applicable to “Affordable Housing”, as the GST amount could be adjusted against the Input Tax Credit (ITC)
2. The above application was examined by the Standing Committee on Anti-profiteering in its meetings held on 07.08.2018 & 08.08.2018 and was forward to the DGAP for detailed investigation under Rule 129 (1) of the CGST Rules, 2017.
3. The DGAP on receipt of the above application had called upon the Respondent to submit reply as to the whether the ITC benefit was passed on to the recipients and also asked him to suo-moto determine the quantum of benefit which was not passed on. The Respondent as well as the above Applicant was afforded opportunity to inspect the evidence submitted by the other party however both of them did not avail the same. The Respondent had also not supplied the complete information sought by the DGAP hence summons were issued against him under Section 70 of the CGST Act, 2017 read with Rule 132 of the CGST Rules, 2017 and accordingly the Respondent had appeared on 30.11.2018 and submitted the required information.
4. The Respondent submitted replies vide letters dated 24.09.2018, 03.10.2018, 10.10.2018, 23.10.2018, 15.11.2018, 30.11.2018, 02.01.2018, 16.01.2019 and 06.02.2019 to the DGAP. Vide letter dated 03.10.2018 the Respondent had stated that he had informed the Applicant No. 1 over telephone and through e-mail about passing on of the benefit of ITC. He has also stated that a number of changes were taking place in the GST regime, such as, change in the GST rates and its applicability on Affordable Housing Projects, however, the Respondent had ensured that the benefit of actual ITC was passed on to all his customers and he has passed on benefit of ITC amounting to Rs. 2,52,63,079/-. The Respondent had further undertaken that the final benefit of ITC would be recalculated at the time of handling over of the possession of the flats to the customers.
5. The DGAP’s investigation Report has covered the period from 01.07.2017 to 31.08.2018. The Respondent has also submitted the following documents along with his replies:-
(a) Copies of GSTR-1 Returns for the period from July, 2017 to August, 2018.
(b) Copies of GSTR-3B Returns for the period July, 2017 to August, 2018.
(c) Copies of VAT & ST-3 Returns for the period from April, 2016 to June, 2017.
(d) Copies of all demand letters and sale agreement/contract issued in the name of the above Applicant.
(e) Tax rates- pre-GST and post-GST.
(f) Copy of Balance Sheet for FY 2016-17& FY 2017-18.
(g) Copy of Electronic Credit Ledger for the period from 01.07.2017 to 31.08.2018.
(h) CENVAT/ITC register for the period from April, 2016 to August, 2018.
(i) Details of VAT, Service Tax, ITC of VAT, CENVAT for the period from April, 2016 to June, 2017, and GST & ITC of GST for the period from July, 2017 to August, 2018 for the project “Arawali Homes”.
(j) List of home buyers of the project “Arawali Homes” along with the details of GST benefit passed on.
(k) Reconciliation of turnover reported in GSTR-3B Return with list of home buyers.
(I) Copy of e-mail correspondence with the above Applicant.
(m) Sample Copies of letters issued to the customers regarding passing on the GST ITC benefit.
6. DGAP has also submitted that the details of the amounts and the GST paid by the Applicant No. 1 for a flat measuring 467 sq. ft., at the basic sale price of Rs. 3,600/- per sq. ft. as per the Table-A’ below:-
Table-A’
(Amount in Rs.)
