Atul Waichal Vs Wadhwa Realty Pvt. Ltd. (NAA)
The Authority finds that, the ITC, as a percentage of the turnover, that was available to the Respondent during the pre-GST period (April-2016 to June-2017) was 2.80%, whereas. during the post-GST period (July-2017 to September, 2019), it was 2.83%. This confirms that in the post-GST period, the Respondent has been benefited from additional ITC to the tune of 0.03% (2.83%-2.80%) of his turnover and the same is required to he passed on by him to the recipients of supply, including the Applicant No. I The Authority finds that the computation of the amount of ITC benefit to be passed on by the Respondent to the eligible recipients works out to Rs. 4,44,563/-. The DGAP has calculated the amount of benefit to be passed on to all the eligible recipients as Rs.4,44,563/- on the basis of the information supplied by the Respondent. The Respondent has not disputed the methodology adopted by the DGAP or the amount of profiteering worked out by the DGAP. The names of such homebuyers along with unit number and the benefit already passed on is enclosed with this order as Annexure-A.
In view of the above discussions, the Authority concur with the DGAP report dated 31.12.2020. The Authority determines that the Respondent have profiteered by an amount of Rs. 4,44,563/- for the project ‘Tower F’ in the project “Anmol Fortune-11” during the period of investigation i.e. 01.07.2017 to 30.09.2019. The Authority has also taken note of DGAP verification report dated 10.03.2021 regarding claim of the Respondent that they have passed on Ks. 58,65,423/-. As per the said report, only 23 home buyers out of 117 home buyers have confirmed receipt of the ITC benefit and 2 home buyers have denied receipt of any benefit from the Respondent, the remaining home buyers did not respond to the communication made by the DGAP. Thus, evidence in respect of only 23 out of 117 customers has been submitted. Hence, such verification is neither definite nor conclusive.
The claim of their refund along with the interest @18% thereon, from the date when the above determined profiteered amount was profiteered by him till the date of such payment, in line with the provisions of Rule 133 (3) (b) of the CGST Rules 2017, need to be verified by the concerned CGST/SGST Commissionerate.
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 / Customers commensurate with the benefit of ITC received by him as has been detailed above.
FULL TEXT OF ORDER OF NATIONAL ANTI-PROFITEERING AUTHORITY
1. The present Report dated 31.12.2020 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 had filed an application (originally examined by the Maharashtra State Screening Committee on Anti-Profiteering) 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 No. F-1603, Tower-F in the Respondent’s project ”Anmol Fortune”, Goregaon and had alleged that the Respondent had not passed on the benefit of Input Tax Credit (ITC) to him by way of commensurate reduction in the prices.
2. The DGAP in its report dated 31.12.2020, inter-alia, has stated that:-
a) The Standing Committee on Anti-profiteering examined the application filed by the Applicant No. 1 in its meeting held on 13.09.2019 and the minute of which were received in DGAP on 09.10.2019, whereby it was decided to forward the same to the DGAP to conduct a detailed investigation in the matter. Accordingly, investigation was initiated to collect evidence necessary to determine whether the benefit of Input Tax Credit had been passed on by the Respondent to the Applicant No. 1 in respect of construction service supplied by him (Respondent).
b) The Applicant No. I has submitted the following documents along with his application:-
i. Duly filled in form APAF -1
ii. Copy of the demand letter.
iii. Copies of the Agreement to sell and Agreement to construction
iv. Summary of Agreement to sell and Agreement to Construction.
v. Summary of the details of the Taxes.
c) After receipt of the reference from the Standing Committee on Anti-profiteering, a Notice under Rule 129 of the Rules was issued by the DGAP on 23.10.2019, calling upon the Respondent to reply as to whether he admitted that the benefit of ITC had not been passed on to his Recipients of services by way of commensurate reduction in prices of the flats and if so, to suo mom determine the quantum thereof and indicate the same in his reply to the notice as well as furnish all documents in support of his reply. The Respondent was also allowed to inspect the relied upon non-confidential evidence/information which formed the basis of the investigation between 30.10.2019 and 31.10.2019. The Respondent had availed the said opportunity and inspected the said documents on 19.11.2019. The Applicant No. I was also given opportunity to inspect the non-confidential documents/reply furnished by the Respondent between 26.03.2020 and 27.03.2020, which was not availed by the Applicant No. 1.
d) The time limit to complete the investigation was 08.04.2020. However, in terms of Notification No. 35/2020 —Central Tax dated 03.04.2020 as amended vide Notification No. 91/2020 — Central Tax dated 14.12.2020, issued by the Central Board of Indirect Taxes and Customs under Section 168 (A) of the Central Goods and Services Tax Act, 2017, where, any time limit for completion or compliance of any action, which fell during the period from the 20th day of March, 2020 to the 30th day of March, 2021, and where completion or compliance of such action had not been made within such time, then the time limit for completion or compliance of such action, would be extended upto the 31st day of March, 2021, including for the purpose for furnishing of any report under the provision of the CGST Act, 2017.
e) The period covered by the current investigation was from 01.07.2017 to 30.09.2019.
f) In response to the notice dated 23.10.2019 and subsequent reminders dated 07.11.2019 & 10.01.2020, 07.02.2020, 03.03.2020, 06.03.2020 and 04.06.2020, the Respondent had submitted his replies vide letters and e-mai Is dated 31.10.2019, 19.11.2019, 20.01.2020, 05.02.2020, 13.02.2020, 04.03.2020, 05.03.2020, 06.03.2020, 12.03.2020, 16.03.2020, 18.03.2020, 13.06.2020, 17.07.2020, 24.07.2020, 27.07.2020, 29.07.2020, 31.07.2020, 04.08.2020, 05.08.2020. 07.08.2020, 08.08.2020, 11.08.2020, 21.08.2020 and 31.08.2020. The detailed submissions of the Respondent to the DGAP have been summed up below wherein, inter-alia, it was stated that:-
i. they were engaged in construction of residential properties and they had taken three project named as “Anmol fortune I (Tower-C)”. “Anmol Fortune II (Tower-F)” and Anmol Fortune I (Tower—E)” in 2004 situated at M G Road, Unnat Nagar No.1, Goregaon West, Mumbai. Each tower was considered as a different project in RERA. The “Anmol Fortune-II was completed in Pre-GST and Pre-RERA Period and hence the same was not registered under RERA. They had taken the Separate RERA registration for the Project “Anmol Fortune-II” and Anmol Fortune-III”. The Projects details was given as under:-
