2020 (4) TMI 905 - NAPA - GST

Respondent failed to pass on Input Tax Credit benefit post-GST, ordered to repay Rs. 24,78,383.

Sh. Vivek Gupta, and Director General of Anti-Profiteering, Central Board of Indirect Taxes & Customs Versus M/s Maheshwari Infratech Pvt. Ltd

Sh. Vivek Gupta, and Director General of Anti-Profiteering, Central Board of Indirect Taxes & Customs Versus M/s Maheshwari Infratech Pvt. Ltd - TMI Issues Involved:1. Whether the benefit of Input Tax Credit (ITC) was passed on by the Respondent to the Applicant and other recipients.2. Whether the DGAP exceeded its jurisdiction by including customers other than the Applicant No. 1.3. Whether the calculation of profiteering should consider ITC availed or ITC utilized.4. Whether the Respondent's claim of passing on ITC benefits through discounts and credit notes was valid.5. Whether the blocked ITC by State GST authorities should be considered in the calculation of profiteering.Issue-wise Detailed Analysis:1. Benefit of ITC Passed On:The Director General of Anti-Profiteering (DGAP) conducted an investigation to determine if the Respondent passed on the benefit of ITC post-GST implementation. The investigation covered the period from 01.07.2017 to 31.03.2019. The DGAP found that the Respondent benefited from additional ITC of 1.74% of the turnover, which was not passed on to the recipients. The DGAP calculated that the Respondent profiteered an amount of Rs. 24,78,383/-, including Rs. 37,107/- from Applicant No. 1.2. Jurisdiction of DGAP:The Respondent contended that the DGAP exceeded its jurisdiction by calculating profiteering for customers other than Applicant No. 1. The DGAP argued that Section 171 of the CGST Act mandates passing on the benefit of ITC to all recipients, not just the complainant. The DGAP stated that restricting the investigation to the complainant would deny other recipients their due benefit.3. Calculation of Profiteering (ITC Availed vs. ITC Utilized):The Respondent argued that the DGAP should consider ITC utilized (Rs. 1.6 Crore) instead of ITC availed (Rs. 3.31 Crore) for calculating profiteering. The DGAP maintained that the amount of credit availed was taken in all investigations, as unutilized credit would be used in the future to offset tax liabilities.4. ITC Benefits Through Discounts and Credit Notes:The Respondent claimed to have passed on ITC benefits through discounts and credit notes, amounting to Rs. 9,61,130/-. The DGAP verified the credit notes and found that they were issued after the investigation period. The DGAP stated that the Respondent did not produce these credit notes during the investigation.5. Blocked ITC by State GST Authorities:The Respondent argued that the DGAP's calculation of profiteering was erroneous as it included ITC of Rs. 1,77,50,478/- blocked by the State GST authorities. The DGAP acknowledged that the ITC was blocked on 28.03.2019 but stated that it was available to the Respondent during the investigation period. The DGAP could not ascertain the reason for blocking the ITC.Order:The Authority directed the DGAP to further investigate the following issues:1. Verification of the blocked ITC amounting to Rs. 1,77,50,478/-.2. Consideration of the blocked ITC in the calculation of profiteering.3. Verification of the Respondent's claim of passing on ITC benefits amounting to Rs. 9,61,130/-.4. Verification of the Respondent's claim of passing on ITC benefits to Applicant No. 1 amounting to Rs. 95,205/-.The DGAP was instructed to submit a fresh report within three months. The order was delayed due to the COVID-19 pandemic and was passed under the Notification No. 35/2020-Central Tax dated 03.04.2020. Copies of the order were supplied to the Applicants, the Respondent, and the Deputy Commissioner SGST, Gautam Budh Nagar, Uttar Pradesh for necessary action.