2019 (3) TMI 369 - NAPA - GST

Respondent Ordered to Pass on Tax Benefit Savings to Buyers

Shri Ashok Khatri, Director General of Anti-Profiteering, Central Board of Indirect Taxes & Customs Versus M/s S3 Infra Reality Pvt Ltd.

The Respondent was found to have not passed on the full benefit of additional Input Tax Credit (ITC) to buyers, violating Section 171 of the CGST Act, ... Profiteering - Auric City Homes - benefit of input tax credit not passed on - net additional benefit of ITC - contravention of Section 171 of the CGST Act, 2017 - whether there has been any benefit of reduction in the rate of tax or ITC that needs to be passed on to the recipients by way of commensurate reduction in prices - Held that:- In the present case, the Respondent has availed benefit of additional ITC of 6.49% (post GST) as compared to 3.65% (pre-GST). Based on the data and the documents filed by the Respondent, this percentage has been rightly arrived at by the DGAP by taking into account the benefit of credit available during pre GST (April 2016 to June 2017) to the taxable turnover received during the said period. Similarly for the post GST period (01 07.2017 to 31.08.2018) the percentage of ITC has been arrived at by taking into account the credit available as against the taxable turnover received during the same period. The Respondent had benefit of ITC of ₹ 1,59,38,195 (3.6%) in pre GST when compared to ₹ 3,09,70,006 (6.49%) in the post GST period thus providing him the net benefit of ITC of 2.84%. This Authority under Rule 133(3) (a) of the CGST Rules, 2017 orders that the Respondent shall reduce the price to be realized from the buyers of the flats commensurate with the benefit of ITC received by him as has been detailed above. Since the present investigation is only up to 31.08.2018 any benefit of ITC which accrues subsequently shall also be passed on to the buyers by the Respondent as and when the remaining residential/commercial units are sold. The Respondent's Annexures dated 19.02.2019 and 25.02.2019 which comprise of the details of payments made through various modes are taken on record. As per this Annexure the Respondent has paid to the Applicant No. 1 and 473 other home buyers the entire profiteered amount through cheques as has been shown in the Annexures. The Respondent has also stated that to 177 home buyers the profiteered amount has been passed on through the credit notes and letters to this effect have been sent to all these home buyers. Thus, the Respondent has denied benefit of ITC to the buyers of the flats being constructed by him under the above Policy in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has thus realized more price from them than he was entitled to collect and has also compelled them to pay more GST than that they were required to pay by issuing incorrect tax invoices and hence he has committed an offence under section 122(1) (i) of the CGST Act, 2017 and therefore, he is liable for imposition of penalty - thus, a SCN be issued to him directing him to explain why the penalty prescribed under Section 122 of the above Act read with rule 133(3) (d) of the CGST Rules, 2017 should not be imposed on him. Application disposed off. Issues Involved:1. Whether there was a reduction in the rate of tax on the service in question w.e.f. 01.07.2017 and w.e.f. 25.01.2019Rs.2. Whether there was any net additional benefit of Input Tax Credit (ITC)Rs.3. Whether there was any violation of the provisions of Section 171 of the CGST Act, 2017, by not passing on the benefits by the RespondentRs.Issue-wise Detailed Analysis:I. Reduction in the Rate of Tax:The DGAP's report and the Authority's examination confirmed that the Central Government levied an 18% GST on construction services, with an effective rate of 12% considering a 1/3rd abatement on the land value. This rate was subsequently reduced to 8% for affordable and low-cost housing, effective from 25.01.2018. Thus, the tax rate on the service in question was indeed reduced from 12% to 8% as of 25.01.2018.II. Net Additional Benefit of ITC:The DGAP's investigation revealed that the Respondent benefited from an additional ITC post-GST implementation. The ITC as a percentage of the total turnover available to the Respondent during the pre-GST period (April 2016 to June 2017) was 3.65%, and during the post-GST period (July 2017 to August 2018), it was 6.49%. This indicated an additional ITC benefit of 2.84% post-GST. The Respondent admitted to this benefit and had passed on some of it to the buyers, though not entirely.III. Violation of Section 171 of the CGST Act, 2017:The DGAP's report established that the Respondent had not passed on the full benefit of the additional ITC to the recipients, thereby violating Section 171 of the CGST Act, 2017. The DGAP calculated the total profiteered amount to be Rs. 1,48,60,874, which included GST on the base profiteered amount. The Respondent had passed on Rs. 1,11,33,581 but was still required to pass on an additional Rs. 37,27,293 to the buyers.Conclusion and Orders:The Authority ordered the Respondent to reduce the price to be realized from the buyers commensurate with the benefit of ITC received. The Respondent was directed to pass on the balance amount of Rs. 57,76,610 to the identified buyers, along with interest at 18% from the date of receipt of the amount until the date it is refunded/adjusted. The Respondent was found to have committed an offence under Section 122 (1) (i) of the CGST Act, 2017, and a Show Cause Notice was issued for the imposition of a penalty.The Commissioners of CGST/SGST Haryana were directed to monitor the compliance of this order under the supervision of the DGAP and submit a compliance report within three months. Copies of the order were supplied to all relevant parties for necessary action.