2019 (5) TMI 785 - NAPA - GST

Failure to Pass on GST Benefit Results in Penalties and Profiteering Findings

Ms. Pallavi Gulati And Sh. Abhimanyu Gulati, Director General of Anti-Profiteering, Central Board of Indirect Taxes & Customs Versus M/s Puri Constructions Pvt. Ltd.

Ms. Pallavi Gulati And Sh. Abhimanyu Gulati, Director General of Anti-Profiteering, Central Board of Indirect Taxes & Customs Versus M/s Puri ... Issues Involved:1. Whether the Respondent had passed on the benefit of Input Tax Credit (ITC) to the Applicant and other buyers.2. Calculation and determination of the profiteered amount.3. Legal validity of the Respondent's claims and defenses.4. Imposition of penalty on the Respondent.Issue-Wise Detailed Analysis:1. Whether the Respondent had passed on the benefit of Input Tax Credit (ITC) to the Applicant and other buyers:The Applicant No. 1 alleged that the Respondent did not pass on the benefit of ITC after the introduction of GST, despite charging GST at 12%. The DGAP's investigation revealed that the Respondent had benefited from additional ITC post-GST, which was not passed on to the buyers. The Respondent claimed that the benefit would be calculated and passed on at the time of project completion. However, the DGAP found that the benefit needed to be passed on periodically, not just at project completion.2. Calculation and determination of the profiteered amount:The DGAP's initial report calculated the profiteered amount as Rs. 3,42,31,077/-, including GST on the basic profiteered amount. After re-examination, the DGAP revised the profiteered amount to Rs. 1,01,06,773/-, considering the ITC availed and the taxable turnover pre and post-GST. The revised report found that the ITC as a percentage of turnover increased from 2.21% pre-GST to 4.00% post-GST, resulting in an additional benefit of 1.79% which was not passed on to the buyers.3. Legal validity of the Respondent's claims and defenses:The Respondent argued that the computation of benefit could only be done upon project completion and that no additional ITC benefit had accrued post-GST. The Respondent also contended that the benefit should be passed on to all buyers, including those who had not paid post-GST. The DGAP and the Authority rejected these claims, stating that the benefit must be passed on periodically based on the ITC availed and the amounts received from buyers. The Respondent's claim that the benefit of ITC was not passed on by suppliers was also dismissed as irrelevant to the Respondent's obligation under Section 171 of the CGST Act.4. Imposition of penalty on the Respondent:The Authority found that the Respondent had not voluntarily passed on the benefit of ITC and had only done so after the investigation began. The Respondent's actions were deemed a violation of Section 171 of the CGST Act, making him liable for penalties. However, the Show Cause Notice issued for imposing penalties under Sections 122-127 was found to be vague and was ordered to be withdrawn, but the rest of the notice remained operative. The Authority directed the issuance of a new Show Cause Notice specifically under Section 122(1)(i) for issuing incorrect tax invoices.Conclusion:The Respondent was found to have violated Section 171 of the CGST Act by not passing on the benefit of additional ITC to the buyers. The profiteered amount was determined to be Rs. 1,01,06,773/-, including GST, which the Respondent was directed to return to the buyers along with interest. The Authority also ordered the DGAP to investigate the Respondent's other projects to ensure compliance with the anti-profiteering provisions.