2019 (10) TMI 863 - NAPA - GST

Respondent breached CGST Act by not passing ITC benefit to buyers. Directions issued to rectify with penalty.

Mr. Prasanth Nandulamattam, Director General of Anti-Profiteering, Central Board of Indirect Taxes & Customs Versus M/s. Bhartiya City Developers Pvt. Ltd.

The Respondent was found to have violated Section 171(1) of the CGST Act, 2017 by not passing on the additional Input Tax Credit (ITC) benefit to flat ... Profiteering - Respondent had increased the price of the flat after the introduction of GST - benefit of Input Tax Credit (ITC) not passed on - contravention of provisions of Section 171 (1) of the CGST Act - HELD THAT:- It has been established that the methodology adopted by the DGAP while computing the percentage ratio of CENVAT/ITC to the turnovers for the pre-GST and the post-GST periods is correct and accordingly it is held that the Respondent has benefited from the additional benefit of ITC to the extent of 2.23% (6.55%-4.32%) and profiteered an amount of Rs, 5,06,78,069/including the GST from his customers. This Authority determines the profiteered amount as ₹ 5,06,78,069/- in terms of Rule 133 (1) of the CGST Rules, 2017 and directs the Respondent to pass on the benefit of ₹ 58,450/- to the Applicant No. 1 and ₹ 5,06,19,619/- to the rest 1060 flat buyers as per Annexure-17 of the DGAP Report, along with interest @18% per annum to all the 1061 recipients from the dates from which the above amount was collected by him from them till the payment is made, in terms of Rule 133 (3) (b) of the above Rules, within a period of 3 months from the date of this order. This Authority under Rule 133 (3) (a) of the CGST Rules, 2017 further 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 Penalty - HELD THAT:- The Respondent has denied benefit of ITC to his customers and resorted to profiteering in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has thus committed an offence under section 171 (3A) of the Act and therefore, he is liable for imposition of penalty under the above Section - Accordingly, a Show Cause Notice be issued to him directing him to explain as to why the penalty prescribed under Section 171(3A) 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. Violation of Section 171(1) of the CGST Act, 2017.2. Quantum of profiteering.Detailed Analysis:1. Violation of Section 171(1) of the CGST Act, 2017:The primary issue to be examined was whether the Respondent violated the provisions of Section 171(1) of the CGST Act, 2017, which mandates that any reduction in the rate of tax or benefit of Input Tax Credit (ITC) must be passed on to the recipient by way of commensurate reduction in prices. The DGAP's investigation revealed that the Respondent had availed additional ITC post-GST implementation but did not pass on this benefit to the flat buyers. The ITC as a percentage of the total turnover available to the Respondent during the pre-GST period was 4.32%, and during the post-GST period, it was 6.55%, indicating an additional benefit of 2.23% post-GST. The Respondent's failure to reduce the prices commensurately with the additional ITC benefit constituted a violation of Section 171(1).2. Quantum of Profiteering:The DGAP calculated the profiteered amount based on the additional ITC benefit that the Respondent should have passed on to the buyers. The total profiteered amount was determined to be Rs. 5,06,78,069/-, which included Rs. 58,450/- from the Applicant No. 1 and Rs. 5,06,19,619/- from other flat buyers. The methodology adopted by the DGAP involved comparing the ITC and sales realization for both pre-GST and post-GST periods, taking into account the relevant CENVAT/ITC to turnover ratios.Respondent's Contentions and Authority's Findings:- Cost vs. Sale Realizations: The Respondent argued that the computation of profiteered amount should be based on cost rather than sale realizations. However, the Authority clarified that the benefit of additional ITC must be passed on through reduced prices, which can only be computed by comparing ITC and sales realizations, not costs.- Tax on Services: The Respondent claimed that the increase in service tax from 15% to 18% post-GST did not constitute a real benefit. The Authority rejected this claim, stating that the total benefit of additional ITC, not just on services, must be passed on.- Market-driven Prices: The Respondent argued that flat prices were market-driven and not based on costs. The Authority emphasized that the benefit of additional ITC must be passed on irrespective of market-driven prices.- Project Life Span: The Respondent contended that ITC benefit should be computed over the entire project life span. The Authority held that periodical assessment and passing on of ITC benefit were necessary to prevent the Respondent from enriching himself at the buyers' expense.- Sub-contractors' ITC: The Respondent claimed that major work was executed through sub-contractors, and hence he did not get ITC benefit. The Authority dismissed this claim, stating that the Respondent was entitled to claim ITC on payments made to sub-contractors.- Reduced GST Rate Impact: The Respondent argued that the reduction of GST rate from 12% to 5% without ITC would impact the project cost. The Authority clarified that this change was irrelevant to the current investigation period.Authority's Order:The Authority determined the profiteered amount as Rs. 5,06,78,069/- and directed the Respondent to pass on the benefit of Rs. 58,450/- to Applicant No. 1 and Rs. 5,06,19,619/- to the other 1060 flat buyers, along with interest at 18% per annum from the dates the amount was collected till the payment is made. The Respondent was also ordered to reduce the prices commensurate with the ITC benefit received and to pass on any future ITC benefits. The concerned Commissioner CGST/SGST was directed to ensure compliance and submit a report within four months.Penalty Proceedings:The Authority noted that the Respondent's actions constituted an offence under Section 171(3A) of the CGST Act, 2017, and directed that a Show Cause Notice be issued to the Respondent for imposition of penalty.Monitoring Compliance:The Commissioners of CGST/SGST Karnataka were directed to monitor the order's implementation under the supervision of the DGAP and submit a compliance report within four months.