2019 (11) TMI 818 - NAPA - GST

Failure to pass on Input Tax Credit benefit to flat buyers results in profiteering under CGST Act.

Shri Diwakar Bansal, Director General of Anti-Profiteering, Central Board of Indirect Taxes & Customs, Versus M/s. Horizon Projects Pvt. Ltd.,

The Respondent failed to pass on the benefit of Input Tax Credit (ITC) to flat buyers, resulting in a profiteered amount of Rs. 3,20,49,507/-. The ... Profiteering - purchase of Flat No. 2204 in Tower B2, in the Respondent’s project, “Runwal My City” - benefit of Input Tax Credit (ITC) had not been passed on to him by the Respondent by way of commensurate reduction in the price of the above flat - contravention of provisions of section 171 of CGST Act - HELD THAT:- 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 commensurate with the benefit of ITC received by him as has been detailed above. Since the present investigation is only up to 30.06.2018 any benefit of ITC which accrues subsequently shall also be passed on to the buyers by the Respondent. The Commissioners CGST/SGST shall ensure that the above benefit is passed on to the eligible buyers. The Applicant No. 1 as well as the other flat buyers will also be at liberty to maintain proceedings against the Respondent for violation of the provisions of Section 171 of the CGST Act, 2017, in case the benefit of additional ITC is not passed on to them. Penalty - HELD THAT:- The Respondent has denied benefit of ITC to the buyers of the flats being constructed by him in his ‘Runwal My City Project in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has thus profiteered an amount of ₹ 3,20,49,507/- from his customers, hence he has committed an offence under section 171 (3A) of the CGST Act, 2017 and therefore, he is liable for imposition of penalty under the provisions of the above Section - Accordingly, a SCN be issued to him directing him to explain why the penalty prescribed under the above Section read with Rule 133 (3) (d) of the CGST Rules, 2017 should not be imposed on him. Application disposed off. Issues Involved:1. Whether the benefit of Input Tax Credit (ITC) was passed on to the recipients by the Respondent.2. Whether the methodology for determining profiteering was appropriate.3. Whether the Respondent was liable for imposition of penalty under the CGST Act, 2017.Issue-Wise Detailed Analysis:1. Benefit of ITC Passed On:The Applicant No. 1 alleged that the Respondent did not pass on the benefit of ITC by way of a commensurate reduction in the price of the flat purchased. The Maharashtra State Screening Committee found that the Respondent had not apportioned the ITC benefit against the installments for the flat's price. The DGAP's investigation revealed that the ITC as a percentage of the total turnover available to the Respondent during the pre-GST period was 1.76%, and during the post-GST period, it was 5.27%. This indicated an additional ITC benefit of 3.51% post-GST, which the Respondent did not pass on to the flat buyers, thereby contravening Section 171 of the CGST Act, 2017. Consequently, the profiteered amount was determined to be Rs. 3,20,49,507/-, including GST on the base profiteered amount of Rs. 2,90,55,908/-.2. Methodology for Determining Profiteering:The Respondent contended that no specific methodology for determining profiteering was provided under the GST laws, making the DGAP's investigation without sanction of law. However, Section 171(1) of the CGST Act, 2017, mandates that the benefit of ITC must be passed on to the recipients by way of commensurate reduction in prices. The Authority has the power to determine the methodology for calculating the profiteered amount on a case-to-case basis. The DGAP computed the ratio of ITC to turnover and calculated the benefit that should have been passed on by the Respondent, which was found to be appropriate and in line with the provisions of Section 171.3. Imposition of Penalty:The Respondent argued that the DGAP's findings amounted to price regulation, which violated the fundamental right to trade and commerce. However, the Authority clarified that the DGAP's findings did not regulate prices but merely ensured that the benefit of ITC was passed on to the recipients as required by law. The Respondent's failure to pass on the ITC benefit constituted an offense under Section 171(3A) of the CGST Act, 2017, making him liable for a penalty. A Show Cause Notice was issued to the Respondent to explain why the penalty should not be imposed.Conclusion:The Authority ordered the Respondent to reduce the prices commensurate with the benefit of ITC received and to pass on the profiteered amount of Rs. 3,20,49,507/- to the flat buyers along with interest at 18% per annum. The Respondent was also directed to pass on any future ITC benefits to the buyers. The Commissioners of CGST/SGST Maharashtra were instructed to monitor compliance with this order, and a report was to be submitted within four months.