Respondent Violated CGST Act by Not Passing on ITC Benefits in "Andour Heights" Project

Shri Sushil Kumar Jain, Director General of Anti-Profiteering, Central Board of Indirect Taxes and Customs Versus M/s. Sarvpriya Securities Pvt. Ltd.

Shri Sushil Kumar Jain, Director General of Anti-Profiteering, Central Board of Indirect Taxes and Customs Versus M/s. Sarvpriya Securities Pvt. Ltd. - TMI Issues Involved:
1. Whether the Respondent failed to pass on the benefit of input tax credit (ITC) to the Applicant No. 1 by way of commensurate reduction in price.
2. Whether the benefit already credited/forwarded to the buyers before initiation of proceedings should be treated as compliance with Section 171 of the CGST Act, 2017.
3. Whether the Applicant No. 1 misled the investigation by not providing complete facts about the receipt of the benefit of input tax credit under GST.

Issue-wise Detailed Analysis:

1. Failure to Pass on ITC Benefit:
The Applicant No. 1 alleged that the Respondent did not pass on the benefit of input tax credit by way of a commensurate reduction in price as required under Section 171 of the CGST Act, 2017. The Director General of Anti-Profiteering (DGAP) conducted an investigation and found that the Respondent had indeed failed to pass on the benefit of ITC to the buyers of flats in the "Andour Heights" project. The investigation period was from 01.07.2017 to 31.12.2018. The DGAP's report indicated that the Respondent had benefited from additional ITC to the extent of 10.65% of the turnover in the post-GST period compared to the pre-GST period. The total profiteered amount was calculated to be Rs. 9,96,18,637, which included GST on the base profiteered amount of Rs. 9,10,82,950.

2. Compliance with Section 171:
The Respondent claimed that he had already passed on the benefit of ITC to the buyers by issuing credit notes and making adjustments in subsequent demand notes. However, the DGAP and the Authority found that there was no evidence in the ledger accounts of the buyers to suggest that the benefit of Rs. 4,08,20,676 claimed to have been passed on was indeed credited on account of ITC. The entries in the ledger accounts did not specifically mention that they were related to the passing on of the ITC benefit. Therefore, the claim of the Respondent was not accepted, and the Authority ordered the Respondent to refund the profiteered amount to the buyers along with interest.

3. Misleading the Investigation:
The Respondent contended that the Applicant No. 1 had misled the investigation by not disclosing the fact that he had already received the benefit of ITC. However, the DGAP found that the Applicant No. 1 had filed the application on 24.07.2018, whereas the Respondent had issued letters to the buyers on 18.07.2018, informing them about the passing on of the ITC benefit. At the time of filing the application, the Applicant No. 1 had not actually received the benefit. The Authority held that the Applicant No. 1, as a buyer, was not expected to have an immaculate knowledge of the documentation related to the application and the exact benefit of ITC that ought to be passed on. The inconsistencies in the application or subsequent submissions of the Applicant No. 1 were considered irrelevant to the outcome of the case.

Conclusion:
The Authority concluded that the Respondent had denied the benefit of ITC to the buyers of flats and shops in the "Andour Heights" project, thereby violating the provisions of Section 171 of the CGST Act, 2017. The Respondent was ordered to refund the profiteered amount along with interest to the buyers. Additionally, a Show Cause Notice was issued to the Respondent for imposition of penalty under Section 171 (3A) of the CGST Act, 2017. The Commissioners of CGST/SGST Haryana were directed to monitor the compliance of this order.