2020 (7) TMI 507 - NAPA - GST

Respondent ordered to pass on Input Tax Credit benefit to flat buyers, penalized for profiteering

Sh. S. Ganapathy Subramanian, Director General of Ant-profiteering Central Board of Indirect Taxes & Customs, Versus M/s. Mahindra Lifespace Developers Ltd.,

The Authority found that the Respondent had profiteered by not passing on the benefit of Input Tax Credit (ITC) to flat buyers, contravening Section 171 ... Profiteering - purchase of flat - allegation that the benefit of input tax credit not passed on - contravention of section 171 of CGST Act - penalty - HELD THAT:- The respondent has benefiteed from the additional ITC to the extent of 7.06% of the turnover during the period from 01.07.2017 to 31.10.2019 and hence the provisions of Section 171 of the CGST Act, 2017 have been contravened by the repsondent as he has not passed on the benefit to his customers and thus, he has profiteered an amount of ₹ 2,87,64,178/- inclusive of GST @ 12% as is evident from the report. The respondent has denied benefit of ITC to the buyers of the flats being constructed by him in the project in contravention of section 171 (1) of CGST Act, 2017 and thus he has resorted to profiteering. Penalty - HELD THAT:- The respondent has committed as offence u/s 171(3A) of CGST Act, 2017 and therefore, he is apparently liable for imposition of penalty - accordingly, a SCN be issued to him directing him to explain why the penalty prescribed u/s 171 (3A) of the Act read with Rule 133(3)(d) of CGST Rules, 2017 should not be imposed on him. Issues Involved:1. Alleged profiteering by the Respondent for not passing on the benefit of Input Tax Credit (ITC) under GST.2. Discrepancies in the calculation of ITC benefit by the Director General of Anti-Profiteering (DGAP) and the Respondent.3. Compliance with the procedural timelines for investigation and reporting.4. Determination of the methodology for calculating the profiteered amount.5. Legal implications and penalties for contravention of Section 171 of the CGST Act, 2017.Detailed Analysis:1. Alleged Profiteering by the Respondent:The Applicant No. 1 filed a complaint alleging that the Respondent did not pass on the benefit of ITC for the purchase of a flat in the 'Avadi' Project at Chennai. The DGAP, after investigation, found that the Respondent had indeed benefited from additional ITC to the extent of 7.06% of the taxable turnover, which was not passed on to the buyers, thus contravening Section 171 of the CGST Act, 2017. The DGAP calculated the amount of profiteering as Rs. 2,87,64,178/-.2. Discrepancies in ITC Calculation:The Respondent contested the DGAP's calculation, claiming that the net additional ITC benefit was only 0.16%, not 7.06%. The DGAP's Report highlighted serious differences in the calculations, necessitating re-investigation. The DGAP's subsequent investigation reaffirmed the initial findings, concluding that the Respondent had not provided complete information and had attempted to delay the investigation.3. Procedural Timelines:The Respondent argued that the DGAP's Report was time-barred as it was submitted beyond the prescribed period under Rule 129(6) of the CGST Rules. However, the Authority clarified that the re-investigation was directed under Rule 133(4), which does not prescribe a specific timeline. The DGAP had submitted the initial Report within the extended period allowed by the Authority, and the re-investigation was conducted as per the Authority's directions.4. Methodology for Calculating Profiteered Amount:The DGAP's methodology involved comparing the ratio of ITC to turnover for the pre-GST and post-GST periods. The Respondent's contention that the increase in ITC was due to increased construction costs and higher tax rates on services was rejected. The Authority upheld the DGAP's methodology, stating it was appropriate, logical, and in accordance with the provisions of Section 171 of the CGST Act, 2017.5. Legal Implications and Penalties:The Authority found that the Respondent had indeed profiteered by not passing on the ITC benefit, thus contravening Section 171 of the CGST Act, 2017. The Respondent was directed to reduce the prices of the flats commensurate with the benefit of ITC and to pass on the benefit to the eligible flat buyers along with interest. A Show Cause Notice was also directed to be issued for imposing a penalty under Section 171(3A) of the CGST Act, 2017.Conclusion:The Authority ordered the Respondent to pass on the benefit of ITC to the flat buyers and reduce the prices accordingly. The Respondent was found to have contravened the provisions of Section 171 of the CGST Act, 2017, and was liable for penalties. The Commissioners of CGST/SGST Tamil Nadu were directed to monitor compliance with the order.