2022 (5) TMI 957 - NAPA - GST

Builder violated Section 171(1) CGST Act by withholding Rs. 33,35,330 ITC benefits from flat buyers, ordered penalty and 18% interest compensation

NAPA held that the respondent builder violated Section 171(1) of CGST Act, 2017 by failing to pass on ITC benefits worth Rs. 33,35,330 to flat and shop ... Profiteering - construction service - Respondent had not passed on the benefit of Input Tax Credit (ITC) to him by way of commensurate reduction in the price - contravention of Section 171 of the CGST Act, 2017 - penalty - HELD THAT:- It is noticed that the Respondent has denied benefit of ITC to the buyers of the flats and the shops being constructed by him in his Project JMD Imperial Suits/Suburbio-67 (Suburbio-1)in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and has committed an offence under Section 171 (3A) of the above Act. Section 171 (3A) of the CGST Act, 2017 has been inserted in the CGST Act, 2017 vide Section 112 of the Finance Act, 2019, and the same became operational w.e.f. 01.01.2020. As the period of investigation was 01.07.2017 to 31.05.2020, therefore, the Respondent is liable for imposition of penalty under the provisions of the above Section. Accordingly, notice be issued to him to explain why penalty as prescribed under Section 171 (3A) should not be imposed on him. The concerned jurisdictional CGST/SGST Commissioner is also directed to ensure compliance of this Order. It may be ensured that the benefit of ITC is passed on to each homebuyer as per this Order along with interest @18%. In this regard an advertisement of appropriate size (visible enough to public at imminent page) may also be published by the concerned Commissioner in minimum of two local Newspapers/vernacular press in Hindi/English/local language with the details i.e. Name of builder (Respondent) - JMD Limited, Project- “JMD IMPERIAL SUITS” Location- Gurugram. Haryana and amount of profiteering Rs. 33,35,330/- so that the concerned homebuyers can claim the benefit of ITC if not passed on. This Order having been passed today falls within the limitation prescribed under Rule 133 (1) of the CGST Rules, 2017. Issues Involved:1. Allegation of profiteering by not passing on the benefit of Input Tax Credit (ITC) under GST.2. Investigation and findings by the Director General of Anti-Profiteering (DGAP).3. Respondent's compliance and submissions.4. Calculation and quantification of profiteering.5. Legal provisions and penalties under the CGST Act, 2017.Detailed Analysis:1. Allegation of Profiteering:The Applicant No. 1 alleged that the Respondent did not pass on the benefit of ITC in respect of a flat purchased in the Respondent's project 'JMD IMPERIAL SUITES' after the implementation of GST from 01.07.2017, as required under Section 171 of the CGST Act, 2017.2. Investigation and Findings by DGAP:The DGAP received the case from the Standing Committee on Anti-profiteering for further investigation. The DGAP examined the complaint and conducted a detailed investigation, including the analysis of various documents such as GSTR-1, GSTR-3B, GSTR-9 returns, VAT & ST-3 returns, balance sheets, and other relevant records.- Pre-GST and Post-GST ITC Analysis: The DGAP found that the ITC as a percentage of turnover available to the Respondent increased from 3.26% in the pre-GST period to 9.89% in the post-GST period, indicating an additional benefit of 6.63% post-GST.- Profiteering Calculation: The DGAP calculated that the Respondent had profiteered an amount of Rs. 33,35,330 by not passing on the benefit of additional ITC to the buyers.3. Respondent's Compliance and Submissions:The Respondent submitted various documents and information during the investigation but did not provide a clear explanation regarding the nature of agreements with buyers or how the benefit of ITC was passed on. Despite the Applicant No. 1 withdrawing the complaint, the DGAP continued the investigation to uphold the provisions of Section 171 of the CGST Act.- Withdrawal of Complaint: The Applicant No. 1 withdrew the complaint stating that all disputes were settled. However, the DGAP proceeded with the investigation as there was no clear mention of how the benefit of ITC was calculated and passed on.4. Calculation and Quantification of Profiteering:The DGAP's report included detailed calculations showing the increase in ITC post-GST and the corresponding profiteering amount. The calculation was based on the turnover and ITC data provided by the Respondent.- Profiteering Amount: The DGAP determined that the Respondent profiteered Rs. 33,35,330, including 12% GST, which was not passed on to 150 homebuyers.5. Legal Provisions and Penalties:The authority found that the Respondent contravened Section 171 of the CGST Act by not passing on the benefit of additional ITC. The authority ordered the Respondent to refund the profiteered amount along with 18% interest to the affected homebuyers.- Penalty: The Respondent was also liable for a penalty under Section 171(3A) of the CGST Act, which was operational from 01.01.2020. A notice was issued to the Respondent to explain why the penalty should not be imposed.- Compliance: The jurisdictional CGST/SGST Commissioner was directed to ensure compliance with the order and publish an advertisement to inform the homebuyers about their entitlement.Conclusion:The authority upheld the DGAP's findings and ordered the Respondent to refund the profiteered amount of Rs. 33,35,330 along with interest to the homebuyers. The Respondent was also liable for a penalty under Section 171(3A) of the CGST Act. The jurisdictional CGST/SGST Commissioner was tasked with ensuring compliance and informing the affected homebuyers.