2023 (12) TMI 1405 - Commission - GST

Competition Commission orders reinvestigation of construction projects for alleged GST profiteering under Section 171

The Director General of Anti-Profiteering New Delhi Versus M/s Omkar Realtors and Developers Pvt. Ltd., M/s Kash Foods Pvt. Ltd., Mr. Nakul Ravi Arya, Satlaj Terrace, Mr. Varun Ravi Arya

The Competition Commission of India directed reinvestigation of two construction projects after finding the DGAP report incomplete regarding alleged ... Profiteering - construction projects - benefit of Input Tax Credit (ITC) not passed on to the buyers - contravention of Section 171 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- It is observed that the DGAP report dated 15.02.2023 in respect of both the projects is incomplete. Accordingly, the DGAP is directed to re investigate both the above projects viz 'Omkar 1973 Worli' and 'The Summit Business Bay' under Rule 133(4) of the above Rules and submit complete report accordingly. The Respondent No. 1 is also directed to supply the required information to the DGAP promptly. Conclusion - i) The additional benefit of ITC in the GST regime is required to be passed on by the suppliers to the recipients by way of commensurate reduction in price, in terms of Section 171 of GST Act, 2017. ii) Reinvestigation directed by the DGAP to address identified discrepancies and ordered the Respondent No. 1 to provide complete documentation. 1. ISSUES PRESENTED and CONSIDEREDThe judgment primarily revolves around the following core legal questions:Whether the Respondent No. 1, involved in construction projects, contravened Section 171 of the Central Goods and Services Tax Act, 2017, by not passing on the benefit of Input Tax Credit (ITC) to the buyers.Whether the methodology adopted by the Director General of Anti-Profiteering (DGAP) in calculating the alleged profiteering is valid and justified.Whether the Respondent No. 1 has provided adequate documentation to support their claims against the DGAP's findings.Whether the DGAP's report is complete and accurate in its assessment of the alleged profiteering.2. ISSUE-WISE DETAILED ANALYSISIssue 1: Contravention of Section 171 of the CGST Act, 2017Relevant legal framework and precedents: Section 171 of the CGST Act mandates that any benefit of ITC must be passed on to the recipient by way of commensurate reduction in prices.Court's interpretation and reasoning: The court examined the DGAP's report, which concluded that the Respondent No. 1 did not pass on the additional ITC benefit to the buyers in the projects 'Omkar 1973 Worli' and 'The Summit Business Bay Andheri'.Key evidence and findings: The DGAP reported profiteering amounts of Rs. 9,52,76,540/- and Rs. 3,04,60,309/- for the respective projects, indicating a failure to pass on ITC benefits.Application of law to facts: The court considered the DGAP's methodology and the Respondent No. 1's failure to provide sufficient evidence to refute the claims.Treatment of competing arguments: The Respondent No. 1 argued against the DGAP's methodology and claimed that the alleged profiteering was incorrectly calculated. However, the court found these arguments insufficiently supported by evidence.Conclusions: The court directed further investigation into the projects to determine the exact amount of ITC benefit that should be passed on.Issue 2: Validity of DGAP's MethodologyRelevant legal framework and precedents: Section 171 and related rules under the CGST Act provide guidelines for assessing profiteering.Court's interpretation and reasoning: The court acknowledged the DGAP's methodology as generally consistent with the statutory requirements but noted discrepancies in the reported saleable areas and other calculations.Key evidence and findings: The DGAP's methodology involved comparing ITC to turnover ratios pre- and post-GST, which the Respondent No. 1 contested.Application of law to facts: The court found that while the DGAP's approach was largely appropriate, further investigation was needed to address specific inaccuracies.Treatment of competing arguments: The Respondent No. 1's criticisms of the methodology were considered but ultimately deemed insufficient to invalidate the DGAP's findings.Conclusions: The court ordered a reinvestigation to reconcile discrepancies and ensure accurate calculation of profiteering.Issue 3: Adequacy of Documentation Provided by Respondent No. 1Relevant legal framework and precedents: Under the CGST Rules, respondents are required to provide documentation to substantiate their claims against profiteering allegations.Court's interpretation and reasoning: The court found that the Respondent No. 1 did not provide complete documents to verify the authenticity of bookings and consideration received.Key evidence and findings: The DGAP noted the lack of complete documentation, which hindered the verification of claims made by Respondent No. 1.Application of law to facts: The court emphasized the necessity for Respondent No. 1 to supply the required information for a fair assessment.Treatment of competing arguments: The Respondent No. 1's failure to provide adequate documentation weakened their position against the DGAP's findings.Conclusions: The court directed the Respondent No. 1 to cooperate fully with the DGAP in providing necessary documentation.Issue 4: Completeness and Accuracy of the DGAP's ReportRelevant legal framework and precedents: The DGAP is tasked with conducting thorough investigations under the CGST Rules.Court's interpretation and reasoning: The court found the DGAP's report incomplete, particularly regarding the reconciliation of saleable areas and the verification of ITC benefits for landowners.Key evidence and findings: Discrepancies in saleable area figures and incomplete verification of ITC benefits were identified.Application of law to facts: The court required the DGAP to address these gaps through further investigation.Treatment of competing arguments: The court acknowledged the DGAP's efforts but emphasized the need for a complete and accurate report.Conclusions: The court ordered the DGAP to reinvestigate and submit a comprehensive report.3. SIGNIFICANT HOLDINGSPreserve verbatim quotes of crucial legal reasoning: 'The additional benefit of ITC in the GST regime is required to be passed on by the suppliers to the recipients by way of commensurate reduction in price, in terms of Section 171 of GST Act, 2017.'Core principles established: The necessity for passing on ITC benefits to consumers and the requirement for thorough documentation and accurate calculation methodologies in anti-profiteering investigations.Final determinations on each issue: The court directed a reinvestigation by the DGAP to address identified discrepancies and ordered the Respondent No. 1 to provide complete documentation.