2025 (8) TMI 1123 - AT - GST

Restaurant GST rate cut must be passed to consumers unless proven otherwise; s.171(1) and s.171(3A) issues

Director General of Anti-Profiteering, Central Board of Indirect Taxes & Customs Versus Urban Essence (prop. AniketNagnathNimbalkar).

Director General of Anti-Profiteering, Central Board of Indirect Taxes & Customs Versus Urban Essence (prop. AniketNagnathNimbalkar). - TMI ISSUES PRESENTED AND CONSIDERED 1. Whether the supplier profiteered by failing to pass on the benefit of reduction in GST rate on restaurant services from 18% to 5% w.e.f. 15.11.2017, measured as a commensurate reduction in prices in terms of Section 171 CGST Act. 2. Whether the supplier was entitled to adjust the DGAP's computed ITC-to-turnover ratio by claiming additional input tax credit (invoices/debit notes) for the period July 2017-October 2017 in light of CBIC Press Release No. 62/2018 (extension to 31.12.2018), and whether such claim changes the quantum of alleged profiteering. 3. Whether the DGAP/NAA/Triunal were correct in investigating all supplies/SKUs of the registered person rather than limiting investigation to the single product complained of. 4. The legal standard for rebutting the presumption that a reduction in tax rate or availability of ITC must lead to commensurate price reduction, and the evidentiary burden on the supplier to justify any countervailing increase in base prices. 5. Whether penalty under Section 171(3A) CGST Act (and Rule 133) could be imposed for profiteering occurring prior to its effective date. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Whether profiteering occurred by not passing on GST reduction Legal framework: Section 171 CGST Act mandates examination whether input tax credit availed or reduction in tax rate has resulted in commensurate reduction in price. Rule 129(2) mandates DGAP to investigate and collect evidence. The statutory mandate is to ensure benefit of tax reduction/ITC accrues to recipients by way of commensurate price reduction. Precedent treatment: The Tribunal considered authoritative observations of the High Court that Section 171's presumption that tax reduction must result in price reduction is rebuttable; suppliers may raise base prices for genuine commercial reasons but must justify such increases with cogent evidence. Interpretation and reasoning: The DGAP compared pre-rate-reduction average base prices with post-reduction invoice prices and found base prices increased such that the cum-tax price did not reduce commensurately after the rate change. DGAP computed ITC-to-turnover ratio (7.54%) for the pre-reduction period and added that percentage to pre-reduction base prices to model the base price that would obtain if ITC denial were passed on; comparing that with actual post-reduction selling prices produced a per-unit profiteering figure which was aggregated to Rs. 5,47,005/-. The Tribunal found no substantiated evidence from the supplier that base prices increased for legitimate reasons or that ITC subsequently claimed altered the ratio. The Tribunal emphasized that cost increases unconnected to tax change do not obviate Section 171's requirement unless established cogently. Ratio vs. Obiter: The holding that profiteering of Rs. 5,47,005/- occurred is ratio decidendi (operative conclusion) applying Section 171 to the factual findings. Observations on the aim of Section 171 as benevolent and the limits on supplier discretion reinforce reasoning (ratio). Conclusion: The Tribunal upheld DGAP's finding that profiteering occurred to the extent computed; directed refund/deposit of the profiteered amount (slightly adjusted in order) with 18% interest into consumer welfare funds within the specified period, and recovery mechanism if not complied with. Issue 2 - Entitlement to claim additional ITC (CBIC press release) and effect on profiteering computation Legal framework: Input Tax Credit eligibility and timeline are governed by CGST Act/Rules and administrative extensions; DGAP's mandate is to verify returns and statutory records to ascertain ITC actually availed and its effect on prices. Rule 133(4) permits reinvestigation where interim order directs further probe. Precedent treatment: NAA remanded for reinvestigation to give opportunity to produce invoices/debit notes that might have been claimed up to 31.12.2018 per CBIC press release; DGAP re-investigated returns up to October 2019 and scrutinized whether any such invoices were reflected in statutory filings. Interpretation and reasoning: DGAP's re-investigation found no statutory return or ITC ledger entries evidencing additional credit for July-October 2017 claimed up to 31.12.2018. The Tribunal noted that the press release extended the last date to apply to claim ITC but did not relieve the respondent of the obligation to place documentary proof before the investigating agency. The supplier failed to produce invoices/debit notes either during original investigation, reinvestigation, before NAA, or before the Tribunal. Consequently, there was no factual basis to alter the earlier ITC ratio or the profiteering computation. Ratio vs. Obiter: The conclusion that no adjustment to profiteering was warranted because no supporting documents were produced is ratio based on evidentiary absence; statements about the nature of the press release and the supplier's opportunity to produce evidence are part of the reasoning (ratio). Conclusion: The Tribunal refused to accept the supplier's contention regarding additional ITC entitlement in absence of documentation; maintained DGAP's quantified profiteering figure. Issue 3 - Scope of investigation: all supplies/SKUs vs. single-product complaint Legal framework: Section 171(2) empowers an authority to examine whether ITC availed or rate reduction has led to commensurate reduction in price of goods or services supplied by a registered person; Rule 133(5) supports broad investigatory scope where necessary. Precedent treatment: The Tribunal relied on statutory text and DGAP practice that a single GST return and a single ITC ledger entry preclude meaningful allocation of ITC to a single SKU; prior authorities had treated full-supplier investigation as appropriate. Interpretation and reasoning: A plain reading of Section 171(2) and Rule 129(2) indicates the power to examine all supplies of a registered person. Because GST returns aggregate supplies and ITC, investigations limited to one SKU cannot reliably determine pass-through of tax benefit. The Tribunal held that DGAP legitimately investigated all products supplied by the registered person; the complainant's limitation to one product did not constrict statutory investigatory scope. Ratio vs. Obiter: The holding that DGAP properly investigated all supplies is ratio; observations on practical infeasibility of earmarking ITC to an SKU form part of the core reasoning (ratio). Conclusion: Investigation of all supplies was lawful and proper; objection that probe should be limited to one product was rejected. Issue 4 - Rebuttable presumption and burden of proof on supplier to justify price increases Legal framework: Section 171 gives rise to a presumption that reduction in tax rate/availability of ITC should translate into commensurate price reduction; established case law clarifies this presumption is rebuttable by cogent evidence of legitimate commercial reasons for price changes. Precedent treatment: Tribunal relied on High Court guidance that suppliers can raise base prices for bona fide commercial reasons but must demonstrate those reasons with cogent, clear, unequivocal evidence; mere assertion is insufficient. Interpretation and reasoning: The Tribunal applied the rebuttable-presumption framework: once DGAP established that cum-tax prices did not reduce commensurately and base prices had increased, the burden shifted to the supplier to substantiate commercial reasons or subsequent ITC adjustments. The supplier failed to produce supporting documents for cost increases or ITC claims; hence the presumption stood unrebutted. Ratio vs. Obiter: The determination that the presumption remains unrebutted on the facts is ratio; reiteration of the evidentiary standard for rebuttal is authoritative guidance forming part of ratio. Conclusion: Supplier failed to discharge burden to rebut presumption; Tribunal accepted DGAP's findings as probative and conclusive on profiteering. Issue 5 - Liability to penalty under Section 171(3A) for profiteering occurring before its commencement Legal framework: Section 171(3A) (and associated Rule 133(3)(d)) prescribes penalty for contravention but has a stated commencement date. Interpretation and reasoning: The Tribunal observed that Section 171(3A) came into force from 01.01.2020, whereas alleged profiteering occurred during 01.07.2017-31.03.2019. Imposition of penalty would be retrospective and therefore impermissible. Ratio vs. Obiter: The conclusion that penalty cannot be imposed retrospectively is ratio based on temporal operation of statute and principle against retrospective penal liability. Conclusion: No show-cause notice for penalty under Section 171(3A) was required or issued because the statutory provision post-dated the period of alleged contravention.