TaxTMI 
TaxTMI 
2019 (5) TMI 1395
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....a. The above Applicant had alleged that the Respondent had charged 12% GST on the demand raised on 17.04.2018, i.e., after 25.01.2018, when the GST rate was reduced from 12% to 8% in case of affordable housing projects and also that the benefit of Input Tax Credit (ITC) had not been passed on to her by the Respondent by way of commensurate reduction in price. Along with the application, the above Applicant had submitted copies of her correspondences with the Respondent. 2. The above application was examined by the Standing Committee on Anti-profiteering in its meeting held on 13.12.2018 and its minutes were forward to the DGAP for detailed investigation under Rule 129 (1) of the CGST Rules, 2017. 3. The DGAP on receipt of the above minutes had called upon the Respondent vide notice dated 14.01.2019 to submit his reply as to whether he admitted that he had charged 12% GST post 25.01.2018 when the GST rate on affordable housing projects was reduced from 12% to 8%, vide Notification No 01/2018 Central Tax (Rate) dated 25.01.2018 and whether the ITC benefit was passed on to his recipients and also asked him to suo-moto determine the quantum of benefit which was not passed on. The....
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....espondent was not supplying any service to the above Applicant earlier and the price for the flats had been offered for the first time in the GST regime after considering the output tax and ITC implications in the GST regime. The flats sold by the Respondent were not under construction in the pre-GST regime and the construction had commenced only after the introduction of GST. 6. The Respondent had also stated that the Applicant was allotted the flat in the month of November, 2017 and hence, the Applicant was under an obligation to purchase the flat at the price offered by the Respondent for the first time under the GST regime. The flat sold by the Respondent had no price history of pre-GST regime and hence, the question of revising the price did not arise. He had also stated that the Applicant had been informed that the said project was launched after the introduction of GST and hence, the anti-profiteering provisions would not apply to the present case and that she was fully satisfied with the explanation of the Respondent and had withdrawn her complaint. He had also claimed that the Applicant was no more an allottee in the said project as she had surrendered the flat and ther....
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....mplementation of GST and was launched only in the GST regime and the agreement with the above Applicant was also executed on 17.11.2017. The DGAP on scrutiny of the documents (Home buyer's list and Agreement with the above Applicant dated 17.11.2017) submitted by the Respondent, has found that there was no price history of the units sold in the pre-GST era which could be compared with the post-GST base price to determine whether there was any profiteering or not. The Report has also stated that the draw of lots, allotment of units and receipt of payments had taken place post-GST and the construction also commenced in January, 2018 and therefore there was no pre-GST tax rate or ITC which could be compared with the post-GST tax rate and ITC. The DGAP's Report also stated that the Respondent must have taken into consideration the benefit of ITC available to him post implementation of GST, while fixing the base price. The Report has further claimed that the Respondent had reduced the GST rate from 12% to 8% w.e.f. 25.01.2018, in terms of Notification No. 01/2018 Central Tax (Rate) dated 25.01.2018. Therefore the DCAP in his Report had concluded that the provisions of Section 17....
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....that the service rendered by the Respondent by way of construction of the project "Habitat-78" was not in existence during the pre-GST regime and that the project was, in fact, launched only after the implementation of GST. Annexure 8 of the DGAP's Report clearly shows that buyer's agreement with the Applicant No. 1 for the Apartment No. A4806 was signed on 17th November 2017 where it was written that the allotment was made vide letter dated 01.11.2017. The buyer's agreement also states that 'the company had since registered the project under the provisions of the Real Estate (Regulation and Development) Act, 2016 read with the Rules notified there under by the Haryana Real Estate Regulatory Authority on 22.08.2017 under registration no. 78 of 2017'. The Annexure C - Schedule of Payments attached to this buyer's agreement also shows the payment description as follows:- Sr. No. Payment Description Amount in Rs. As per policy Due Dates 1 On application 128000 2 Within 15 days from the date of allotment 01.11.2017 25% of the total cost of the flat less application amount 51....