AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2020 (5) TMI 583
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....EFP 24-0501 in "Emerald Floors Premier' project of the Respondent. The above Applicant had also alleged that the Respondent had not passed on the benefit of Input Tax Credit (ITC) by way of commensurate reduction in the price of the above flat. The aforesaid reference was considered by the Standing Committee on Anti-profiteering, in its meeting held on 11.03.2019, wherein it was decided to forward the same to the DGAP to conduct detailed investigation in to the complaint according to Rule 129 (1) of the CGST Rules, 2017. 2. The above Applicant had furnished the following documents along with his application:- (a) Statement of Account as on 03.10.2018 for his unit. (b) Facts as known to him regarding the Project. 3. On receipt of the recommendation from the Standing Committee on Anti-profiteering, the DGAP had found from the application filed by the Applicant No. 1 that he had booked a flat in the Respondent's Project "Emerald Floor Premier", on 24.01.2010 i.e. in the pre-GST era. In terms of the instalment plan agreed upon, the above Applicant was to pay the consideration in 12 instalments and prior to coming in to force of the GST he had already paid 10 ins....
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....sed to the customers in the GST regime and had been passing on the benefit of 1.64% to the customers of the above Project. c) That as per the stay order granted by the Hon'ble High Court of Delhi in the case of M/s Abbott Healthcare Pvt. Ltd. v. Union of India in (W.P. (C) 4213/2019) = 2019 (5) TMI 563 - DELHI HIGH COURT the investigation should be restricted only to the unit in respect of which the complaint had been filed or same class of buyers and not to the whole Project. d) That the Respondent has made an estimated computation of the additional benefit which has accrued to him keeping in view two factors namely (a) benefit of Transitional Stock carried forward in TRAN-1 Form and (b) Saving of taxes on goods/services to be purchased in the GST regime for completion of the Project. This computed benefit has been or would be distributed among the units booked in the pre-GST regime but delivered under the post-GST regime. Details of benefit passed on to the customers were mentioned in his home-buyer's data. e) That the methodology of comparing the ratio of ITC to the turnover for the pre-GST and the Post GST period, adopted to calculate profiteering by ....
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.... go beyond the application submitted by the above Applicant as per the Orders of this Authority passed in case No. 01/2018 and 05/2018. As there was only one applicant who had filed the complaint, the DGAP should not suo-moto assume jurisdiction with regard to other recipients (home-buyers) of the Respondent. i) That he has decided to pass on the benefit of 4.93% to his customers, despite his earlier decision to pass benefit of 1.64% as communicated in his submissions dated 15.05.2019 and 18.07.2019, wherein he has worked out a net negative benefit post-GST. The benefit has been passed on or would be passed on by way of commensurate reduction in prices. 7. The Respondent has also submitted the following documents/information to the DGAP vide his above mentioned letters/e-mails during the course of the investigation:- (a) Copies of GSTR-1 Returns for the period from July, 2017 to March, 2019. (b) Copies of GSTR-3B Returns for the period from July, 2017 to March, 2019. (c) Electronic Credit Ledger for the period from July, 2017 to March, 2019. (d) Copies of VAT & ST-3 Returns for the period from April, 2016 to June, 2017. (e) C....
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....uld be required to be reversed by the Respondent, if such units would remain unsold at the time of issue of Completion Certificate (CC), in terms of Section 17 (2) & Section 17 (3) of the Central Goods and Services Tax Act, 2017 which read as under:- "17 (2) Where the goods or services or both are used by the registered person partly for effecting taxable supplies including zero-rated supplies under this Act or under the Integrated Goods and Services Tax Act and partly for effecting exempt supplies under the said Acts. the amount of credit shall be restricted to so much of the input tax as is attributable to the said taxable supplies including zero-rated supplies. 17 (3) The value of exempt supply under sub-section (2) shall be such as may be prescribed and shall include supplies on which the recipient is liable to pay tax on reverse charge basis, transactions in securities, sale of land and, subject to clause (b) of paragraph 5 of Schedule II, sale of building." Therefore, the DGAP has claimed that the ITC pertaining to the unsold units was outside the scope of this investigation and the Respondent was required to recalibrate the selling prices of such units t....
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....tigation. The present case was related to supply of service and the investigation had been kept limited to one project only, where benefit of ITC was to be passed on to all the beneficiaries. 13. The DGAP has also observed from the home-buyer's data submitted by the Respondent that the Respondent's Project "Emerald Estate" has different categories of units viz. Emerald Floors Premier, Emerald Estate, Emerald Estate-School and Emerald Estate EWS. The EWS units were not categorised as affordable houses and same rate of GST had been charged across all categories. 14. The DGAP has also contended on the claim of the Respondent that he had decided to pass on benefit to the tune of 1.64% and 4.63%, to the customers, and would provide details of such benefit passed on but the Respondent had not explained the basis of his calculations and reasons for difference in his own calculations. In the absence of basis of calculations, there was no reason to admit his claim that he has been passing on the benefit already, however the benefit as claimed has been mentioned in the home-buyers list. 15. The DGAP has further contended that the Respondent has claimed that there was a net negative ....
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....nt to the works contractors to claim WCT credit for the Project in his VAT Returns submitted to his office. Moreover, in terms of Section 42 of the Haryana VAT Act, 2003 and the relevant Rules, the liability to pay tax was jointly upon the developer (Respondent) and his sub-contractors. The Respondent was eligible to claim the ITC of WCT (VAT) credit, even if not paid directly by him, only if, the following conditions were fulfilled:- a. Tax has been paid by his sub-contractor on the sale of goods involved in execution of the works contract. b. The assessment of such tax has become final and c. ITC of such VAT has not been availed by his sub-contractor. The DGAP has alleged that the Respondent did not submit any evidence in this regard to substantiate his claim of ITC of WCT (VAT) credit. Therefore, the Respondent was not eligible to claim this amount as ITC. 19. The DGAP has further informed that post-GST the Respondent could avail the ITC on GST paid on all the inputs and input services including the sub-contracts. The Respondent vide his submission dated 22.08.2019 has submitted reconciliation of turnover and CENVAT/ITC for all his projects, as i....
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....,00,22,48,168 6. Total Saleable Residential Area in sq. ft. (F) 21,51,306 21,51,306 7. Sold Area Relevant to Turnover in sq. ft. (G) 9,62,588 20,83,211 8. ITC proportionate to Sold Area (H)= (C) or (D) * G/F 2,55,38,626 21,02,65,586 9. Ratio of CENVAT/VAT/ITC to Turnover (I=H/E*100) 9.08% 20.98% 21. The DGAP has argued from the Table-13' that the ITC as a percentage of the total turnover that was available to the Respondent during the pre-GST period (April, 2016 to June, 2017) was 9.08% and during the post-GST period (July, 2017 to March, 2019), it was 20.98% which clearly confirmed that post-GST, the Respondent has been benefited from additional ITC to the tune of 11.90% [20.98% (-) 9.08%] of the turnover. 22. The DGAP has further argued that the Central Government, on the recommendation of the GST Council, has levied 18% GST on construction service (after one third abatement towards value of land, effective GST rate was 12% on the gross value), vide Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017. The Respondent vide his submissions dated 18.07.2019 has stated that the impugned Project had different categories of ....
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....ome buyers during the period from 01.07.2017 to 31.03.2019, the amount of benefit of ITC not passed on or in other words, the profiteered amount has been quantified by the DGAP as Rs. 13,35,79,636/- which includes GST @ 12%, on the base profited amount of Rs. 11,92,67,532/-. The buyer and Unit No. wise break-up of this amount has been given in Annexure-18 of the DGAP's Report. This amount is inclusive of Rs. 1,04,734/-(including GST @ 12% on the base amount of Rs. 93,512/) which is the profiteered amount in respect of the Applicant No. 1, mentioned at Serial No. 318 of Annesure-18 of the Report. It was also intimated by the DGAP that the Respondent has supplied the construction service in the State of Haryana only. 25. The DGAP has also submitted that the above computation of profiteering was with respect to 1239 buyers, whereas the Respondent has booked 1500 units in the pre-GST period, however, demands were raised only on 687 buyers who had booked the units and the net total of the demands raised from such units had only been taken into consideration, Similarly, in the post-GST period, demands were raised on 1239 buyers who had booked the units, and the net total of demands ra....
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.... when the construction of the Project was yet to be completed. He has further stated that the provisions of Section 171 (1) of the Central Goods and Services Tax Act, 2017 requiring that a reduction in rate of tax on any supply of goods or services or the benefit of ITC shall be passed on to the recipient by way of commensurate reduction in prices", have been contravened by the Respondent in the present case. 28. The above Report was considered by this Authority in its meeting held on 25.09.2019 and it was decided that the Applicants and the Respondent be asked to appear before this Authority on 22.10.2019. The Respondent was issued notice on 26.09.2019 to explain why the above Report of the DGAP should not be accepted and his liability for violating the provisions of Section 171 of the CGST Act, 2017 should not be fixed. During the course of the hearings no one appeared for the Applicants and the Respondent was represented by Sh. Manish Gaur, Advocate, Sh. Sanjeev Sharma, DGM-Tax, Sh. Tarun Trehan, CA, Sh. R. Chitkara, Advocate and Ms. Disha, Advocate, The Respondent has filed his written submissions dated 03.12.2019, 17.12.2019, 23.01.2020 and 11,02.2020. The main issues raise....
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....Velbon Vitrified Tiles Pvt. Ltd. 2019 (3) TMI 370 NAA. 5. Fx Enterprise Solutions India Pvt. Ltd. and Ors. v. Hyundai Motor India Limited 2017 Comp 586 (CCI) = 2017 (6) TMI 1316 - COMPETITION COMMISSION OF INDIA. 31. That the CGST Act or the Rules did not provide the procedure and mechanism for determination and calculation of profiteering. In the absence of the same, the calculation and methodology used in the Report was arbitrary and in violation of the principles of natural justice. The Respondent has also added that as per Rule 126, this Authority has power to determine the methodology and procedure for determination as to whether the reduction in the rate of tax on the supply of goods or services or the benefit of ITC has been passed on by the registered person to the recipients by way of commensurate reduction in prices but, as on date, CGST Rules have not prescribed any procedure/ methodology/ formula/ modalities for determination/ calculation of 'profiteering'. The Methodology and Procedures, 2018 issued on 19.07.2018 by this Authority under Rule 126 only provided the procedure pertaining to investigation and hearing. However, no method/formula has been notified....
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....ssed on till 30.04.2019 Actual Benefit passed on till 25.11.2019 Balance GST benefit to be passed on Rs. 2,44,51,98/- Rs. 7,51,18,802/- Rs. 19,53,242/- 34. It was further submitted that the DGAP, being a fact-finding authority, should have verified the details submitted by the Respondent and should have reduced the demand to the extent of benefit claimed to have been passed on. However, the DGAP has chosen to ignore the details due to which the demand has been inflated in the Report. 35. That even after applying the methodology adopted by the DGAP in his Report, the calculations made by the DGAP of the alleged profiteering were incorrect due to the following reasons:- 1. VAT credit should have been considered in calculating the total credit pre-GST; 2. WCT (VAT) rebate should have been considered in calculating the total credit pre-GST; 3. The demand notes raised by the Respondent formed part of total turnover for the period under consideration and they should not have been ignored; 4. For GST period, the DGAP has considered saleable area in "Area sold relevant to turnover for even those customers to whom no demand notes were....
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....strative positions and could not be said to have professional qualification of law along with experience in practicing the same. Thus, the Technical Members would not be able to interpret the law on a regular basis and adjudicate the cases properly. In his regard, the Respondent has quoted the law settled in the cases of Madras Bar Association v. Union of India 2014 (308) ELT 209 (SC) = 2014 (9) TMI 821 - SUPREME COURT, Union of India v. R. Gandhi President Madras Bar Association (2010) 11 SCC 1 = 2010 (5) TMI 393 - SUPREME COURT, Rojer Mathew v. South Indian Bank Limited and Ors. 2018 (13) GSTL 129 (SC) = 2018 (5) TMI 726 - SUPREME COURT, Gujarat Urja Vikas Nigam Limited v. Essar Power Limited (2016) 9 SCC 103 = 2016 (8) TMI 1495 - SUPREME COURT, L. Chandra Kumar v. Union of India (1997) 3 SCC 261 = 1997 (3) TMI 90 - SUPREME COURT and R.K. Jain v. Union of India (1993) 4 SCC 119 = 1993 (5) TMI 23 - SUPREME COURT. The Respondent has also submitted that due to the lack of a Judicial Member in the Authority, exercising of judicial/quasi-judicial powers was against the basic structure of the Constitution of India and it took away the independence of judiciary and was against the rule ....
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....and turnover for other services provided by the Respondent could not be accounted for in the turnover for the obvious reason that it would distort the profiteering calculation. ii. Saleable area in Area sold relevant to turnover for even those customers, to whom no demand notes were raised, has been considered:- The DGAP has stated that the calculation of profiteering has been done on total area sold only. Only the ITC proportional to relevant sold area has been considered to calculate the quantum of profiteering. iii. The Cenvat Credit of Service Tax paid on input services, as also ITC credit of GST availed has not been factored in the correct quantum of common credit on account of corporate expenses:- In this regard, the DGAP has reported that the last date of submission of the investigation Report was 24.09.2019. Accordingly, the preparation of draft Report had started at least one week before the last date of submission of the Report. In the instant case all the documents submitted on or before 16.09.2019 were taken into consideration for the purpose of finalisation of calculation of profiteering and Report. Any submission made on that day or....
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....tomers. However, the same was rejected by DGAP on frivolous grounds and by disregarding the fact of actual disbursement of GST benefit by Respondent to its customers. The Respondent submitted that the only requirement was to pass on the benefit to the customers, which the Respondent did in the present case. Thus, benefit to that extent should be extended to the Respondent. During the course of hearing before NAA also, the Respondent has substantiated the fact of actual disbursal of GST benefit, through the relevant documents, listed below - • Statement of Accounts (SOAs) of eligible customers, showing credit by Respondent of GST benefit to said customers. In case, the GST benefit shown in SOA was settled by cash, the copy of Cheque, along with the bank statement of Respondent, showing debit in its account to that extent. In case, the balance of GST benefit shown in SOA was adjusted as credit in respect of some other services provided by Respondent like maintenance etc., the SOAs of said other services, showing appropriate adjustments. However, the same was not considered by DGAP in its letter dated 24.01.2020 and the rebuttals/observations was gi....
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....bmits that the correct quantum of credit of service tax paid on input services, as also ITC credit of GST availed should be considered for the purpose of computing profiteering, if any. 42. We have carefully considered all the submissions filed by the Applicants, the Respondent and the other material placed on record and find that the Applicant No. 1, vide his complaint dated 17.01.2019 had alleged that the Respondent was not passing on the benefit of ITC to him on the Flat No. EFP 24-0501, which he had purchased in the "Emerald Floors Premium" Project being executed by the Respondent in Sector-65, Gurugram, in spite of the fact that he was availing ITC on the purchase of the inputs at the higher rates of GST which had resulted in benefit of additional ITC to him and was also charging GST from him @12%. This complaint was examined by the Standing Committee on Anti-Profiteering in its meetings held on 11.03.2019 and was forwarded to the DGAP for investigation who vide his Report dated 24.09.2019 has found that the ITC as a percentage of the total turnover which was available to the Respondent during the pre-GST period was 9.08% and during the post-GST period this ratio was 20.98%....
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....appointed as members of the Committee. The reconstituted Committee had examined the above complaint in its meeting held on 11.03.2019 and recommended it for detailed investigation vide minutes of its meeting held on 11.03.2019, which have been attached as Annexure-1 by the DGAP with his Report dated 24.09.2019. Perusal of the minutes shows that the above complaint was mentioned at Sr. No. 11 of Annexure 1-A and has been duly considered and referred for detailed investigation to the DGAP under Rule 129 (1) of the above Rules. Therefore, it is evident that there was neither legally constituted Standing Committee on Anti-Profiteering between the period from 22.01.2019 to 20.02.2019, as per Rule 123 (1) of the CGST Rules, 2017 nor there was quorum to hold meetings of the above Committee, in view of which the above complaint could not have been examined by the above Committee. It is further evident that the above complaint was considered by the Committee on 11.03.2019 within a period of 20 days from the date of its constitution on 20.02.2019. Therefore, the above complaint has been considered by the above Committee within a period of 2 months prescribed under Rule 128 (1) of the above R....
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....circumscribed by any restriction to the effect that it cannot examine those cases in respect of which no complaint has been made. It is also apparent from the provisions of Rule 129 (1) that the DGAP shall investigate and collect necessary evidence in all such cases in which rate of tax has been reduced or the benefit of ITC has been granted which is required to be passed on to the buyers and submit his Report to this Authority under Rule 129 (6) and hence he is bound to investigate all those cases where benefit of ITC or tax rate is required to be passed on. 46. It would also be pertinent to mention here that the Government of India, Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs vide its Office Order No. 05/Ad.IV/2018 dated 12.06.2018 in pursuance of the Government of India (Allocation of Business) 34tn Amendment Rules, 2018 has assigned the following duties to the DGAP:- a) Conduct of investigation to collect evidence necessary to determine whether the benefit of reduction in the rate of tax on any supply of goods or services or the benefit of input tax credit has been passed on to the recipient by way of commensurate reductio....
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....NTI-PROFITEERING AUTHORITY. However, in the above case the Applicant had been granted the benefit of ITC and hence there was no ground to investigate the other similar cases as the Respondent had passed on the benefit of ITC whereas in the present case the Respondent has not passed on the benefit of ITC and hence he has been rightly investigated by the DGAP in respect of all the flat buyers to whom he has denied the benefit. Hence, the above case cannot be relied upon in the facts of the present case. In the case of Rishi Gupta and another v. M/s Flipkart Internet Pvt. Ltd., decided by this Authority on 18.07.2018 vide Case No. 5/2018 = 2018 (7) TMI 1490 - NATIONAL ANTI-PROFITEERING AUTHORITY. the Respondent was only an e-commerce platform and was not supplier of the complained product and hence there was no ground to investigate him in respect of the other products. Therefore, the above case does not support the case of the Respondent. In the case of Kerala State Screening Committee on Anti-Profiteering and another v. M/s Pulimoottill Silks decided on 04.02.2019 by this Authority vide Case No. 8/2019 = 2019 (2) TMI 296 - THE NATIONAL ANTI-PROFITEERING AUTHORITY, it was found that ....
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....ed amount has to be computed for which investigation has to be conducted in respect of all such products/units/services. What would be the 'profiteered amount' has been clearly mentioned in the explanation attached to Section 171 which is quoted as under:- "Explanation:- For the purpose of this section, the expression "profiteered" shall mean the amount determined on account of not passing the benefit of reduction in rate of tax on supply of goods or services or both or the benefit of input tax credit to the recipient by way of commensurate reduction in the price of the goods or services of both." These benefits can also not be passed on at the entity/organisation/branch level as the benefits have to be passed on to each and every buyer at each product/unit/service level by treating them equally. The above provision also mentions "any supply" which means each taxable supply made to each buyer thereby making it evident that a supplier cannot claim that he has passed on more benefit to one customer therefore he would pass less benefit or no benefit to another customer than what is actually due to that customer. Each customer is entitled to receive the benefit of tax reduc....
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....uidelines can be framed for determining the benefit of additional ITC which has to be passed on to the buyers of the units. Moreover, this Authority under Rule 126 has been empowered to 'determine Methodology & Procedure and not to 'prescribe' it. Similarly, the facts of the cases relating to the sectors of FMCGs, restaurant service, construction service and cinema service are completely different from each other and therefore, the mathematical methodology employed in the case of one sector cannot be applied in the other sector. Moreover, both the above benefits have been given by the Central as well as the State Governments as a special concession out of their tax revenue in the public interest and hence the suppliers are not required to pay even a single penny from their own pocket and therefore, they are bound to pass on the above benefits as per the provisions of Section 171 (1) which are abundantly clear, unambiguous, mandatory and legally enforceable. The above provisions also reflect that the true intent behind the above provision, made by the Central and the State legislatures in their respective GST Acts is to pass on the above benefits to the common buyers who bear the bu....
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....by the Respondent during the pre and the post GST periods to achieve a particular stage of construction. Therefore. there is correlation between the ITC and the turnover on the basis of ratios of which the amount of benefit can be computed keeping in view the area purchased by a buyer and the price paid by him in the post-GST period. Since, the benefit is to be passed on the entire project any more or less passing of the benefit periodically by the Respondent can always be adjusted at the time of completion of the project. However, the benefit has to be passed on every month as the Respondent is availing the ITC which has become available to him post-GST every month to discharge his output GST liability while filing his GST Returns. The Respondent cannot force his buyers to wait for the benefit till the completion of the project which may take further 3-4 years when he is enjoying the benefit every month and utilising their share of benefit in his business. The above methodology has been applied by the DGAP in all such previous cases of real estate sector and has been approved by this Authority vide its orders passed in such cases. The above methodology is reasonable, justified, ac....
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.... by him during the pre-GST period should have been considered in calculating the total credit pre-GST. In this regard perusal of the Report dated 24.09.2019 furnished by the DGAP shows that the Respondent was eligible to claim ITC on the VAT paid by him on the inputs purchases made by him. However, in his submission dated 18.07.2019 attached as Annexure-10 with the Report, the Respondent has claimed VAT credit of Rs. 1259/- and turnover of Rs. 9,591/- in respect of the above Project for the period from April, 2017 to June, 2017, whereas no VAT turnover and VAT credit has been claimed for the period from April, 2016 to March, 2017. It is also revealed that the total VAT paid on the purchases made by the Respondent in the State amounted to Rs. 2,67,07,322/- on all the projects being executed by the Respondent in Haryana and not on the impugned project alone. This amount was different from the amount which was claimed by the Respondent in his VAT Returns. The Respondent has also not supplied details of the breakup of the purchases made in respect of the complained Project to justify either the credit of VAT or the VAT turnover. Since, there is no direct co-relation between the turnove....
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.... petty figures. The DGAP had sought clarification from the Respondent in this regard in reply to which the Respondent has intimated vide his reply dated 17.09.2019 attached as Annexure-15 that such petty demand notes were issued due to rounding off the adjustments and the amount did not pertain to the demand notes raised on the buyers. The Respondent had also informed that some petty demands were raised on account of services such as delayed payment charges or transfer charges and were not on account of the basic cost of the units. Therefore, the DGAP has excluded those demand notes which were showing negative values or had petty demands upto 1,000/- to get a more accurate figure of turnover. It is also apparent from the record that the additional ITC was available for providing the main service i.e. construction of residential complexes and turnover for other services provided by the Respondent was also available which could not be accounted for in the turnover as it would distort the profiteering calculation. The reasons given by the DGAP for not taking in to account the negative and petty amounts shown in the demand notes are reasonable and justified as the above notes do not co....
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.... be appropriate to mention that the Respondent has included the credit of WTC (VAT) and VAT while computing the ratio of ITC to turnover during the pre-GST period which he has been held not entitled to claim as per the reasons detailed supra. The figures of total turnover, total area sold relevant to turnover and ITC relevant to turnover have also been taken by the Respondent without furnishing evidence and hence, the ratio of ITC to turnover computed by the Respondent for the pre and post-GST periods and the profiteered amount are wrong and hence. the same cannot be relied upon. 59. The Respondent has also cited the law settled in the case of Santosh Kumari and others v. M/s Aster Infrahome Pvt. Ltd., decided on 19.11.2019 by this Authority vide Case No. 57/2019 = 2019 (11) TMI 1082 - NATIONAL ANTI-PROFITEERING AUTHORITY, Case No. 30/2019 decided on 08.05.2019 by this Authority of Pallavi Gulati and another v. M/s Puri Constructions Pvt. Ltd. and Case No. 49/2019 decided on 14.10.2019 = 2019 (5) TMI 785 - NATIONAL ANTI-PROFITEERING AUTHORITY in respect of Prasanth Nandulamattam and another v. M/s. Bhartiya City Developers Pvt. Ltd. = 2019 (10) TMI 863 - NATIONAL ANTI-PROFITEERI....
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.... but they are rare and are exceptions It is also noteworthy here that there are several other authorities like the Telecom Regulatory Authority of India (TRAI); Securities and Exchange Board of India (SEBI); National Medical Commission (earlier, Medical Council of India); Institute of Chartered Accountants of India (ICAI); Central Consumer protection Authority and the Authorities on the Advance Rulings on the Central Excise and the Goods and Services Tax which do not have a Judicial Member. In this connection it is also submitted that the Parliament and all the State Legislatures (31 States and Union Territories), the GST Council which is a constitutional body created under the 101st Amendment of the Constitution and the Central and the State Governments in their wisdom have not found it necessary to provide for a Judicial Member in this Authority due to its highly specialized and technical functions. 61. Similarly, in the case of Madras Bar Association v. Union of India 2014 (308) ELT 209 (SC) = 2014 (9) TMI 821 - SUPREME COURT, the constitutional validity of the National Tax Tribunal Act 2005 and the Constitution (Forty-Second) Amendment Act, 1976 was challenged on the ground ....
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.... the Union Cabinet keeping the requirements of the above mandate of the GST law in perspective. Moreover, the orders passed by this Authority are further subject to the judicial review and therefore, the Respondent should not have any grievance on this account. Therefore, the above contentions of the Respondent are not tenable. 64. The Respondent has also quoted the judgements passed in the following cases to support his above contention:- (i) Rojer Mathew v. South Indian Bank Limited and Ors. 2018 (13) GSTL 129 (SC) = 2018 (5) TMI 726 - SUPREME COURT. (ii) Gujarat Urja Vikas Nigam Limited v. Essar Power Limited (2016) 9 SCC 103 = 2016 (8) TMI 1495 - SUPREME COURT. (iii) L. Chandra Kumar v. Union of India (1997) 3 SCC 261 = 1997 (3) TMI 90 - SUPREME COURT and R. K. Jain v. Union of India (1993) 4 SCC 119 = 1993 (5) TMI 23 - SUPREME COURT. However, it is respectfully submitted that as has been stated in para supra the law pronounced in the above cases is not relevant in the facts of the present case and hence, the law settled in the above cases in not being relied upon. 65. The Respondent has also alleged that the DGAP has wrongly included the GST....
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....of the above facts that the Respondent has benefited from the additional ITC to the extent of 11.90% of the turnover during the period from July, 2017 to March, 2019 and hence the provisions of Section 171 of the CGST Act, 2017 have been contravened by the Respondent as he has not passed on the above benefit to his customers and thus he has profiteered an amount of Rs. 13,35,79,636/- inclusive of GST @ 12% on the base profiteered amount of Rs. 11,92,67,532/-. Further, the Respondent has realized an additional amount of Rs. 1,04,734/- which includes both the profiteered amount @ 11.90% of the taxable amount (base price) and 12% GST on the said profiteered amount from the Applicant No. 1. He has further realized an additional amount of Rs. 13,34.74,902/- which includes both the profiteered amount @ 11.90% of the taxable amount (base price) and 12% GST on the said profiteered amount from the 1,238 flat buyers other than the Applicant No. 1. The details of the profiteered amount and the buyers have been mentioned by the DGAP in Annexure-18 of his Report dated 24.09.2019. These buyers are identifiable as per the documents placed on record and therefore, the Respondent is directed to pas....