TaxTMI 
TaxTMI 
2022 (5) TMI 783
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....way of commensurate reduction in price and if so, to suo moto determine the quantum thereof and indicate the same in his reply to the Notice as well as furnish all supporting documents. Vide the said Notice, the Respondent was also given an opportunity to inspect the non-confidential evidences/information furnished by the Applicant No. 1 during the period 10.08.2020 to 12.08.2020. However, the Respondent did not avail of this opportunity. 2. The DGAP has also stated that the period covered by the current investigation was from 01.07.2017 to 30.06.2020. 3. Further, the DGAP has reported that the time limit to complete the investigation was 16.01.2021. However, in terms of Notification 35/2020-Central Tax dated 03.04.2020 where, any time limit for completion/furnishing of any Report, had been specified in, or prescribed or notified under the CGST Act, 2017 which falls during the period from the 20th day of March, 2020 to the 29th day of June, 2020, and where completion or compliance of such action had not been made within such time, then, the time limit for completion or compliance of such action, should be extended upto the 30.06.2020. Further, vide Notification 55/2020-Central Ta....
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....ord had been carefully examined. The main issues for determination were: - (i) Whether there were benefit of reduction in rate of tax or ITC on the supply of Construction S (ii) Service by the Respondent after implementation of GST w.e.f. 01.07.2017 and if so, (iii) Whether the Respondent passed on such benefit to the recipients by way of commensurate reduction in price, in terms of Section 171 of the CGST Act, 2017. 9. The DGAP has further stated para 5 of Schedule-III of the CGST Act, 2017 (Activities or Transactions which should be treated neither as a supply of goods nor a supply of services) which reads as "Sale of land and, subject to clause (b) of paragraph 5 of Schedule II, sale of building". Further, clause (b) of Paragraph 5 of Schedule II of the CGST Act, 2017 reads as "(b) construction of a complex, building, civil structure or a part thereof, including a complex or building intended for sale to a buyer, wholly or partly, except where the entire consideration has been received after issuance of completion certificate, where required, by the competent authority or after its first occupation, whichever is earlier". Thus, the ITC pertaining to the residential units ....
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....NVAT/ VAT on Purchase of Inputs (C)=(A+B) 4,80,360 - 4. ITC of GST Availed (D) - 1,10,82,436 5. Turnover for Residential Flats as per Home Buyers List (E) 4,97,09,637 29,65,75,363 6. Turnover for Commercial as per Home Buyers List (F) 12,00,000 5,47,27,824 7. Total Turnover for Flats & Commercial as per Home Buyers List for Residential Flats (G) = (E + F) 5,09,09,637 35,13,03,187 8. Total Saleable Area for Residential Flats (in SQMT) (H) 12.202 12,202 9. Total Saleable Area for Commercial (in SQMT) (I) 3,138 3,138 10. Total Saleable Area for Residential Flats & Commercial (in SQMT) (J) = (H+I) 15,340 15,340 11. Total Sold Area for Residential Flats (in SQMT) relevant to turnover (K) 3,490 10,304 12. Total Sold Area for Commercial (in SQMT) relevant to turnover (L) 116 1,388 13. Total Sold Area for Residential Flats & Commercial (in SQMT) relevant to turnover (M) = (K+L) 3,606 11,692 14. Relevant ITC [(N)= (C)*(M)/(J)] 1,12,917 84,47,070 Ratio of Input Tax Credit Post-GST [(O)=(N)/(G)*100] 0.22% 2.40% 11. The DGAP has further stated that from the above Table-A', it was clear that the ITC as a percentage of the turnover that was ....
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....such additional ITC was required to be passed on to the recipients. 14. The DGAP has further reported that having established the fact of profiteering, the next step was to quantify the same. On the basis of the aforesaid CENVAT/ITC availability pre and post-GST and the details of the amount collected by the Respondent from the Applicant No. 1 and other home buyers during the period 01.07.2017 to 30.06.2020, the amount of benefit of ITC that needed to be passed on by the Respondent to the recipients or in other words, the profiteered amount came to Rs. 85,77,419/- for residential flats and commercial shops, which included 12% GST on the base profiteered amount of Rs. 76,58,409/-. This amount was inclusive of profiteered amount of Rs. 22,292/-(including GST) which was the profiteered amount in respect of Applicant No. 1 mentioned at serial no.93 of the DGAP's Report. 15. The DGAP has also reported that on the basis of the details of outward supplies of the Construction Service submitted by the Respondent, it was observed that the service had been supplied in the State of Gujarat only. 16. Further, the DGAP has submitted that the benefit of additional ITC of 2.18% of the taxab....
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....en submissions which had been filed on 27.02.2021 wherein the Respondent has submitted:- i. That the Standing Committee had erred in referring the matter to the DGAP for further investigation:- a. As per Rule 128(1) of the CGST Rules, 2017 on receipt of an application, the Standing Committee should examine the accuracy and adequacy of the evidence provided in the application to determine whether there was prima facie evidence to support the claim of the Applicant No. 1 that the benefit of reduction in the rate of tax on any supply of goods or services or the benefit of ITC had not been passed on to the recipient by way of commensurate reduction in prices. b. In the present case, the Standing Committee had erred in referring the matter to the DGAP for further investigation. This was for the reason that the application filed by the Applicant No. 1 was only on basis of one ground that the Respondent had not passed on the benefit on account of increased eligibility of ITC in GST regime. Accordingly, it was submitted that the said fact could not be considered as a prima facie for evidence to say that the Respondent had profiteered post GST regime. c. As per Section 171 of CGST A....
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....f the CGST Rules contains provisions regarding the examination of application by the Standing Committee and Screening Committee. The extract of the Rule has been provided below for quick reference: "128. Examination of application by the Standing Committee and Screening Committee:- (1) The Standing Committee shall, within a period of two months from the date of the receipt of a written application, in such form and manner as may be specified by him from an interested party or from a Commissioner or any other person. examine the accuracy and adequacy of the evidence provided in the application to determine whether there is prima facie evidence to support the claim of the Applicant that the benefit of reduction in the rate of tax on any supply of goods or services or the benefit of ITC have not been passed on to the recipient by way of commensurate reduction in prices. (2) All applications from interested parties on issues of local nature shall first be examined by the State level Screening Committee and the Screening Committee shall, upon being satisfied that the supplier has contravened the provisions of section 171 forward the application with its recommendations to the Stan....
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....mmittee to conduct a detailed Investigation in the matter of Applicant No. 1. It was also submitted that the DGAP could not exceed his Jurisdiction by submitting its findings for other unit buyers and recipients who had not filed any application without any reference from the Authority in this regard. h. An application filed by a dissatisfied Applicant No. 1 might be compared to a Show Cause Notice for a tax proceedings wherein the assessee were required to show cause as to why tax, interest, penalty, etc. should not be levied and collected from him. It was settled principle of law that an Order adjudicating a Show Cause Notice could not travel beyond the scope of a Show Cause Notice. In this regard reliance was placed on the case of Toyo Engineering India Limited vs. CC, Mumbai reported at 2006 (201) E.L.T. 513 (S.C.) wherein the Hon'ble Supreme Court held that the department could not travel beyond the Show Cause Notice. i. In the case of Reckitt & Colman of India Ltd. vs. CCE, reported at 1996 (88) ELT. 641 (S.C.) it was held by the Honble Supreme Court that the Revenue Authorities could not make an Order against an assessee that was based on allegations and grounds that....
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.... on the supply of goods or services or the benefit of input tax credit has been passed on by the registered person to the recipient by way of commensurate reduction in prices." d. As per Rule 126, the Authority had the power to determine the methodology and procedure for determination as to whether the reduction in rate of tax on the supply of goods or services or the benefit of ITC had been passed on by the registered person to the recipient by way of commensurate reduction in prices. It was pertinent to note that as on date, CGST Rules had not prescribed any procedure methodology formula/modalities for determining/calculating profiteering. e. This Authority under the Goods and Service Tax Methodology and Procedures, 2018 issued on 19.07.2018 by the Authority only provides the procedure pertaining to investigation and hearing. However, no method/formula had been notified/prescribed pertaining to calculation of profiteering amount. f. The Rule 127 of the CGST Rules, provides for the duties of the Authority whereby it could order reduction in prices, return to the recipient of an amount equivalent to the amount not passed us benefit, imposition of penalty and cancellation of r....
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....Ltd. vs. UOI, reported at 1997 (89) E.L.T. 28 (Mad), where the Hon'ble Madras High Court held that in absence of machinery provisions pertaining to determination and adjudication upon a claim or objection, the statutory provision would not be applicable. I. In the case of Commissioner of Income Tax, Bangalore vs. B.C. Srinivasa Setty, reported at (1981) 2 SCC 460, the Hon'ble Supreme Court held that charging section were not attracted where corresponding computation provision were inapplicable. It was submitted that relying on the case of BC Srinivas Shetty, Allahabad HC in the case of Samsung (India) Electronics Pvt. Ltd. vs. Commissioner of Commercial Taxes U.P. Lucknow, reported at 2018 [11] G.S.T.L. 367 observed that in the absence of any procedure or provision in the UP VAT Act, 2008 Act conferring such Authority, in the case of a sale of composite packages bearing a singular MRP, the authorities under the Act could not possibly assess the components of such a composite package separately. Such an exercise, if undertaken, would also fall foul of the principles enunciated by the hon'ble Supreme Court. In this regard, reliance was also placed on the case of Union o....
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....y, calculating profiteering on the basis of turnover could not reflect the correct outcome for the Respondent. c) To understand the above submission through an illustration, a case was cited as an example wherein the developer floats 25/75 scheme for one of its projects which was launched under the pre-GST regime. As per the scheme, the unit buyers/applicants were required to pay 25 per cent of the apartment's cost at the time of booking and the rest after possession. The possession was to be provided in the GST regime. In such a case, the quantum of ITC would be proportionately higher in the initial period when the construction was in full swing, as compared to the turnover which would be limited to the 25 per cent of total price as per the scheme. Accordingly, the ratio of ITC to turnover would not reflect the correct position of benefit accrued to the developer, when calculated for a limited period of time, instead of the duration of the project. d) In essence, the following points were totally ignored by the DGAP while calculating alleged profiteering based on comparison of ratio of ITC to turnover for pre-GST period and GST period- (i) Construction Project Life cycle....
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....unt itself. v. That the calculation made by the DGAP of the alleged profiteering was incorrect. On application of correct calculation the alleged profiteering figures were less than costs incurred by the respondent:- a) Applying the methodology adopted by the DGAP in his Report, it was submitted that the calculations made by the DGAP of the alleged profiteering were incorrect. b) Attention was invited to the calculations made by the DGAP of the alleged profiteering percentage in his Report. c) That the comparison of ratio of ITC to turnover for pre GST period and GST period was not the correct methodology for computing profiteering under Section 171 of CGST Act as it suffered from various inconsistencies and assumptions discussed therein That this methodology assumed that uniform expenses were incurred throughout the project lifecycle and that taxable turnover would also be uniform, which practically varied a lot given the market conditions and was objectively, an incorrect assumption to make. Presuming the same to be true and applying the same to the present case, the assumption of uniformity of expenses and turnover was qua the pre-GST period and the GST period, as a whol....
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....ondent that the Report could not go beyond the application submitted by the Applicant No. 1 vide letter dated 27.01.2019, the DGAP has clarified that as per Section 171 (1) of the CGST Act, 2017 which itself states that "Any reduction in rate of tax on any supply of goods or services or the benefit of ITC should be passed on to the recipient by way of commensurate reduction in prices" Thus, the legal requirement was abundantly clear that in the event of a benefit of ITC or reduction in rate of tax, there must be a commensurate reduction in prices of any supply of goods or services. It might be noted that Rule 129 (2) authorities the DGAP to conduct investigation on any supply of goods or services. Similarly, Section 171 (2) empowers this authority to examine whether the ITC availed or reduction in tax rate had actually resulted in commensurate reduction in the prices of the goods or services or both supplied by him. Hence, the investigation was not limited to complained product/service only and was being done for all the impacted goods/services. Therefore, law prescribe that benefit of reduction in rate of tax or benefit of increase in ITC should result in commensurate reductio....
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....o such benefit would be available once the above certificates were issued. Therefore, no set parameters could be fixed for determining methodology to compute the benefit of additional ITC which would be required to be passed on to the buyers of such units. Further the facts of the cases relating to the Fast-Moving Consumer Goods (FMCGs), restaurants, construction and cinema houses was completely different and therefore, the mathematical methodology employed in the case of one sector could not be applied in the other sector otherwise it would result in denial of the benefit to the eligible recipients. Further applying the same mathematical methodology of FMCG Sector to a supplier of a cinema sector would in fact lead to erosion of justice in the name of uniformity. d) The contentions of the Respondent regarding inappropriate mechanism of ratio of ITC to turnover are that there was a direct relation of ITC availed with that of output tax to be paid, as the use of ITC were only towards making payment of its output liability and no refund of unutilized ITC should be allowed under Section 54 (3) of the CGST Act, 2017. Further in the case of the Respondent, it was observed from the s....
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....od should be compared and thereby arrived at the actual profit value. vi. The DGAP in his Report had not only ignored the factual details of the escalation in cost of constructions supplied by the Respondent but also proceeded with assumptions and presumptions to arrive at the illusionary profiteering amount. vii. The Respondent submitted that cost of construction was a composition of many variables like Raw materials, labor services, borrowing costs etc. viii. It was not possible for the Respondent to provide the absolute comparison of each such variable during pre-GST period and GST period. However the Respondent had worked out the cost escalations comprising the tangible variables which was apparent from the record and could be easily apprehended. Cost escalation was not limited to such tangible variables only but it would consist of many intangible variables also. However due to the constraints in time it was not possible for the Respondent to quantify all such variables and put it before this Authority. b) That the DGAP Report was based on presumptive facts & figures thereby ignoring the actual facts evident from the written agreement (i.e. binding contract):- i. The....
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....ant violation of Rule of Caveat Emperor. x. There was no implication of Section 171 of CGST Act, 2017 in respect of the Flats / Shops sold during GST period and hence the profiteering amount as worked out by the DGAP on all such Flats / Shops in his Report was grossly incorrect. c) That Methodology adopted for computing profiteering amount by the DGAP was arbitrary and same was evident from his Report itself:- i. Figures of alleged profiteering on the basis of ration of ITC to turnover under the Pre GST & GST period which were absolutely incorrect and illogical. ii. The construction business was peculiar business wherein the project were spread over different cycles falling among couple of years and during all such cycle of project the different activities were carried out which could not be put on a same page wherein different years could be compared with each other. iii. The DGAP had taken the base of Turnover and ITC as two main pillars to determine the quantum of alleged profiteering. However, while considering the same as fundamental pillars the DGAP had not considered the cyclical nature of the business and its impact on the methodology devised by them to work out t....
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....hich tax was payable. ii. The ITC under GST legislation was admissible when the outward supply was taxable. Under the GST legislation as per Schedule III Sale of building along with sale of land in case wherein completion certificate was not received and full or part of consideration was received was taxable. However sale of building, wherein entire consideration received after obtaining completion certificate would not be regarded as supply and accordingly would not be taxable. iii. Some Flats and Shops under investigations were sold after the receipt of the completion certificate and on which there was no liability of GST. It is undisputed fact that ITC proportionate to turnover representing such Flats / Shops which was sold after the receipt of completion certificate would not be admissible. iv. In respect of those sale of flats and shops, where the ITC was not admissible, how come the question of the passing of the GST profiteering arose? Assuming without admitting the method of ratio inputs turnover adopted by the DGAP was correct then also the benefits if any to be passed would be limited to only those sale of units of and shops which were sold before receipt of complet....
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....ing the vagueness of the methodology and the Report of the DGAP also substantiated by the illogical conclusion drawn by him as discussed hereinabove at Para 27(C). iv. The impugned Report of the DGAP proceeded with pre-determined mindset to demand the alleged profiteering amount without offering any logical interference with the law and common parlance. v. In support of his contention, the Respondent relied upon the decision in the matter of erstwhile Service Tax & Central Excise Law, wherein the SCN which could be equated with the DGAP's Report had been vaguely issued and consequently same had been quashed by various judicial fora. a) SBQ Steels Ltd. vs. Commissioner of Cus., C.Ex., & ST., Guntur 2014 (300) ELT 185 (AP). b) CCE vs. Shemco India Transport 2011 (24) STR 409 (Tri-Del.). c) Amrit Food vs. CC 2005 (190) ELT 433 (SC). vi. Since the impugned Report of the DGAP itself was vague, cryptic and untenable in law and hence the proceeding against him deserved to be quashed in toto. f) There was violation of principle of natural justice:- i. As per Section 75 of the CGST Act, 2017 which reads as under:- "Section 75 General provisions relating to determinatio....
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.... case of Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851, had discussed the importance of the canon of "Natural Justice". vi. The Respondent referred and relied on the Hon'ble Supreme Court's decision in case of Canara Bank v. V.K. Awasthy AIR 2005 SC 2090. vii. The impugned Report submitted by the DGAP without adhering to and honoring the doctrine of natural justice deserved to be set aside. g) That the impugned Report was non-speaking:- i. Impugned Report of the DGAP was issued without applying to the provisions, Rules and all the submissions made by the Respondent. The Respondent submitted that the DGAP was in possession of all the documents and submissions made by him however the relevant submissions and explanations which were offered by the Respondent regarding the escalation of the cost of construction had been purposefully ignored. ii. The impugned Report discusses about the alleged profiteering however while working out the alleged profiteering the cost escalation and the sale of flats I shops to the customers who had booked after the receipt of the Completion Certificate had been conveniently ignored by the DGAP and didn't make an....
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....rking profiteering was settled on the guidance of the National Anti-profiteering Authority and which was followed in the DGAP's Report. The Respondent had not pointed out any mistake in facts and figures. However, he questioned the methodology taken for working out profiteering. Therefore, the methodology adopted in the Report was in accordance with the supplies of real-estate services and NAA had accepted the same in similar cases previously. c. That for the contention raised by the Respondent that Methodology adopted for computing profiteering amount by the DGAP was arbitrary and same was evident form their Report itself it was submitted that the "Methodology and Procedure" has been prescribed under Section 171 (1) itself. The word "commensurate" mentioned in the above section gives the extent of benefit to be passed on by way of reduction in the prices which has to be computed in respect of each product. The computation of commensurate reduction in prices is purely a mathematical exercise which is based upon the above parameters and hence it would vary from product to product and hence no fixed methodology can be prescribed to determine the amount of benefit which a suppli....
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.... not be completed by the Authority due to lack of required quorum of members in the Authority during the period 29.04.2021 till 23.02.2022, and that the minimum quorum was restored only w.e.f. 23.02.2022 and hence the matter was taken up for quasi-judicial proceedings vide Order dated 23.03.2022 and hearing in the matter through Video Conferencing was scheduled to be held on 31.03.2022. 24. Therefore, hearing in the matter was held on 31.03.2022. It was attended by Shri Jayesh V Rathod, Applicant No. 1, Shri Manoj Singh, Assistant Commissioner for the DGAP and Shri Sanjay Sharma and Shri Tarun Arora, Chartered Accountant, Shri Jigar Shah, Advocate and Shri Pratik Trivedi and Ms. Jalpa Raval, Chartered Accountants for the Respondent. During the personal hearing, the Respondent has re-iterated his arguments based on his written submissions dated 27.02.2021 and 05.04.2021. The Respondent during the hearing further requested time till 04.04.2022 to file his consolidated written submissions against the Report of the DGAP. 25. Further, the Respondent vide his email dated 04.04.2022 has filed his consolidated Written Submissions against the Report of the DGAP wherein he has re-iterated ....
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....ction or ITC benefit has not been passed on. Therefore, the law prescribes that benefit of reduction in rate of tax or benefit of increase in ITC, in relation to any supply of goods or services should result in commensurate reduction in prices of such supply and accordingly, the DGAP was justified in examining all the supply made by the Respondent beyond the Application filed by the Respondent. 29. The Respondent has contended that the comparison of ratio of ITC to turnover for pre-GST period and GST period was not the correct mechanism for calculation of profiteering amount and that the alleged profiteering was incorrect. The Respondent has also averred that profiteering as per methodology of comparison or ratio of ITC to turnover for pre-GST period and GST period was incorrect as the costs of the Respondent had increased compared to eligible claim of ITC. In the context of this claim, the Authority finds that, the amount of CENVAT or ITC earned on VAT during the pre-GST period is required to be compared with the amount of ITC available during the GST period to arrive at the quantum of ITC benefit, as it is only the additional ITC available during the GST period which is required....
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....rd, it is to mention that as elaborated in para 30 supra the main contours of the 'Procedure and Methodology' for passing on the benefits of reduction in the rate of tax and the benefit of ITC are enshrined in Section 171 (1) of the CGST Act, 2017 itself which states that "Any reduction in rate of tax on any supply of goods or services or the benefit of input tax credit shall be passed on to the recipient by way of commensurate reduction in prices." It is clear from the perusal of the above provision that it mentions "reduction in the rate of tax on any supply of goods or services" which does not mean that the reduction in the rate of tax is to be taken at the level of an entity/group/company for the entire supplies made by it. Therefore, the benefit of tax reduction has to be passed on at the level of each supply of each unit to each buyer of such unit and in case it is not passed on the profiteered amount has to be calculated on each unit. Further, the above Section mentions "any supply" i.e. each taxable supply made to each recipient thereby clearly indicating that netting off of the benefit of tax reduction by any supplier is not allowed. Each customer is entitled to re....
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....e benefits as per the provisions of Section 171 (1). Hence, the Authority finds that, the above contention of the Respondent cannot be admitted. 32. The Respondent has also stated that the profiteering if any should be limited to Flats/Shops sold before the receipt of Building Usage (BU) permission. In this connection, it is to mention that the Respondent vide his submissions has stated that he has received Occupancy Certificate. The Respondent has not submitted any proof of receipt of any Occupancy Certificate before the Authority in his submissions. Therefore, the above contention of the Respondent is not tenable. 33. The Respondent has also submitted that the impugned Report was non-speaking and principle of natural justice has not been followed. It is further claimed that the DGAP has issued the report without providing them with any hearing. The Authority finds that, the Report of the DGAP is prepared on the basis of the Documents/data provided by the Respondent and as per the provisions enshrined under Section 171 of the CGST Act, 2017 which the Respondent has violated by not passing on the benefit of ITC to his home/flat buyers. The findings of the DGAP has not violated an....
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....builder (Respondent) - M/s Savaliya Procon, Project- "Krish Elite", Location- Ahmedabad, Gujarat and amount of profiteering Rs. 85,77,419/- so that the concerned home/shop buyers can claim the benefit of ITC if not passed on. Home/shop buyers may also be informed that the detailed NAA Order is available on Authority's website www.naa.gov.in. Contact details of concerned Jurisdictional CGST/SGST who are nodal officer for compliance of the NAA's order may also be advertised through the said advertisement. 38. The concerned jurisdictional CGST/SGST Commissioner shall also submit a Report regarding compliance of this Order to the Authority and the DGAP within a period of 4 months from the date of receipt of this order. 39. Further, the DGAP is also directed to monitor the compliance of the order by the concerned jurisdictional CGST/SGST Commissioner. 40. A copy of this order be sent to both the Applicants, the Respondent, Commissioners CGST/SGST Gujarat, the Principal Secretary (Town and Country Planning), Government of Gujarat as well as Gujarat RERA free of cost for necessary action. 41. Further, the Hon'ble Supreme Court, vide its Order dated 23.03.2020 in Suo Moto W....