TaxTMI 
TaxTMI 
2022 (5) TMI 973
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....given to many residents. Since, the sale of flats after issuance of completion certificate did not attract GST, he had alleged that the Respondent had charged GST @ 18% on the Preferential Location Charges (PLC). The Haryana State Screening Committee on Anti-Profiteering had examined the said application and forwarded it with its recommendation, to the Standing Committee on Anti-Profiteering for further action, in terms of Rule 128 of the Rules. Further the aforesaid reference was examined by the Standing Committee on Anti-Profiteering in its meeting, the Minutes of which were received in the DGAP, whereby it was decided to forward the same to the DGAP, to conduct a detailed investigation in the matter. Sh. Sudhir Jain had submitted a demand letter along with his application. 2. This Authority went through the aforesaid Investigation Report dated 31.08.2020 submitted by the DGAP and passed an Interim Order No. 38/2020 dated 11.12.2020 and made the following observations:- "25. It has also also been observed from the submissions of the Respondent that he is executing another project viz. "The Ultima" in the same "DLF Garden City", situated in Gurugram, Haryana in respect....
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....were being executed by the Respondent. 5. Accordingly, the DGAP has issued a notice dated 23.09.2021 calling for information in respect of all the projects covered under the same GST Registration No. of the Respondent to determine whether the benefit of ITC had been passed on by him to the recipients in respect of construction service supplied by him for all the projects and the Respondent was further requested to furnish the fresh requisite information/data for the period up to November, 2020. 6. It has also been claimed by the DGAP that the period covered by the current investigation was from 01.07.2017 to 30.11.2020. Though the Respondent claimed that the Occupation Certificate in all three projects were received from the competent authority prior to 30.11.2020 but the Respondent, vide his submission dated 12.12.2021, had confirmed that the in respect of payment plan, the customers have opted for payment plans as per their convenience and same will be mixed. Therefore, since the occupation certificates have been received in respect of all the 3 projects by the Respondent but the nature of agreements as claimed by the Respondent were linked with construction plan as well as....
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....n'ble High Court. when the Court was pleased to issue notice on the aforesaid Writ Petition and the accompanying application for interim relief. The Writ Petition has been re-notified by the Hon'ble Court for further hearing to 06.12.2021. c) That the Respondent was incorporated in the year 1963 and is one of the Largest Real Estate Developers of the country. He has various commercial and residential projects in the state of Haryana. Delhi, and Uttar Pradesh etc. His operations spanned all aspects of real estate, from the identification and acquisition of land, to planning, execution, construction and marketing of projects. He is also engaged with other services such as leasing, maintenance etc. The development business of the Respondent is involved in the sale of residential spaces, select commercial offices and commercial complexes. d) The main projects executed by the Respondent from 01.07.2017 along with the Occupancy Certificates (OC) for these projects were received is as follows :- S.No. Projects Date of OC 1. The Camellias 27.07.2017 2. The Sky Court 17.07.2017 3. The Crest 24.07.2017 4. The Ultima ....
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....t vide the aforementioned letters/e-mails had submitted the following documents/information: a. GSTR-1 & GSTR-3B returns for the period from July, 2017 to November, 2020. b. GSTR-9 for the year 2017-18. 2018-19 and 2019-20. c. Trans-1 for the period July, 2017 to December, 2017. d. VAT and ST-3 Returns for the period April, 2016 to June, 2017. e. Details of applicable tax rates, Pre-GST & Post-GST. f. Balance sheet for the FY 2016-17, 2018-19 & 2019-20. g. Cenvat/Input Tax Register for the F.Y 2016 -17, April, 2017-June, 2017, July, 2017-March, 2018, 2018-19, 2019-20 and April 2020 to November, 2020. h. List of all Construction projects of the Noticee in the State of Haryana other than The Sky Court" on which the Noticee is availing ITC from common pool, along with RERA Registration No's, that is, all the projects covered under GSTN:06AAACD3494N 1ZC. i. Copy of demand letters/Sale agreement/contract issued to the home buyers for Ultima, Crest & Camellias project. (Sample basis). j. Copy of the RERA Certificate for the project Ultima Phase-II. k. Tower-wise status of all projects a....
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....t not sold was provisional ITC which might have been required to be reversed by the Respondent, if such units remained unsold at the time of issue of the completion certificate, in terms of Section 17 (2) & Section 17 (3) of the CGST Act, 2017, which read as under: Section 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". Section 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 ITC pertaining to the unsold units might not fall within the ambit of the investigation and the Respondent was required to recalibrate the selling price ....
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....r in respect of the project "The Camellias". 14. The DGAP has further submitted that the Central Government, on the recommendation of the GST Council, had levied 18% GST on construction service, vide Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017. Since the Respondent was eligible for 1/3rd abatement on land value, the effective GST rate was 12%. Accordingly, on the basis of the figures contained in Table 'A', above, the comparative figures of the ratio of ITC availed/available to the turnover in the pre-GST and post-GST periods as well as the turnover, the recalibrated base price and the excess realization (profiteering) during the post-GST period in respect of project "The Camellias". has been furnished by the DGAP in Table-B below:- Table-B - Project "The Camellias" (Amount in Rs.) S. No. Particulars 1. Period A July, 2017 to November, 2020 2. Output tax rate (%) B 12.00% 4. Increase in ITC availed post-GST (%) C= 1.84% less 0.67% 1.18% 5. Analysis of Increase in ITC: 6. Total Basic Demand during July, 2017 to December, 2019 D 5,48,89,78,351 7. GST @12% E=D*12% 65,86,77,402 8. ....
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....DGAP in Table-D below:- Table-D - Project "The Crest" (Amount in Rs.) S. No. Particulars 1. Period A July, 2017 to November, 2020 2. Output tax rate (%) B 12.00% 4. Increase in ITC availed post-GST (%) C=14.40% less 2.64% 11.76% 5. Analysis of Increase in ITC: 6. Total Basic Demand during July, 2017 to December, 2019 D 98,29,79,749 7. GST @12% E=D*12% 11,79,57,570 8. Total demand F=D+E 1,10,09,37,319 9. Recalibrated Basic Price G=D*(1-C) or 88.24% of D 86,74,12,633 10. GST @12% H=G*12% 10,40,89,516 11. Commensurate demand price I=G+ H 97,15,02,149 12. Excess Collection of Demand or Profiteered Amount J=1-F 12,94,35,170 17. Similarly, the details of the ITCs availed by the Respondent, his turnovers from the project "The Ultima", and the ratios of ITCs to turnovers, during the pre-GST (April, 2016 to June, 2017) and post-GST (July, 2017 to November, 2020) periods have been furnished by the DGAP in Table-E below:- Table-E - Project "The Ultima" (Amount in Rs.) S.No. Particulars April, 2016 to June, 2017 July, 2017 to November, 2020 (P....
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....lted in the commensurate reduction in the base price as well as cum-tax price. Therefore, in terms of Section 171 of the CGST Act, 2017, the benefit of such additional ITC was required to be passed on to the recipients. 19. The DGAP in his report has claimed that as per the calculations explained in Tables 'B', 'D' and 'F' mentioned above, the aforesaid CENVAT/ITC availability in pre and post-GST periods and the details of the amount collected by the Respondent from the home/flats buyers in respect of the units sold by the Respondent during the period 01.07.2017 to 30.11.2020, the benefit of ITC that needed to be passed on by the Respondent to the buyers of flats comes for the projects The Camellias" as Rs. 7,23,50,135/-, "The Crest" as Rs. 12.94,35,170/- and "The Ultima' as Rs. 4,91,23,070/-. Further, the Respondent had submitted the lists of home buyers of all the above three projects and had claimed that he had passed on the benefit of ITC and mentioned the amount of benefit of ITC passed on against each home buyer of respective projects. The Respondent had claimed that benefit of ITC was passed on to the home buyers of the projects "The Camellias" to the ....
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....the benefit of additional ITC to the tune of 15.01% of the turnover for the project The Ultima'', which has accrued to the Respondent in the post-GST period from 01.07.2017 to 30.11.2020 and the same was required to be passed on by the Respondent to his recipients. Hence, the Respondent had realized an additional amount to the tune of Rs. 4,91,23,070/-(including GST) from 123 homebuyers. These 123 buyers were identifiable as per the documents provided by the Respondent, giving the names along with unit no. allotted to such buyers. 21. The DGAP has further reported that any reference to the Central Goods and Services Act, 2017 and Central Goods and Service Tax Rules, 2017, will also include a reference to the corresponding provisions under the relevant SGST/UTGST/IGST Acts and Rules in the present report. 22. The above Report of the DGAP was considered by this Authority and it was decided to allow the Respondent to file his consolidated written submissions by 16.03.2022. A notice dated 02.03.2022 was also issued to the Respondent asking him to explain why the Report of the DGAP dated 16.12.2021 should not be accepted and his liability for violating the provisions of Se....
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....ice provider and supplied construction services on which there was no reduction in rate of tax. iii. While the phrase benefit of ITC has not been defined, the definition of ITC was contained in section 2 (63) of the CGST Act, which is extracted for ready reference:- 63) "ITC means the credit of input tax; Input tax is defined in section 2(62): "(62) "input tax" in relation to a registered person, means the central tax, State tax, integrated tax or Union territory tax charged on any supply of goods or services or both made to him and includes- (a) the integrated goods and services tax charged on import of goods; (b) the tax payable under the provisions of sub-sections (3) and (4) of section 9; (c) the tax payable under the provisions of sub-sections (3) and (4) of section 5 of the Integrated Goods and Services Tax Act; (d) the tax payable under the provisions of sub-sections (3) and (4) of section 9 of the respective State Goods and Services Tax Act; or (e) the tax payable under the provisions of sub-sections (3) and (4) of section 7 of the Union Territory Goods and Services Tax Act, but does not include the tax....
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....oods/services and their supplies. In the present case, since the same was not possible, the provisions of Section 171 were inapplicable. f) PRESENT PROCEEDINGS ARE EX-FACIE WITHOUT JURISDICTION AND ALSO CONTRARY TO THE RELEVANT STATUTORY PROVISIONS:- i. There was no complaint filed by any flat buyer/customer or the Commissioner with respect to three projects in question, namely. "The Camellias". "The Crest" and "The Ultima". This Authority vide its order dated 11.12.2020 took suo moto cognizance and directed DGAP to investigate Respondent's another project, namely "The Ultima". ii. That neither the CGST Act nor the CGST Rules confer any power either on this Authority or DGAP to initiate investigation against any of the registered persons on their own motion, i.e. suo moto. Initiation of investigation or proceedings against any person suo moto had legal ramifications and hence had to be specifically legally and statutorily provided for. In the absence of any such express conferment of suo moto power on this Authority or the DGAP to order investigation against any person, this Authority and the DGAP could act only based on the application filed by an in....
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....Authority should be conferred with suo moto powers. However, despite such discussions, no such specific powers had been conferred on this Authority. Instead, apart from an interested party, the Commissioner has been given the authority to file an application for initiation of anti-profiteering proceedings. Therefore, it was submitted that this Authority had no suo moto powers. vi. That the DGAP vide its earlier report dated 31.08.2020 had investigated Respondent's project, namely, "The Sky Court". As provided in Rule 133 (4), this Authority could have only directed further investigations in the matter" i.e., only Respondent's project The Sky Court". Therefore, it was evident from the language of Rule 133 (4) that this Authority did not have any power to expand the investigations and had no suo moto powers under Rule 133 (4) to enquire into any project which was covered by the report. Therefore, the direction of this Authority to expand the investigations was unsustainable. vii. That Sh. Sudhir Jain in his application had submitted that the Respondent had wrongly charged GST @ 18% on the Preferential Location Charges on the sale of flat to him after the iss....
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....location charges on which GST was required to be collected at 18%. He had made no allegation whatsoever that the Respondent did not pass the benefit of ITC or reduction in taxes. GST was applicable on the preferential location charges collected by the Respondent and accordingly the same was recovered from him. The Standing Committee ought to have considered the fact that there could be no question of benefit to be passed on to Sh. Sudhir Jain. iii. Thus, the Standing Committee had no evidence against the Respondent and had failed to provide any prima facie evidence based on which it had come to the conclusion that the allegation of profiteering needed to be investigated. iv. That as the reference by Standing Committee was not in accordance with the CGST Rules, the order dated 11.12.2020 of this Authority, the DGAP's notice dated 23.09.2021 and DGAP's report dated 16.12.2021 were required to be set aside on this ground alone. h) PROCEEDINGS INITIATED ARE IN VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE:- i. That the Respondent was not provided any opportunity of hearing by the Standing Committee to present his case and / or address the co....
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.... copy of the report of the DG, as on date the Respondent had not been served any notice/communication regarding the issues to be examined and actions proposed to be taken against the Respondent. The Respondent could not presume the report of DG to be a show cause notice and defend himself. vi. That even if the CGST Act and the CGST Rules did not provide for issuance of a show cause notice before initiating proceedings under Section 171, the Authority should have issued a show cause notice to the Respondent in terms of principles of natural justice as held by courts in various cases. i) IN ABSENCE OF PRESCRIBED METHOD OF CALCULATION OF PROFITEERING IN THE ACT OR THE RULES OR THE PROCEDURE, THE PROCEEDINGS ARE ARBITRARY AND LIABILE TO BE SET ASIDE:- i. That the CGST Act read with the CGST Rules did not provide the procedure and mechanism of determination and calculation of profiteering. In absence of the same, the calculation and methodology used in the report was arbitrary and was in violation of principles of natural justice. ii. As per Rule 126, the Authority had the power to determine the methodology and procedure for determination as to whethe....
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....e by not more than $1. These regulations had been set as barometers for calculating profiteering. It is submitted that no such procedure for calculation of profiteering had been provided under the CGST Act and CGST Rules. Absence of the same violated the principles of natural justice and thus. the investigation was liable to be set aside. Reliance has been placed on the case of Eternit Everest Ltd. vs. Union of India, reported at 1997 (89) E.L.T. 28 (Mad.), where the Hon'ble Madras High Court has held that in absence of machinery provisions pertaining to determination and adjudication upon a claim or objection, the statutory provision will not be applicable. vi. In the case of Commissioner of Income Tax, Bangalore vs. B.C. Srinivasa Setty, reported as (1981) 2 SCC 460, the Hon'ble Supreme Court held that charging section is not attracted where corresponding computation provision is inapplicable. It is 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 as 2018 [11] G.S.T.L. 367 observed that in the absence of any procedure or provision....
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....d output. In light of the said facts, there ought to have been a standard methodology to determine the profiteering for real estate sector. j) COMPARISON OF RATIO OF ITC TO TURNOVER FOR PRE-GST PERIOD AND GST PERIOD IS NOT THE CORRECT MECHANISM FOR CALCULATION OF PROFITEERING AMOUNT:- i. That the DGAP had arrived at the figures of alleged profiteering on the basis of the difference between the ratio of ITC to turnover under the pre-GST and GST period. That using this formula for calculating the benefit of additional ITC accrued to the Respondent would never yield the correct quantum of profiteering. ii. The comparison of above ratio was not appropriate for the reason that under the real estate sector, there was no correlation between turnover and the cost of construction or development of a project. The turnover reflected the amount collected by developer as per payment or booking plans issued by it which was purely based on market driven strategy. On the contrary, the ITC accrued to a developer on the basis of actual cost incurred by him while undertaking the development of a project. Accrual of ITC was not dependent on the amount collected from the buyers. In....
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....e to the Respondent even before GST and hence, the Respondent could not be asked to transfer this additional credit to the customers The impact on this account (due to increase in tax rate of services) is as follows:- Particulars Pre-GST Post-GST ITC (assuming services of Rs. 100 received from a vendor) 15 18 Taxable turnover 120 120 % of Credit 12.5% 15% f. Based on the above calculation, it was submitted that if the value of service received and value of service provided pre and in GST regime had remained the same, there was an increase of 2.5% of ITC, however, in reality, there was no additional benefit arising to the Respondent as he had paid an additional 3% tax to its service providers and taken ITC of the same. The amount (%) would increase in case services were procured in April'16 to May'16, when Service Tax rate was 14.5%. In other words, increase in the tax rate did not result in a benefit. Tax was paid in advance to supplier and availed as credit and utilized for payment of output tax. In other words, increase in rate of tax reduced the net amount of tax to be paid in cash and was not a benefit. g. Further, t....
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.... March 2018 and FY 2018-19 was tabulated below:- Particulars July 2017 to March 2018 April 2018 to March 2019 ITC 15.252 18.998 Turnover 47.634 568.287 Credit to turnover ratio 32.01 3.34 Difference in credit to turnover ratio 28 67 k. That within the same regime for two given periods, the credit to turnover ratio could vary as highlighted in the above table. Similar exercise could be done in the pre-GST regime to show that credit to turnover ratio would vary:- Particulars April 2016 to March 2017 April 2018 to March 2019 Cenvat Credit 29.329 8.924 Turnover 2251.512 1716 531 Credit to turnover ratio 1.30 0.52 Difference in credit to turnover ratio 0.78 l. The comparison of pre-GST credit to turnover ratio to the post-GST ratio had resulted in skewed and inconsistent results in various orders passed by this Authority. The percentage of credit to turnover ratio (in GST regime) has varied from 0.2% (in Vatika Limited, Case No. 64/2019) to 20.98% (in Emaar MGF Land Ltd., Case No. 26/2020). m. That the Hon'ble Finance Minister/Chairperson of GST Council in the 32nd GS....
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....clause (b) of paragraph 5 of Schedule II. sale of building was treated as neither supply of goods nor supply of services, as per paragraph 5 of Schedule III of the CGST Act. ii. Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017 provided for exclusion of land value from the value of taxable construction services and deems the value of land as 1/3rd of the total amount charged from customers. In this regard, reference could be made to Para 2 of the aforesaid notification, extracted below:- "2. In case of supply of service specified in column (3), in item (I); (I) (ia), (ib), (ic), (id), (ie) and (if) against serial number 3 of the Table above, involving transfer of land or undivided share of land, as the case may be, the value of such supply shall be equivalent to the total amount charged for such supply less the value of transfer of land or undivided share of land, as the case may be, and the value of such transfer of land or undivided share of land, as the case may be, in such supply shall be deemed to be one third of the total amount charged for such supply." Emphasis supplied iii. Section 171 (2) of the CGST Act empowered the Central Gover....
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....demand price L=J+K 2,22,18,81,066 14. Excess Collection of Demand or Profiteered Amount M=I-L 5,06,78,069 v. Similarly, in the Order of this Authority in the case of M/s. Fusion Buildtech Pvt. Ltd., the DGAP excluded value of land from its profiteering calculation and the same was upheld by the Authority. vi. Assuming the computation done by DGAP was correct, an amount of Rs. 8,3636,125/- (as demonstrated below) needed to be reduced from the total profiteering determined in the DGAP report on account of land value. The calculation of same was as follows:- Project (A) Profiteering Amount (B) Profiteering amount on land (C) (B/3) Profiteering on value excluding land value(C- The Camellias 7,23,50,135/- 2,41,16,712/- 4,82,33,423/- The Crest 12,94.35,170/- 4,31,45,057/- 8.62,90,113/- The Ultima 4,91,23,070/- 1,63,74,357/- 3,27,48 713 Total 25,09,08,375/- 8,36,36,125/- 16,72,72,250 I) ALLEGED PROFITEERING AMOUNT HAS BEEN INCORRECTLY INFLATED IN THE REPORT BY ADDING GST AND THE SAME IS NOT SUSTAINABLE:- i. That the profiteered alleged by the DGAP was arriv....
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....with respect to the alleged excess GST paid by the recipient which was not retained by the Respondent but promptly paid to the Government as tax (on which there is no dispute), it was submitted that the Respondent could not be alleged to have profiteered.. vii. That addition of 12% would have been correct if the case of DGAP was that the amount had been collected and retained by the Respondent and not deposited with the Government. In this regard, reliance was placed on the case of R.S. Joshi, Sales Tax Officer, Gujarat v. Ajit Mills Limited reported at (1977) 4 SCC 98, wherein the Supreme Court analysed what the term "collected' meant in the context of the sales tax legislation of Gujarat. It observed as under:- "34. Section 37 (1) uses the expressions, in relation to forfeiture any sum collected by the person - shall be forfeited'. What does collected' mean here? Words cannot be construed effectively without reference to their context. The setting colours the sense of the word. The spirit of the provision lends force to the construction that 'collected" means "collected and kept as his" by the trader. If the dealer merely gathered the sum by way ....
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....xtract from the THIS AUTHORITY's order dated 11.12.2020 reads as below:- '22. it is also revealed that from the above Report of the DGAP that the Respondent has received Completion Certificate on 17.07.2017 in respect of the above project. Since, the Respondent has received Completion Certificate on 17.07.2017, the period of investigation should have restricted up to 16.07.2017 and the investigation should not have been conducted up to 31.07.2019 unless there were justifiable grounds to do so. However, no such grounds have been mentioned by the DGAP in the Report". ii. That DGAP in its present report has erred in considering the period after receipt of the completion certificate for Respondent's three projects. Respondent received the completion certificate on the following dates:- S.No. Project Date of completion certificate 1. The Camellias 27.07.2017 2. The Crest 24.07.2017 3. The Ultima (Tower E,H,J,K,L & EWS) 11.06.2018 4. The Ultima (Tower-A.B,N,Q,R & Shops) 05 02 2019 iii. That for all the three projects, DGAP has taken the period of investigation from 01.07.2017 to 30.11.2020. It is submitte....
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.... in his report has not adjusted the benefit passed on by to arrive at the total profiteered amount. DGAP further records at Para 28 of the report that no documentary evidences were submitted by the Respondent. It is submitted that the Respondent had submitted the excel sheet containing details of each flat buyer and the amount of benefit which was passed on. However. no further information was called for to verify the benefit passed on by the Respondent. v. The Respondent has passed on benefit of ITC by adjusting the same from the demands raised. The benefit of ITC/GST is shown as a separate line item in the final statement of accounts ('FSOA') and the same can be verified from the ledger accounts of flat buyers. vi. The benefit of ITC has been calculated project wise by adding the following:- 1. Benefits due to reduction in sourcing costs due to increase in credits; 2. VAT which would have been by the Respondent on its own account if GST was not introduced vii. The total benefit was then divided by total area to arrive at the per square feet benefit to be passed on to the flat buyers. The amount of benefit passed on was also reviewe....
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....in this case? b) If yes what was the additional benefit that has to be passed on to the recipients? 27. The Respondent has contended that in the present case, the provisions of Section 171 of the CGST Act are not applicable. Neither reduction in rate of tax nor benefit of ITC have been defined in the CGST Act. In the erstwhile pre-GST regime, input credit was mentioned as `CENVAT credit' whereas in the GST regime the input credit is mentioned as 'ITC'. Hence, the benefit of ITC could only arise within GST regime, on a change in provision relating to ITC. That transition from pre-GST to GST regime may entail certain benefits which the Respondent may pass on to his customers. However, the same could not be considered as benefit of ITC for the purpose of invoking the provisions of section 171. The comparison of the ITC with the CENVAT credit that existed under the CENVAT Credit Rules, 2004 and the respective VAT Acts to arrive at the benefit of ITC was beyond the scope of Section 171 of the CGST Act. In respect of the above contention of the Respondent, it is relevant to mention here that Section 171 (1) of the CGST Act, 2017 provides that Any reduction in rate....
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....that the complaint filed by Sh. Sudhir Jain in his project 'The Sky Court' was only with respect to the wrong charging of GST @18% on the Preferential Location Charges on the sale of flat after issuance of Completion Certificate and no allegation of the violation of Section 171 of the above Act was levelled by him. The Respondent has placed reliance on the judgment of the Hon'ble Supreme Court in Gujarat Urja Vikas Nigam Limited vs. Solar Semiconductor Power Company (India) Private Limited and Ors. (2017) 16 SCC 498 and Rajeev Hitendra Pathak and Ors. v. Achyut Kashinath Karekar and Anr. 2011 (9) SCALE 287. 29. With regard to the above contentions of the Respondent, the Authority finds that from the perusal of the Section 171 (2) of the CGST Act, 2017 it is clear that the benefits of tax reduction and ITC are to be passed on by each registered person by commensurate reduction in prices on each supply to every recipient and this Authority is empowered to examine whether these benefits have been passed on or not. To assist this Authority while making such examination an investigating agency designated as the DGAP has been created under Rule 129 of the CGST Rules, 2017 ....
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....all the projects executed under a common pool, all the projects being executed by the Respondent are required to be investigated to determine whether the benefit of additional ITC has been passed on each product to each buyer or not. Hence, the directions of this Authority vide its order dated 11.12.2020 have been rightly conveyed as the same fall within the jurisdiction of the Authority. Therefore, the Authority finds that the contention of the Respondent are not correct and cannot be accepted and the case laws referred by him are not relevant to the present case. 30. The Authority finds that, the Respondent has further contended that Sh. Sudhir Jain has filed complaint against his project The Sky Court' only on the issue of wrong charging of GST on the Preferential Location Charges collected by the Respondent and no allegation regarding the passing on the benefit of ITC was made against the Respondent. Therefore, the Standing Committee had no evidence against the Respondent based on which it had come to the conclusion that the allegation of the profiteering needed to be investigated. Thus, the reference by the Standing Committee was not in accordance with the CGST Rules. ....
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....ity and action proposed to be taken by this Authority against the Respondent invoking applicable statutory provisions. 35. The Authority finds that, the above contention made by the Respondent not correct. Perusal of Rule 129 (6) of the CGST Rules, 2017 makes it clear that the DGAP shall complete the investigation within the prescribed time limit and upon completion of the investigation, furnish a report of its findings alongwith the relevant records to this Authority. In the present case, the DGAP after detailed investigation has submitted his Report dated 16.12.2021 to this Authority. On receipt of the above Report of the DGAP. this Authority has carefully considered the allegations made against the Respondent and issued show cause notice dated 02.03.2022 to the Respondent vide which the Respondent was directed to explain why the Report of the DGAP should not be accepted and his liability for the profiteering should not be determined under Section 171 of the Act. The Report of the DGAP was also supplied to the Respondent along with all the annexures. The Respondent was also given opportunity to file his consolidated written submissions against the allegations levelled by the D....
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....ply 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." The Authority finds that, it is clear from the plain reading of the above provision that it mentions "reduction in the rate of tax or benefit of ITC" which means that if any reduction in the rate of tax is ordered by the Central and the State Governments or a registered supplier avails benefit of additional ITC post GST implementation, the same have to be passed on by him to his recipients since both the above benefits are being given by the above Governments out of their scarce and precious tax revenue. It also provides that the above benefits are to be passed on any supply i.e. on each product or unit of construction or service to every buyer and in case they are not passed on, the quantum of denial of these benefits or the profiteered amount has to be computed for which investigation has to be conducted in respect of all such products/units/services by the DGAP. What would be the 'profiteered amount' has been clearly defined in the explanation attached to Section 171. These benefits can also not be passed on at the entity / organisa....
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....ide its Notification dated 28.03.2018 under Rule 126 of the CGST Rules, 2017. However, no fixed mathematical formula, in respect of all the Sectors or the products or the services, can be set for passing on the above benefits or for computation of the profiteered amount, as the facts of each case are different. In the case of one real estate project, date of start and completion of the project, price of the flat/shop, mode of payment of price or instalments, stage of completion of the project, rates of taxes pre and post GST implementation, amount of CENVAT credit and ITC available, total saleable area, area sold and the taxable turnover received before and after the GST implementation would always be different from the other project and hence the amount of benefit of additional ITC to be passed on in respect of one project would not be similar to the other project. Therefore, no set procedure or mathematical methodology 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. Similar....
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....Country the anti-profiteering measures introduced at the time of implementing the GST had prescribed methodology to determine prices whereas no such provision has been made in this country under Section 171 as it would be hit by Article 19 (1) (g). Moreover, the Government of Malaysia has already withdrawn the GST and the anti-profiteering measures as they were not working properly in that Country. Hence, the Authority finds that the above submissions of the Respondent are not tenable, 39. The Authority finds that, the Respondent has also contended that comparison of ITC to Turnover for per-GST and post-GST period is not the correct mechanism for calculation of profiteering amount as this formula for calculating the benefit of additional ITC would never yield the correct quantum of profiteering. There was no correlation between turnover and the cost of construction or development of a project. The turnover reflected the amount collected by developer as per payment or booking plans issued by it which was purely based on market driven strategy. Accrual of ITC was not dependent on the amount collected from the buyers. In this industry, there might be cases where advance was receive....
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.... 43. The Respondent has also contended that the turnover would vary as per the market conditions and it was difficult to maintain the ratio of the same in the proportion to procurement in a real estate sector. With regard to this contention of the Respondent, the Authority finds that there is no ground to claim that the Turnover would vary as per the market conditions as the Respondent is raising demands as per the stage of the completion of the project and not as per the market conditions. 44. The Respondent has further averred that ITC is an absolute number which would vary as per the Govt. rate policies and a lot of goods had been moved from 28% to 18% slab. In this connection, the Authority finds that there is no effect of the reduction in rate of tax from 28% to 18% as the benefit of ITC is to be calculated on the additional ITC which has accrued to the Respondent in the post-GST period. Hence, the contention of the Respondent is not tenable and cannot be accepted. 45. The Authority finds that, it has also been claimed by the Respondent that reversal of ITC due to receipt of Completion Certificate also had a bearing on ITC availed by the developer and such a critical fac....
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....tself. The percentage of cred it to turnover (in the GST regime) in the his case also had varied from 1.84% (for the project The Camellias") to 17.46% (for the project The Ultima"). The Respondent has also contended that the percentage of credit to turnover ratio (in GST regime) has varied from 0.2% (in Vatika Limited, Case No. 64/2019) to 20.98% (in Emaar MGF Land Ltd, Case No. 26/2020). 50. In relation to the above submission of the Respondent, the Authority finds that the benefit of additional ITC would depend on the comparison of the ITC/CENVAT credit which was available to a builder in the pre-GST period with the ITC available to him in the post GST period w.e.f. 01.07.2017. In the case of one real estate project, date of start and completion of the project, price of the flat/shop, mode of payment of price or instalments, stage of completion of the project, rates of taxes pre and post GST implementation, amount of CENVAT credit and ITC available, total saleable area, area sold and the taxable turnover received before and after the GST implementation would always be different from the other project and hence the amount of benefit of additional ITC to be passed on in respect ....
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....Joshi, Sales Tax Officer, Gujarat v. Ajit Mills Limited reported at (1977) 4 SCC 98. Hence, an amount of Rs. 2,38,83,040/- that has been paid to the Government exchequer, should be reduced from the total amount of profiteering. 54. The Authority finds that the above contention raised by the Respondent is not correct. The Authority finds that the Respondent has not only collected excess base prices from the customers which they were not required to pay due to the reduction in the rate of tax but he has also compelled them to pay additional GST on these excess base prices which they should not have paid. The Authority finds that, by doing so the Respondent has defeated the very objective of both the Central as well as the State Governments which aimed to provide the benefit of rate reduction to the general public. The Authority finds that, the Respondent was legally not required to collect the excess GST and therefore, he has not only violated the provisions of the CGST Act, 2017 but has also acted in contravention of the provisions of Section 171 (1) of the above Act as he has denied the benefit of ITC to his customers by charging excess GST. The Authority finds that. had the Res....
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....erred in considering the same area under pre-GST period as well as GST period on both sides while comparing the profiteering which has resulted in wrong calculation of percentage of profiteering. With respect to the this contention of the Respondent, the Authority finds that the 'Total Saleable Area is fixed and hence it cannot be changed. While computing the pre and post GST ratio of CENVAT/ITC to Turnover, figure of 'Sold Area re levant to the Turnover' has been considered. This 'Sold Area Relevant to Turnover' is the area in respect of which the Respondent has received consideration from the buyers/customers in both the regimes i.e. pre-GST and post-GST. To determine the value of `ITC proportionate to the Sold Area', the amount of 'Sold Area relevant to Turnover' is required. If the figure of 'Sold Area relevant to Turnover' is ignored, the exact quantum of 'ITC proportionate to the Sold Area' could not be determined, which is further required for the calculation of the 'Ratio of the CENVAT/ITC to Turnover'. The difference in the 'Ratio of the CENVAT/ITC to Turnover' in the pre-GST and post-GST regime determines whe....
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....alised knowledge or expertise in any field and expediting the disposal and relaxing the procedure is the only object, a provision for technical members in addition to or in substitution of judicial members would clearly be a case of dilution of and encroachment upon the independence of the judiciary and the rule of law and would be unconstitutional." (Emphasis supplied) In the case of Madras Bar Association supra, the Hon'ble Supreme Court was considering the constitution/composition of the National Tax Tribunal. It was held by the Hon'ble Supreme Court as follows:- "113.2..... The power of discharging judicial functions which was exercised by members of the higher judiciary at the time when the Constitution came into force should ordinarily remain with the court, which exercised the said jurisdiction at the time of promulgation of the new Constitution. But the judicial power could be allowed to be exercised by an analogous/similar court/Tribunal with a different name. However, by virtue of the constitutional convention while constituting the analogous court/Tribunal it will have to be ensured that the appointment and security of tenure of Judges of that cour....
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.... held that the legislative requirement that members have knowledge and experience in their respective fields, including law, pre-supposed the requirement of a basic degree in the said field. Relevant portions of the original Judgment are reproduced herein below:- "82. Once it is held that the Information Commission is essentially quasi-judicial in nature, the Chief Information Commissioner and members of the Commission should be the persons possessing requisite qualification and experience in the field of law and/or other specified fields. We have discussed in some detail the requirement of a judicial mind for effectively performing the functions and exercising the powers of the Information Commission. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 87. The various provisions of this Act are clear indicators to the unquestionable proposition of law that the Commission is a judicial Tribunal and not a ministerial Tribunal. It is an important cog in and is part of court attached system of administration of justice unlike a ministerial Tribunal which is more influenced and controlled and performs functions akin to machinery of administration. XXXXXXXXX....
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....ctions 12 (5) and 15(5) of the Act for appointment of persons with judicial experience and acumen and retired Judges of the High Court as Information Commissioners and retired Judges of the Supreme Court and Chief Justice of the High Court as Chief Information Commissioner and any direction by this Court for appointment of persons with judicial experience, training and acumen and Judges as Information Commissioners and Chief Information Commissioner would amount to encroachment in the field of legislation......." (Emphasis supplied) As this Authority has not assumed any jurisdiction, which was hitherto being exercised by the High Court or any other judicial body, the principle that there must be a Judicial Member laid down in certain decisions does not apply to the composition of this Authority. As stated in Section 171 (2) of the CGST Act, 2017, the role of this Authority is to examine whether input tax credits availed by any registered person or the reduction in the tax rate have actually resulted in a commensurate reduction in the price of the goods or services or both supplied by him." The duties of this Authority have been further elaborated in Rule 127 of the CGST Rules....
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.... requires the SEBI to be composed of a Judicial Member simply because it also performs quasi-judicial functions under the Act apart from its other roles. SEBI's composition has been provided in Section 4 (1) of the aforementioned Act. The Hon'ble Supreme Court in the case of Clariant International Ltd. & Anr. v. Securities and Exchange Board of India (2004) 8 SCC 524 has held that SEBI exercises its legislative power, executive power and judicial power:- "77. The Board exercises its legislative power by making regulations, executive power by administering the regulations framed by it and taking action against any entity violating these regulations and judicial power by adjudicating disputes in the implementation thereof" Similarly, the TRAI which also performs quasi-judicial functions has been constituted under the Telecom Regulatory Authority Act, 1997 but does not have a Judicial Member. Section 3 of the said Act provides for the composition of the Authority. Again, the Medical Council of India has been constituted under the Indian Medical Council Act, 1956. The various disciplinary powers which it exercises under the Act can be said to be quasi-judicial in na....
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....ged by the Respondent that Section 171 of the CGST Act and Rules made thereunder pertaining to anti-profiteering are unconstitutional being violative of Article 14 and Article 19 (1) (g) of Constitution of India. In this connection it would be correct to point out that this Authority not acted in any way as price controller or regulator as it doesn't have the mandate to regulate the same. The Respondent is absolutely free to exercise his right to practise any profession, or to carry on any occupation, trade or business, as per the provisions of Article 14 and 19 (1) (g) of the Constitution. He can also fix his prices and profit margins in respect of the supplies made by him. Under Section 171 this Authority has only been mandated to ensure that both the benefits of tax reduction and ITC which are the sacrifices of precious tax revenue made from the kitty of the Central and the State Governments are passed on to the end consumers who bear the burden of tax. The intent of this provision is the welfare of the consumers who are voiceless, unorganised and vulnerable. This Authority is charged with the responsibility of ensuring that the both the above benefits are passed on to the g....
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.... DGAP's Report that there has been no reduction in the rate of tax in the post GST period; hence the only issue to be examined is as to whether there was any net benefit of ITC with the introduction of GST. On the issue of reduction in the tax rate, it is apparent from the DGAP's Report that there has been no reduction in the rate of tax in the post GST period; hence the only issue to be examined is as to whether there was any net benefit of ITC with the introduction of GST. On this issue it has been revealed from the DGAP's Report that the ITC as a percentage of the turnover that was available to the Respondent during the pre-GST period (April-2016 to June-2017) was 0.67%, 2.64% & 2.45% and during the post-GST period (July-2017 to November-2020), it was 1.84%, 14.40% & 17.46% for the projects The Camellias', The Crest' and The Ultima' respectively. This confirms that, post-GST, the Respondent has been benefited from additional ITC to the tune of 1.18% (1.84% - 0.67%), 11.76% (14.40% - 2.64%) and 15.01% (17.46% - 2.45%) of his turnover for the projects The Camellias'. The Crest and The Ultima' respectively and the same was required to be passed on to....
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....th interest @ 18% in respect of all the three projects `The Camellias', The Crest' and 'The Ultima' of the Respondent as in the Annexure-1, 2 and 3 respectively. 67. We also order that the profiteering amount of Rs. 7,23,50,135/-, Rs. 12,94,35,170/- & Rs. 4,91,23,070/- for the projects The Camellias', The Crest' and The Ultima' respectively along with the interest @ 18% from the date of receiving of advance from the homebuyer till the date of passing the benefit of ITC shall be paid/passed on by the Respondent within a period of 3 months from the date receipt of this order failing which it shall be recovered as per the provisions of the CGST Act, 2017. 68. It is also evident from the above narration of facts that the Respondent has denied benefit of ITC to the buyers of the flats and the shops being constructed by him in his projects The Camellias', The Crest' and The Ultima' in contravention of the provisions of Section 171 (1) of the CGST Act. 2017 and has committed an offence under Section 171 (3A) of the above Act. That Section 171 (3A) of the CGST Act. 2017 has been inserted in the CGST Act, 2017 vide Section 112 of the Finance Act....
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....r dated 23.03.2020 is restored and in continuation of the subsequent Orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general of special laws in respect of all judicial or quasi-judicial proceedings." Accordingly this Order having been passed today falls within the limitation prescribed under Rule 133 (1) of the CGST Rules, 2017 72. A copy of this order be sent, free of cost to the DGAP, the Respondent, Commissioners CGST/SGST Haryana, the Principal Secretary (Town and Country Planning), Government of Haryana as well as Haryana RERA for necessary action. Encl:- Annexure 1 Page 1 to 3 Annexure 2 Page 4 to 9 Annexure 3 Page 10 to 13 ============= Document 1 S. No. Customer Name of the Project The Camellias ANNEXURE-1 LIST OF HOME BUYERS OF THE PROJECT 'THE CAMELLIAS' Unit Amount of ITC Number to be passed on 1 GOPAL CHOPRA CM405A 83,274 2 SANDEEP KUMAR CM0916 1,328,245 3 RACHNA SAWHNEY CM504A 83,450 4 RACHNA SAWHNEY CM505A 83,450 5 NARESH KUMAR....
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.... 53 ADITYA UMANG VIR CM301A 935,957 54 54 NAVLEEN KOHLI CM734B 2,216,474 55 JAGDEEP DHANKHAR CM724B 3,595 56 GSG PROPERTIES PVT. LTD CM812B 200,584 57 57 ANUJ KAPURIA CM629A 54,800 58 PRANAV KAPURIA CM628A 44,211 59 IMPERIAL AUTO INDUSTRIES LTD CM738B 2,198,187 60 60 CHANDRIKA THATAI CM825A 2,216,548 Page 2 of 13 32 61 VRC LOGISTICS PVT LTD CM637B 157,741 62 62 DALIP GULATI CM731A 27,745 63 LOKESH MALHOTRA CM316A 2,309,285 64 .. TANISHA INFO PVT LTD CM704A 49,668 65 VIMAL ARORA CM0921 1,463,153 99 66 BAR CODE INDIA LTD CM712B 23,247 40 67 ANIL TANDON CM202B 31,619 68 NAVEEN JAIN CM203A 30,218 69 69 PRASHANT RATHEE CM214A 41,178 70 70 SANDEEP KUMAR CM803B 535,969 72 22 71 CHARU MUNJAL PANKAJ MUNJAL CM222A 118,010 CM222B 118,010 73 BINAYAK DUTTA CM733A 71,723 74 MALVIKA RAI CM603A 611,019 75 ACTION CONSTRUCTION EQUIPMENT LTD CM602A 34,356 76 ACTION CONSTRUCTION EQUIPMENT LTD....
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....15,096 44 ARUN SONI CTE152 383,791 45 PADMANABH SINHA CTE043 442,100 46 SANDEEP UPPAL CTE222 370,021 47 SHIKHA SHARMA CHATURVEDI CTD244 477,448 48 KUNAL MANOHAR GOKLANI CTD171 513,529 49 19 MANSI KAPOOR CTD184 452,773 50 NEENA KAPOOR CTD044 473,475 51 ROHIT CHOPRA CTD114 485,441 r 52 RACHITA AWASTHI CTD251 463,897 53 YASHI KANT CTD151 415,416 54 RESHAM SINGH KOONER CTD123 2,733,789 55 JYOTSANA ARORA CTD231 463,104 56 SHWETA AGRAWAL CTB334 868,867 57 RAHUL JOHRI CTD234 480,807 58 MONINDER PAL SINGH CTD224 455,538 59 SONAM GUPTA CTD254 2,447,164 66 60 SALIL SWAROOP BHATNAGAR CTD084 2,447,341 61 HS GREWAL CTE212 413,616 Page 5 of 13 62 62 DEEPIKA BATRA CTD094 585,335 63 ABHINAV SINHA CTD204 482,391 64 ATIMA MANKOTIA CTD124 2,517,426 65 SAJAN KUMAR JAIN CTD213 761,271 69 66 AMITA CHAWLA CTD243 541,828 67 67 NISHA JAIN CTD153 761,271 68 AMRESH MOHAN CTD221 2,511,701 69 HE....
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....TD222 1 121 OM PARKASH CTD182 1 122 OM PARKASH CTD142 1 123 OM PARKASH CTD092 1 124 OM PARKASH CTD052 1 125 OM PARKASH CTD263 1 Page 7 of 13 126 OM PARKASH CTD203 1 127 OM PARKASH CTD163 1 128 ROMA SATARA CTD083 1 129 OM PARKASH CTD043 1 130 OM PARKASH CTB051 2 131 OM PARKASH CTB031 1 132 OM PARKASH CTB011 1 133 NARENDER YADAV CTD272 1 134 NARENDER YADAV CTD242 1 135 NARENDER YADAV CTD202 1 136 NARENDER YADAV CTD192 1 137 NARENDER YADAV CTD162 1 138 NARENDER YADAV CTD152 1 139 NARENDER YADAV CTD112 1 140 NARENDER YADAV CTD102 1 141 NARENDER YADAV CTD072 1 142 NARENDER YADAV CTD062 1 143 NARENDER YADAV CTD032 1 144 NARENDER YADAV CTD022 1 145 NARENDER YADAV CTD233 1 146 NARENDER YADAV CTD183 1 N 147 NARENDER YADAV CTD113 1 148 NARENDER YADAV CTD063 1 149 NARENDER YADAV CTD053 1 150 NARENDER YADAV CTD023 1 151 NARENDER YA....
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....R SINGH UTS291 622,732 15 SANJAY GROVER UTE214 206,214 16 ACHLA KAKRIA UTE114 127,718 17 DIVAS VARSHNEY UTE051 165,889 18 PRIYANKA MITTAL UTE161 493,839 N 19 PRIYANKA MITTAL UTE171 495,106 20 20 CAMA AUTOMOBILE PVT LTD UTK092 430,580 21 27 PRANAV SURESH UTE061 201,101 22 RUBY MATHUR UTS184 142,192 23 JUHI JAIN UTE083 181,257 24 14 SWARUP KUMAR UTJ201 1,902,582 25 DEEPAK SRIVASTAVA UTE303 8,832 26 ASHIT SUD UTE243 109,134 27 SUMAN TRIPATHI UTE042 2,695 28 BHARTI AGGARWAL UTE012 4,283 29 29 SHARAD PRAKASH UTE052 1,333 Page 10 of 13 30 MRIDULA RUDRA UTE072 2,831 31 VAIBHAV METHI UTE032 659,362 32 RAMENDRA VERMA UTE122 2,921 33 PALKI DHATARWAL UTS073 142,384 34 PRADEEP CHOWBEY UTE213 105,708 35 AMBA SHARMA UTL122 191,413 36 BHAVESH GARG UTE222 2,539 37 MANU DUA UTE071 86,223 38 KARTIKEYA TRIPATHI UTE062 2,660 39 DLF REAL ESTATE BUILDERS LTD UTE074 1,427,480 40 4....