TaxTMI 
TaxTMI 
2022 (6) TMI 526
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....eering by the Respondent while he had purchased Duplex Row House-B3 in the Respondent's project "Sahej Valley", situated at Dandipalli, Rourkela. The Applicant No. 1 had also alleged that the Respondent had not passed on the benefit of ITC although he had charged GST @12% w.e.f. 01.07.2017 from the said Applicant. This application was forwarded to the Odisha State Screening Committee on Anti-Profiteering on 05.02.2019 and was considered by the Standing Committee on Anti-Profiteering in its meeting held on 11.03.2019, wherein, the Standing Committee referred the complaint to the DGAP for conducting detailed investigation on the allegations levelled by the Applicant No. 1. 2. The said application was examined by the Director General of Anti-Profiteering and the Investigation Report dated 20.09.2019 under Rule 129 (6) of the Rules, was furnished to this Authority. Vide the said Report, it was concluded by the DGAP that the construction service was completed well before the introduction of GST, and any liability of GST of the Applicant No. 1 was only on account of the dues left on account of his booking of the unit prior to issue of Completion Certificate. The DGAP further repor....
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....igible for the benefit of ITC? 4. On receipt of the aforesaid Interim Order from this Authority, the DGAP re-examined the documents/information submitted by the Respondent and cross-verified them with his Investigation Report dated 20.09.2019. Further, letter dated 26.08.2020 followed by reminder letters dated 07.09.2020 & 30.09.2020 and summons dated 03.11.2020 & 09.12.2020 were issued to the Respondent by the DGAP, seeking clarifications. The DGAP also sent a letter dated 09.12.2020 to the jurisdictional office (State Jurisdiction) of the Respondent i.e. the Additional Commissioner (State Tax), CT & GST Territorial Range, Sundergarh, Rourkela, to collect the necessary documents. The State Jurisdiction Office submitted his reply to the DGAP vide e-mails dated 11.12.2020 & 22.12.2020. 5. On the basis of the above facts, the DGAP has re-investigated the matter and submitted his Investigation Report dated 30.12.2020 to this Authority, wherein, the DGAP has submitted as under - (a) That as directed by this Authority in its I.O. No. 13/2020 dated 19.03.2020; all the nine issues as mentioned above, had all been duly covered in the report. (b) That the Respondent ....
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....r development or planning authority would be treated as completion certificate for the purposes of determining chargeability of service tax." The DGAP has also stated that he had received an email dated 22.12.2020 from CT & GST Office, Rourkela-1, Circle- Jurisdiction office (State Administration) of the Respondent. The officer had forwarded the reply of Respondent to the DGAP. A copy of completion certificate issued by Ar. Arijit Sarkar bearing hand written note "Registration No. CA/2000/27049" Screenshot of verification from website was enclosed in the footnote of said certificate. From the said note & enclosed screenshot, the DGAP has claimed that the Architect Mr. Arijit Sarkar was registered with Council of Architecture having Registration No.CA/2000/27049. Accordingly, Completion Certificate was valid and accepted in the DGAP report. (ii) Which was the competent Authority to issue the completion certificate in the state of Odisha? Reply of the DGAP * The DGAP has also stated that Section 20 of The Orissa Development Authorities Act, 1982, provides for, the Competent Authority to issue the completion certificate. It reads as under: ....
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....is output GST liability in respect of the Repair and Maintenance Service. The Respondent had not availed any GST Credit towards supply of construction service. (v) Whether the Respondent had claimed transitional credit through the TRAN-1 statement filed in respect of the above project? Reply of the DGAP * That the Respondent had claimed total transitional ITC of Rs.16,35,851/- through the IRAN-1 statement filed. Further, vide email dated 29.12.2020, the Respondent had submitted that total transitional ITC of Rs.16,35,851/- was not related to the above project. (vi) Whether the Respondent had availed benefit of additional ITC since July, 2017 till date and he was liable to pass on the same to his buyers? Reply of the DGAP * That, the Respondent hadn't availed benefit of additional ITC since July, 2017 till date towards construction service and he was not liable to pass on the same to his buyers. (vii) Whether the above land owners had sold their shares of the houses and, if so, whether they had passed on the benefit of ITC to the buyers of these houses? Reply of the DGAP * That vide email dated 29.1....
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.... by email dated 11.01.2021 to the DGAP: (a) Certificate of Registration of Sh. Arijit Sarkar in Rourkela Development Authority. (b) Certificate of Registration of Sh. Arijit Sarkar in Council of Architecture. 7. The above Report was received by this Authority from the DGAP on 31.12.2020 and was considered in its sitting held on 05.01.2021 and it was decided to issue Notice to the Applicant No. 1 to file his written submissions and any specific request for hearing, if required, by 20.01.2021. In response to the Notice, the Applicant No. 1 had filed his written submissions on 25.03.2021, wherein, he had made the following submissions: (i) That the reply submitted by the Respondent was concocted, fabricated, baseless and vexatious. (ii) That the Respondent had partially admitted earning of ITC for providing repair and maintenance service only and has clandestinely avoided to admit availment of CENVAT credit in Service Tax Returns during the period from April, 2016 to June, 2017 which was related to the project "Sahej Valley". The Applicant No. 1 further stated that the said constructed buildings of the project were not handed over to their buyers....
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....nd letter from the builder for GST & Registration. The Applicant No. 1 has also enclosed a paper which he has alleged reflected the Service Tax and also GST amount demanded by builder, however, the same was not on any letter head and just a printout of account maintained by him. 10. This Authority has carefully examined the DGAP's Reports and various submissions placed on record. The issues to be decided by the Authority are as under:- (I) Whether there is benefit of additional ITC available to the Respondent which has not been passed on by him to the Applicant No. 1. If yes, then what was the quantum of profiteering? (ii) Whether there is any violation of the provisions of Section 171 (1) of the CGST Act, 2017 by the Respondent? 11. Perusal of the record reveals that the complaint of profiteering is in respect of purchase of a Duplex Row House-B3 in the Respondent's project "Sahej Valley", Dandipalli, Rourkela, Odisha by the Applicant No. 1.The Applicant No. 1 has provided the copy of Allotment letter dated 23.10.2014, money receipts dated 20.12.2014, 29.05.2015, 07.11.2015 and 25.05.2016, Agreement to Sell dated 24.04.2016 and Tri-Partite Agreement....
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.... 1972 (20 of 1972); or (B) chartered engineer registered with the Institution of Engineers (India); or (C) licensed surveyor of the respective local body of the city or town or village or development or planning authority," From the above explanation, it is apparent that Completion Certificate is mandatory to get the benefit of non-chargeability of Service Tax or if there is no such local law requirement then any of the above three documents will fulfil the requirement for not charging Service Tax. Above law requirement is further substantiated by Point 6.2.7 of Education Guide issued dated 20.06.2012 by CBIC which provides: "In terms of Explanation to clause (b) of section 66E in such cases the completion certificate issued by an architect or a chartered engineer or a licensed surveyor of the respective local body or development or planning authority would be treated as completion certificate for the purposes of determining chargeability of service tax." Further, Section 20 of the Orissa Development Authorities Act, 1982, provides as under:- "20. Duration of permissions- Every permission granted under this Chapter shall remain valid up to ....
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....rged any Service Tax or GST to the buyer who has bought the unit post receipt of the Completion Certificate viz one in October, 2017. Further, the Respondent has submitted project wise details of CENVAT/ITC availed for the said period and claimed that he had already obtained the Completion Certificate for the project "Sahej Valley" well before the said period, hence, the question of availing CENVAT/ITC on the construction service did not arise at all. In view of the above facts, it is apparent that the Respondent had obtained his Completion Certificate on 31.03.2016 from the Architect registered under the Rourkela Development Authority, who is a competent authority to issue a Completion Certificate and the same has been confirmed by the DGAP. Since, no Service Tax or GST has been charged from the buyers post receipt of the Completion Certificate dated 31.03.2016, no benefit of ITC/CENVAT credit towards Construction service for the impugned project in the relevant period was availed by the Respondent. 14. A perusal of Section 171 of the CGST Act shows that it provides as under:- (1). "Any reduction in rate of tax on any supply of goods or services or the benefit of ITC s....
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....eceipt of the Report from the DGAP under Rule 129 (6) of the above Rules. Since, the present Report has been received by this Authority on 31.12.2020 the order was to be passed on or before 30.05.2021 However, due to prevalent pandemic of COVID-19 in the Country this order could not be passed on or before the above date. In this regard it would be relevant to mention that the Hon'ble Supreme Court in Miscellaneous Application No 21 of 2022 in MA 665 of 2021 in Suo Moto Writ Petition (C) no. 3/2020, vide its Order dated 10.1.2022 has directed that:- "I. The order 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 or special laws in respect of all judicial or quasi-judicial proceedings. II. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022. III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwit....