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2022-TIOL-02-NAA-GST Director General of Anti-Profiteering Vs Lodha Developers Ltd
GST - Anti-Profiteering - s.171 of the CGST Act, 2017 - Applicant had alleged that the Respondent had resorted to profiteering in respect of the supply of construction services related to the purchase of flat no. 1201 in the project "Lodha Primo", Parel - It was also alleged that the respondent had not passed on the benefit of Input Tax Credit (ITC) by way of commensurate reduction in the price of the apartment purchased by him - DGAP in its report has submitted that the anti-profiteering provisions could not be applied to the project as the same was not in existence before the implementation of the GST and was launched in the GST regime; that the RERA registration was obtained in the month of January 2018 and the commencement certificate was issued on 07.05.2018 based on IOD dated 21.11.2017; that there was no price history of the units sold in the pre-GST which could be compared with the post-GST base price to determine whether there was any profiteering - In the present case, the booking and the the receipt of payment had taken place post introduction of GST, therefore, there was no pre-GST tax rate or ITC structure which could be compared with post-GST tax rate and ITC and, therefore, provisions of s.171 were not attracted in the present case - DGAP in its supplementary report has observed that the bookings for the project started from February 2018 and the applicant himself had booked the apartment on 20.02.2018. Held: Applicant has asked for benefit of reduction in GST rate from 12% to 5% - The builders were given an option to pay under Composition Scheme w.e.f 01.04.2019 vide notification 3/2019-CTR at the reduced rate of tax from 12% to 5% with NIL ITC - It was observed that the respondent had not opted for composition scheme - The applicant no. 1 had an impression that the respondent had opted for the composition at a lesser rate and, therefore, the rate reduction or ITC benefits was not passed on by the respondent to him and which was not true - Personal hearing was held on 18.03.2021, however, before the order could be passed, the quorum of the forum fell below the minimum requirement of three Members as provided under rule 134 and which remained till 23.02.2022 - With the joining of two new Technical Members in February, 2022, the quorum was restored on 23.02.2022 and a personal hearing was granted on 14.03.2022 and rescheduled and took place on 01.04.2022 -cSince the commencement certificate was obtained for the said project post introduction of GST only and also there has not been any reduction of GST rates in the instant case, the provisions of s.171 of the Act dealing with Anti-profiteering cannot be made applicable to the said project in view of the fact that there was no additional ITC which had been utilised by the respondent and which was relevant for establishing allegation of profiteering - Further, no demand has been raised by the respondent upon then applicant in the pre-GST regime - Emails exchanges and telephonic talks between the applicant and respondent regarding grant of additional ITC benefits to be adjusted at the time of possession are not relevant material in the present proceedings - Authority agrees with the findings of the DGAP that the provisions of s.171 have not been contravened in the present case: NAA GST - As per provisions of rule 133(1), order was required to be passed within a period of six months from the date of receipt of report from DGAP under rule 129(6) - Since report was received on 05.03.2020, order was required to be passed on or before 04.09.2020 - However, order could not be passed due to COVID-19 pandemic - In view of Supreme Court order dated 10.01.2022, clarifying that the period from 15.03.2020 to 28.02.2022 shall stand excluded for computing the periods prescribed under the law, present order is to be considered as legally proper and passed within the mandated period: NAA
- Application dismissed: NAPA
2022-TIOL-01-NAA-GST
Director General of Anti-Profiteering Vs Alton Buildtech India Pvt Ltd
GST - Anti-Profiteering - s.171 of the Act, 2017 - Profiteering Authority had inter alia concluded that the profiteered amount in respect of Aangan Project - Phase I is Rs.6,24,48,008/- which includes GST on the base profiteered amount of Rs.5,71,81,399/-; that the said amount shall be paid by the respondent to the eligible buyers within a period of three months along with interest @18%; that the DGAP was also directed to investigate the Phase II and Phase III of the Aangan project as per rule 133(5) of the Rules r/w s.171(2) of the Act and submit a report accordingly - It is revealed that the project is an affordable Housing project as notified by Town & Country Planning Department, Government of Haryana vide Notification dated 19.08.2013; that the RERA registration for the Phase II of the project was done on 22.12.2017 and the Phase II was advertised in newspapers on 18.01.2018 and 25.01.2018 and finally the draw of lots for allotment of flats was done on 12.06.2018 - Thus the project had been registered in post-GST, booking and receipt of payments have taken place post introduction of GST and there is no pre-GST tax rate or input tax credit structure which can be compared with the post-GST tax rate and input tax credit in respect of the said Phase II - DGAP has also submitted that the Environment clearance for Phase-II was issued on 02.05.2019 and thereafter the construction work had started at site - Accordingly, it is evident that the service rendered by the Respondent by way of construction and development of the project Phase II was not in existence during the pre-GST regime - Also the Phase III of the project is it yet to be launched and has not been registered with RERA till date. Held: For Phase II, the draw of lots, allotment of units and receipt of payments has taken place in the post-GST era - It is also apparent from the record that the Respondent has received the Environment Clearance from the State Environment Impact Assessment Authority Haryana on 02.05.2019 before which he could not have started the execution of the project - On the basis of the sequence of the above events, it could be safely concluded that the above project has been started after coming in to force of the GST w.e.f. 01.07.2017 - It is also clear that the homebuyers were allotted flats only after coming in to force of the GST w.e.f. 01.07.2017 - As the project Phase II was launched after implementation of the GST w.e.f. 01.07.2017, apparently there was no pre-GST tax rate or input tax credit availability that could be compared with the post-GST tax rate and the input tax credit, to determine whether there was any benefit that was required to be passed on by way of reduced prices - Phase III of the project it is yet to be launched and had not been registered with RERA till date - Based on the above facts, it is established that the Respondent has not contravened the provisions of Section 171(1) of the CGST Act, 2017 and Authority finds no merit in the instant case and the same is accordingly dismissed: NAA GST - Limitation - The quasi-judicial proceedings in the matter could 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 the Applicant No. 1 was given one more opportunity to file written submissions against the DGAP's Report - Further, Supreme Court, vide its Order dated 23.03.2020, while taking suo moto cognisance of the situation arising on account of Covid-19 pandemic, has extended the period of limitations prescribed under general law of limitation or any other specified laws (both Central and State) including those prescribed under Rule 133(1) of the CGST Rules, 2017 - Further, Supreme Court, vide its subsequent Order dated 10.01.2022 has extended the period(s) of limitation till 28.02.2022 - Accordingly, the present Order falls within the limitation prescribed under Rule 133(1) of the CGST Rules, 2017: NAA
- Application dismissed: NAPA |
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