1. The present Report dated 27.01.2021 has been received from the the Director-General of Anti-Profiteering (DGAP) after a detailed investigation as per the directions contained in this Authority’s Order No. 81/2020 dated 10.12.2020. The brief facts of the case are that the DGAP had submitted an Investigation Report dated 23.03.2020 before this Authority in the case of Respondent. This Authority, vide its Order No. 81/2020 dated 10.12.2020 upheld the investigation and profiteered amount reported by the DGAP for the period 01.07.2017 to 30.06.2019 and directed the DGAP to further investigate the case till the time of issuance of the occupancy certificate to the Respondent from the perspective of Section 171 of the CGST Act, 2017.

2. The DGAP vide his Report dated 27.01.2021 has inter-alia submitted the following points:-

I. The period covered by the current investigation is from 01.07.2017 to 08.08.2019 i.e. the date when the Respondent received the Occupancy Certificate (00) which was extended in terms of this Authority Order No. 81/2020 dated 10.12.2020.

II. As per the directions of this Authority vide Order. No. 81/2020 dated 10.12.2020; the case was to be re-investigated based on the fresh data up to the 00 period i.e 08.08.2019 hence, the Respondent vide letter dated 31.12.2020 was asked to submit documents concerning issues raised in Para 28 of the aforesaid Order. The Respondent submitted his reply vide letters/e-mails dated 08.01.2021, 15.01.2021, and 25.01.2021. The Respondent stated that the Project “Suncity Avenue-102” comprises 761 residential units and 51 commercial shop units. As per the DGAP’s report dated 23.03.2020, while computing the profiteered amount the area of residential units only had been considered whereas the area of the commercial shop units had not been taken into consideration. However, in the total input tax credit; ITC of commercial shop units was also included. Hence, the ratio of turnover and ITC given in the report dated 23.03.2020 was incorrect and the said profiteered amount was required to be recomputed after considering the area of commercial shop units as per the practice followed by this Authority in all other cases.

III. The Respondent submitted the following documents/information to the DGAP:

a. GSTR-1 & GSTR-3B returns for the period from July 2019 to August 2019.

b. Details of input tax for the period from July 2019 to August 2019, along with reconciliation with GSTR-3B Returns.

c. Electronic Credit Ledger for the period from ‘July 2019 to 08.08.2019.

d. Copy of O.C. dated 08.08.2019.

e. List of home buyers in the project “Suncity Avenue-102” from April 2016 to 08.08.2019.

f. Details of ITC of GST for the period 01.07.2019 to 08.08.2019.

IV. It was observed that the contentions of the Respondent were correct as no Commercial shop units had been sold till receipt of the Occupancy Certificate and if this area was to be taken in computation then proportionate CENVAT credit/Input tax credit had to be allocated for this area. If CENVAT credit/Input tax credit was not allocated for this area, then the ratio of turnover to Cenvat/ITC would be incorrect. Accordingly, the profiteering had been calculated by adding the total area i.e. Residential flats + commercial shop units and total Cenvat credit/ITC availed. The computation of profiteering up to the period of the Occupancy Certificate had been done by considering the above contention of the Respondent.

V. As per Para 5 of Schedule II and Para 5 of Schedule II of CGST, 2017 the ITC in relation to the residential units which were under construction but not sold was provisional ITC which might be required to be reversed, if such units remain unsold at the time of issue of the Occupancy Certificate, in terms of Section 17 (2) & Section 17 (3) of the CGST Act, 2017. Therefore, the ITC on the unsold units will not fall within the ambit of the investigation.

VI. Before the GST regime, the service of construction of affordable housing provided by the Respondent, was exempted from Service Tax, vide Notification No. 25/2012-ST dated 20.06.2012, as amended by Notification No. 9/2016-ST dated 01.03.2016. Therefore, the Respondent was not eligible to avail the CENVAT credit of Central Excise Duty paid on the inputs or Service Tax paid on the input services, as per the CENVAT Credit Rules, 2004, which were in force at the material time. However, the Respondent was eligible to avail credit of Service Tax paid on the input services (CENVAT credit of Central Excise Duty was not available) for the commercial shop units sold by him. The Respondent was also eligible to avail ITC of VAT paid on the inputs. Further, post-GST, the Respondent could avail FTC of GST paid on all the inputs and input services including the sub-contracts. From the information submitted by the Respondent for the period April 2016 to 08.08.2019, the details of the ITC availed by them, his turnovers from the project “Suncity Avenue 102′ the ratios of ITCs to the turnovers, during the pre-GST (April 2016 to June 2017) and post-GST (July 2017 to 08.08.2019) periods, were furnished as given in table-‘A’ .

Table-A

(Amounts in Rs.)

VII. As per table A above 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 2.14% and during the post-GST period (July 2017 to 08.08.2019), it was 5.21% for the Project “Suncity Avenue 102”. This clearly confirms that post-GST, the Respondent had benefited from additional ITC to the tune of 3.07% [5.21% (-) 2.14%] of the turnover.

VIII. It was observed that the Central Government, on the recommendation of the GST Council, had levied 18% GST (effective rate was 12% given 1/3rd abatement for land value) on construction service, vide Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017. The effective GST rate on construction service in respect of affordable and low-cost houses up to a carpet area of 60 square meters per house was further reduced from 12% to 8%, vide Notification No. 1/2018-Central Tax (Rate) dated 25.01.2018.

IX. Given the change in the GST rate after 01.07.2017, the issue of profiteering had been examined in two parts, i.e., by comparing the applicable tax rate and ITC available in the pre-GST period (April 2016 to June 2017) when only [email protected] 5.25% was payable with (1) the post-GST period from 01.07.2017 to 24.01.2018 when the effective GST rate was 12% and (2) with the GST period from 25.01.2018 to 08.08.2019, when the effective GST rate was 8%. Accordingly, based on the figures contained in table-`B’ above, the comparative figures of the ratios of ITCs availed/available to the turnovers in the pre-GST and post-GST periods as well as the turnovers, the recalibrated base price, and the excess realization (profiteering) during the post-GST period was tabulated in table-‘B’ below.

Table-B

X. The DGAP has reported that the additional ITC of 3.07% of the turnover should have resulted in a 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.

XI. Based on the aforesaid CENVAT/input tax credit availability pre and post-GST and the details of the amount collected by the Respondent from the home buyers during the period 01.07.2017 to 24.01.2018, 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 comes to Rs. 66,09,938/- The profiteered amount during the period 25.01.2018 to 08.08.2019, comes to Rs. 1,96,46,714/- which included 8% GST on flats. Therefore, the total profiteered amount during the period 01.07.2017 to 08.08.2019 comes to Rs. 2,62,56,652/- which included GST (@ 12% or 8%) on the base profiteered amount of Rs. 2,40,93,132/-.

XII. This Authority vide para-26 of Order. No. 81/2020 dated 10.12.2020 had upheld that the Respondent had only passed on Rs. 2,67,88,794/- (including GST) to 736 homebuyers and the remaining amount of ITC benefit was yet to be passed on to 20 homebuyers. A summary of the benefit of ITC required to be passed on and the ITC benefit claimed to have been passed on to the home buyers, was furnished in table-‘C’ below:-

Table-‘C’

(Amount in Rs.)

XIII. The DGAP has also submitted that from the above table “C”, it was observed that the benefit claimed to have been passed on by the Respondent was less than what should have been passed on to 20 flat owners by an amount of Rs. 6,69,578/-. Further, it was also observed that the benefit claimed to have been passed on by the Respondent was slightly higher than the commensurate benefit, in respect of 716 Home buyers by an amount of Rs. 12,01,721/-. However, this excess benefit claimed to have been passed on to some recipients, cannot be offset against the additional benefit required to be passed on to other home buyers who did not receive the commensurate benefit as each transaction/home buyer was entitled to the commensurate benefit. The excess amount paid to any recipient could only be adjusted against any future benefit that might accrue to such recipients.

XIV. The benefit of additional ITC to the tune of 3.07% of the turnover, has accrued to the Respondent post-GST and the same was required to be passed on by the Respondent to his recipients. Section 171 of the CGST Act, 2017 appears to have been contravened by the Respondent, since the additional benefit of ITC @ 3.07% of the base price received by the Respondent during the period 01.07.2017 to 08.08.2019, has not been completely passed on by him. On this account, the Respondent has realized an additional amount to the tune of Rs. 2,62,56,652/- (including GST). It also appears that the Respondent has passed on the ITC benefit of Rs. 2,67,88,794/- to 736 homebuyers as mentioned in above Table-C supra. Further, from the above, it was also observed that the Respondent was required to pass an additional amount of Rs. 6,69,578/- including both the profiteered amount @3.07% of the base price and GST on the said profiteered to the other recipients (20 home buyers). Also, the Respondent had supplied construction services in the State of Haryana only.

3. The above Report was carefully considered by this Authority and a Notice dated 04.02.2021 was issued to the Respondent to explain why the Report dated 27.01.2021 furnished by the DGAP should not be accepted and his liability for profiteering in violation of the provisions of Section 171 should not be fixed. Further opportunity of hearing/document submission were also given to both the parties on 15.02.2021, 25.03.2021, 12.04.2021 and 12.04.2022.

4. The Respondent has filed his submissions on 15.02.2021 wherein the Respondent has inter-alia submitted the following points:-

(a) He has already passed on ITC benefit amounting to Rs. 2,67,88,794/- to the customers as was evident from Table-D of Para 15 of Order No. 81/2020 dated 10.12.2020 passed by this Authority. The said fact has also been mentioned by the DGAP in his report dated 27.01 2021.

(b) As per the said report of the DGAP dated 27.01.2021, the profiteering amount has been computed as Rs. 2,62,56.652/-whereas the Respondent has already suo-moto passed on the ITC benefit of Rs. 2,67,88,754/ resulting in excess benefit passed on to the 716 home buyers amounting to Rs. 12,01,721/.

(c) As per the Table-C of Para-16 of the DGAP’s report dated 27.01.2021 further benefit of Rs 6,65,578/- is to be passed on to the 20 customers only. Considering the said facts and the confirmation of the suo-moto passing of the ITC benefit, there is no scope of framing allegation for gross contravention of the provisions of Section 171 of the CGST Act, 2017 since the benefit of Rs 6,69,5781- only is required to be passed on and alleged contravention of Rs. 2,62,56,6521- is not correct.

5. On the above submissions of the Respondent, the DGAP submitted his clarifications dated 01.03.2021 in terms of Rule 133 (2A) wherein the DGAP reiterated the facts already submitted vide his Report dated 27.01.2021. The quasi-judicial proceedings in the matter could not be completed by the Authority due to the lack of required quorum of members in the Authority during the period 29.04.2021 till 23.02.2022, and the minimum quorum was restored only w.e.f. 23.02.2022 and hence the matter was taken up for proceedings vide Order dated 03.03.2022 and the Respondent was given an opportunity of being heard in person on 12.04.2022.

7. In response the Respondent filed his submissions dated 11.04.2022 wherein, he accepted the DGAP’s Report dated 27.01.2021 and also attached confirmed sample copies of acknowledgments, no grievance letters, tax invoices cum demand letters issued by the Respondent to the customers, evidencing the passing of profiteering amount (benefit of ITC) to the customers as a suo-moto endeavor to pass on the amount of profiteering to the customers by abiding with Section 171 of the CGST Act, 2017. He further requested that considering his suo-moto action of passing on the profiteered amount (benefit of ITC) to the customers this Authority should conclude the case.

8. We have carefully considered the Report furnished by the DGAP and the clarifications filed by him and the record of the case and we find that this Authority vide its Order No. 81/2020 dated 10.12.2020 had directed the DGAP to further investigate the case till the date of Occupancy Certificate. This Authority finds that vide the earlier Report dated 23.03.2020 the DGAP had failed to consider the area of the commercial shop units, however, the ITC on the same had been considered while calculating profiteering. Based on the fresh data the DGAP has submitted the Report dated 27.01.2021. The Authority finds that the Respondent was given the benefit of ITC on the supply of Construction Services after the implementation of GST w.e.f. 01.07.2017 and the Respondent was required to pass on such benefit of ITC to the homebuyers by way of commensurate reduction in prices in terms of Section 171 of the CGST Act, 2017. However, it is observed that the benefit was not commensurately passed on by the Respondent to his recipients, taking into account the aforesaid Input Tax Credit availability post GST and the details of the amount collected from the home buyers during the period 01.07.2017 to 08.08.2019, the amount of benefit of ITC not passed on to the recipients or in other words, the profiteered amount comes to Rs. 2,62,56,652/- which includes GST. Further, The Respondent claimed that he had already passed on a substantial amount of GST ITC per the requirements of Section 171 of the CGST Act, 2017 to the homebuyers. The Respondent had submitted that he had passed on the benefit of Rs. 2,67,88,794/- to 736 homebuyers.

9. Given the above facts, this Authority observes that the benefit of additional Input Tax Credit of 3.07% of the turnover has accrued to the Respondent for the project “Suncity Avenue 102”. This benefit was required to be passed on to the recipients, however, the same was not done commensurately by the Respondent. Section 171 of the CGST, 2017 has been contravened by the Respondent, in as much as the additional benefit of ITC @3.07% of the base price has not been passed on by the Respondent to 736 recipients. These recipients were identifiable as per the documents provided by the Respondent, giving the names and addresses along with Unit no. allotted to such recipients. Therefore, the total additional amount of Rs. 2,62,56,652/- was required to be returned to the such homebuyers.

10. This Authority finds that the Respondent vide his letter dated 11.04.2022 has accepted the DGAP’s Report and requested to conclude the case. The Respondent has also claimed that he has passed on excess ITC benefit of Rs.12,01,7201- to 716 customers and only Rs. 6,69,578/- is required to be passed on to 20 customers.

11. From the above discussions and acceptance of the DGAP Report dated 27.01.2021 by the Respondent, the Authority determines that the Respondent has profiteered an amount of Rs. 2,62,56,652/-. Therefore, given the above facts, the Authority under Rule 133 (3) (a) of the CGST Rules orders that the Respondent shall reduce the price to be realized from the buyers of the flats commensurate with the benefit of ITC received by him. The details of the recipients and benefit which is required to passed on to each recipient/homebuyer (including Applicant No. 1) alongwith the details of the unit are contained in the Annexure’ A’ to this order. The Authority directs that such profiteered amount as determined shall be passed on/returned by the Respondent to the recipients of supply alongwith interest @18% from the date such amount was profiteered by the Respondent uptil the date such amount is passed on/returned to the respective recipient of supply.

12. For the reasons mentioned hereinabove and in the given facts and circumstances and also stated position of law we find that the Respondent has denied the benefit of ITC to the buyers of his flats in contravention of the provisions of Section 171 (1) of the CGST Act, 2017. We hold that the Respondent has committed an offence by violating the provisions of Section 171 (1) during the period from 01.07.2017 to 08.08.2019, and therefore, he is liable for imposition of penalty under the provisions of Section 171 (3A) of the above Act. However, perusal of the provisions of the said Section 171 (3A) shows that it has been inserted in the CGST Act, 2017 w.e.f. 01.01.2020 vide Section 112 of the Finance Act, 2019 and it was not in operation during the period from 01.07.2017 to 08.08.2019 when the Respondent had committed the above violation. Hence, the said penalty under Section 171 (3A) cannot be imposed on the Respondent retrospectively. Accordingly, notice for the imposition of penalty is not required to be issued to the Respondents.

13. The concerned jurisdictional CGST/SGST Commissioner is also directed to ensure compliance of this Order. It may be ensured that the benefit of ITC as determined by the Authority as per the Annexure A of this Order be passed on along with interest @18% to each homebuyer, if not already passed on. In this regard an advertisement may also be published in a minimum of two local Newspapers/vernacular press in Hindi/English/local language with the details i.e. Name of the builder (Respondent) – M/s Suncity Projects Pvt Ltd., Project- “Suncity Avenue-102”, Location- Gurugram, Haryana and amount of profiteering Rs.2,62,56,652/- so that the Applicants along with Non-Applicant homebuyers can claim the benefit of ITC which has not been passed on to them. Homebuyers may also be informed that the detailed NAA Order is available on Authority’s website www.naa.gov.in. Contact details of concerned Jurisdictional Commissioner CGST/SGST for compliance of this Authority’s order may also be advertised through the said advertisement.

14. Further, this Authority as per Rule 136 of the CGST Rules 2017 directs the concerned jurisdictional CGST/SGST Commissioner shall also submit a Report regarding the compliance of this order to the Authority and the DGAP within a period of 4 months from the date of receipt of this order.

15. Further, the Hon’ble Supreme Court, vide its Order dated 23.03.2020, Suo Moto Writ Petition (C) No. 03/2020 while taking suo-moto cognizance of the situation arising on account of the Covid-19 pandemic, has extended the period of limitation prescribed under the 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, as is clear from the said Order which states as follows:-

“A period of limitation in all such proceedings, irrespective of the the limitation prescribed under the general law or special laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.”

Further, the Hon’ble Supreme Court, vide its subsequent Order dated 10.01.2022 has extended the period(s) of limitation till 28.02.2022 and the relevant portion of the said Order is as follows:-

“The Order dated 23.031020 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.

16. A copy each of this Order be supplied free of cost to the Applicants, the Respondent, Commissioners CGST/SGST Haryana, the Principal Secretary (Town and Country Planning), Government of Haryana as well as HRERA for necessary action. File be consigned after completion.

FOR FULL JUDGEMENT CLICK ON PDF