Delhi High Court - Orders
Ats Homes Pvt Ltd vs Union Of India & Ors on 27 March, 2023
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
$~40
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3866/2023
ATS HOMES PVT LTD ..... Petitioner
Through: Mr. Puneet Agarwal,
Ms. Purvi Sinha, Mr.
Ketan Jain & Mr. Chetan
Kumar Shukla, Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Anshuman, Sr. Panel
Counsel for R1
Ms. Anushree Narain, SC
for R2
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
HON'BLE MR. JUSTICE AMIT MAHAJAN
ORDER
% 27.03.2023 CM APPL. 15036/2023(for exemption)
1. Exemptions allowed, subject to all just exceptions.
2. The application stands disposed of.
W.P.(C) 3866/2023 & CM APPL. 15035/2023 (for interim relief)
3. The petitioner has filed the present petition, inter alia, impugning an order dated 28.09.2022 passed by the National Anti-Profiteering Authority (Respondent No. 3), holding that the petitioner is guilty of profiteering in as much as it has not passed the Input Tax Credit (ITC) on the supply of construction services Signature Not Verified to the flat buyers. Respondent no. 3 has also held that the Digitally Signed By:HARMINDER KAUR Signing Date:02.04.2023 12:50:37 petitioner has violated Section 171 of the Central Goods and Services Tax Act, 2017 (CGST Act).
4. Respondent no. 3 has also determined that the petitioner has realised an additional amount of ₹12,78,61,819/-, which includes the profiteered amount @5.69% of the taxable amount (base price) and GST @12% on the said amount from 535 recipients during the period of 01.07.2017 to 30.09.2020.
5. The petitioner is, essentially, aggrieved by the methodology adopted for arriving at the said quantification. It is averred that the designated authority had sent communication to various customers of the petitioner (flat buyers) but had received response from only 90 of them. The said flat buyers had confirmed that the benefit of reduction had been transferred to them. However, no response was received from the other flat buyers.
6. Respondent no. 3 has proceeded on the basis that all flat buyers have not confirmed that they had received the benefit of the ITC; the petitioner has therefore violated Section 171 of the CGST Act.
7. Learned Counsel for the petitioner states that the said methodology is, ex facie, arbitrary and unreasonable. The determination has been made on mere surmises and speculations, without any confirmation from the concerned flat buyers and without any material that the petitioners had not passed on the ITC as claimed by it.
8. Issue notice.
9. Learned Counsel for Respondent nos. 1 and 2 accept notice.
10. Notice shall go to the other respondents by speed post as Signature Not Verified well as dasti. Digitally Signed By:HARMINDER KAUR Signing Date:02.04.2023 12:50:37
11. Learned Counsel for the petitioner state that in matters where the constitutional validity of Section 171 of the CGST Act and Rule 122 of the CGST Rules have been challenged, a coordinate Bench of this Court has passed interim orders, staying the penalty and interest and restraining further investigations in respect to other projects of the petitioners (order dated 27.01.2021 in M/s BPTP Ltd. v. Union of India & Ors.; W.P.(C) 990/2021 and order dated 06.08.2020 in Whirlpool India Ltd. v. Union of India & Ors. in W.P.(C) 4957/2020.)
12. In view of the above, the respondents are restrained from conducting any further investigation into other projects that has been suo motu ordered by Respondent no. 3. There shall also be a stay on the penalty and interest as demanded.
13. List on 29.08.2023.
VIBHU BAKHRU, J AMIT MAHAJAN, J MARCH 27, 2023 "SS"
Signature Not Verified Digitally Signed By:HARMINDER KAUR Signing Date:02.04.2023 12:50:37