Director General of Anti-Profiteering v. Bengal Emami Housing Ltd.

01 · Facts of the case and issues

Sudhamoy Saha complained under Rule 128 of the CGST Rules that Bengal Emami Housing Ltd. had not passed on additional ITC benefit to buyers in Swan Court, Kolkata. The judgment records a project associated with the West Bengal Housing Board, with LIG (ASHA), MIG (Abhilasha) and HIG (Akankhya) apartments. The investigation covered 1 July 2017 to the Occupancy Certificate dated 4 August 2022 and the project had 440 units. The CCI-directed reinvestigation following Reckitt is recorded history, rather than this Tribunal’s final quantification.

The original DGAP proposal was Rs. 13,35,51,188 inclusive of GST. Its report is dated 13 December 2024 in paragraphs 4, 11 and 19, but paragraph 3 prints 15 December 2024. The developer disputed the project-wide methodology, sought recognition of genuine cost escalation and documented benefit already passed on, and contended that the separately regulated LIG/MIG prices admitted recovery of direct costs only. The complainant disputed the cost allowance and HIG pass-through evidence, sought buyer-wise calculation without cross-buyer set-off, and questioned 14 allegedly omitted units.

DGAP’s 15 April 2026 clarification accepted project-wide workings and a 14 March 2026 CA certificate covering actual increases in cement, steel, sand and stone-chip costs. Its revised Table B allowed Rs. 5,08,25,698 cost escalation. The printed pre/post credit-to-purchase ratios were 7.18% and 17.28%, a 10.10-percentage-point increment. Revised savings of Rs. 7,34,18,630 over 5,42,285 square feet yielded the displayed Rs. 135.39 per square foot; the printed calculation for 5,20,458 sold square feet gave Rs. 7,04,64,809 plus Rs. 84,55,777 GST, totaling Rs. 7,89,20,586. These are the report’s project-wide figures, not the final HIG-only award. Displayed unit rates are rounded and are not substituted for the source totals.

Source: Paragraphs 1–7, physical pp. 2–8; original and revised Table B, physical pp. 5–6; investigation period and OC, paragraphs 17 and 25, physical pp. 13 and 17.

02 · Discussion and reasoning of the Hon’ble Court

The Tribunal independently framed liability, pass-through, interest and penalty issues. It accepted that additional ITC had accrued, but found the LIG/MIG pricing mechanism materially different from HIG: on this record, statutory prices were restricted to direct costs while overheads, administrative expenses and associated tax components were borne by the developer. It distinguished AMB Cinemas LLP, NAPA/4/PB/2025, dated 16 April 2026, because cinema prices were periodically monitored, whereas no subsequent revision of the one-time housing price fixation was shown. It therefore attributed no profiteering to LIG/MIG units in this project and confined liability to HIG. This is a fact-specific finding, not a general exemption for controlled-price or lower-income housing.

The 14-unit objection failed: nine units were sold after the 4 August 2022 OC and five remained unsold. Paragraph 18 refers to Schedule III paragraph 5 and the conditions applicable to a sale of a building. The Tribunal found their exclusion explained by transaction status and the statutory scheme; it did not declare all post-OC transactions exempt regardless of statutory conditions.

DGAP’s revised verification used buyer correspondence, customer-wise workings, credit notes, application forms, ledgers and the CA certificate, replacing reliance on email verification alone. Paragraph 18 records the DGAP’s finding that Rs. 5,74,63,690 reached HIG allottees through booking-form price reductions for July 2017–June 2018, July 2018 newspaper-advertised reductions, and later application-form reductions until the OC. These are findings about evidence in the proceedings; the underlying buyer instruments have not been independently audited for this note.

Revised Table C records Rs. 9,06,90,657 aggregate documented benefit against Rs. 7,89,20,586 aggregate computation, yet Rs. 2,16,72,591 remained due to 325 all-category buyers: Rs. 1,56,64,589 for 275 buyers plus Rs. 60,08,002 for 50 buyers. Excess amounts for other buyers cannot cancel those positive shortfalls. Paragraph 19 expressly rejects cross-buyer adjustment because each recipient has an independent entitlement. The Tribunal then fixes Rs. 70,58,488 for HIG alone; 325 must not be presented as its final HIG recipient count.

Paragraph 19’s superseded history prints Rs. 13,35,51,188 less Rs. 77,63,930 as Rs. 12,60,55,300. That subtraction actually gives Rs. 12,57,87,258. The inconsistent printed balance is preserved as a source discrepancy, not silently corrected or treated as a revised operative liability.

Source: Evidence and revised Table C: paragraph 5, physical pp. 6–7. Tribunal’s own category reasoning: paragraphs 11–16, physical pp. 10–13. Unit status, HIG price reductions, buyer-specific calculation and final amount: paragraphs 17–20, physical pp. 13–15.

03 · Judicial decision and operative relief

GSTAT directed Bengal Emami Housing Ltd. to pass on Rs. 70,58,488 inclusive of GST to eligible HIG homebuyers identified in Annexure 1 to the DGAP clarification/report dated 15 April 2026. Rule 133(3)(b) interest is 18% per annum from each collection of the higher amount until actual refund. The Tribunal treats interest as compensatory restitution of the recipients’ time value of money. Although paragraph 21 describes the provision as discretionary, the Tribunal found no reason to depart from 18%; that description is attributed to this order, not stated as a universally settled rule. The operative direction does not use the complainant’s proposed uniform 1 July 2017 interest commencement.

Because the contravention period ran from 1 July 2017 to 4 August 2022 and extended beyond the 1 January 2020 commencement of Section 171(3A), the Tribunal held a penalty of 10% of the profiteered amount leviable. Paragraph 27 provides that this penalty stands waived if the entire profiteered amount is passed to eligible homebuyers within thirty days from the date of passing the order. This conditional waiver is not a finding that the condition was fulfilled, and it does not dispense with interest. No independently verified penalty debt or actual recovery is calculated here.

Paragraph 28 separately requires compliance to be reported to the jurisdictional Commissioner within three months from the date of the order, with a copy to DGAP. The matter was disposed of and the order pronounced in open court. The form and final typed date are 2 September 2026; both visible digital-signature stamps are dated 3 September 2026. Later refunds, interest payments, fulfilment of the waiver condition and the compliance report remain unverified.

Source: Interest: paragraphs 21–24, physical pp. 15–16. Penalty and operative directions: paragraphs 25–31, physical pp. 17–18. Form identity and summary: physical pp. 1–2. Typed date and digital-signature stamps: physical p. 18.

04 · In favour of

Final substantive HIG-only liability, following independent category, evidence, buyer-entitlement, interest and penalty analysis. The earlier project-wide DGAP figures are superseded for operative relief; neither total exoneration nor completed compliance follows from the reduction.

Source: Paragraphs 11–31, physical pp. 10–18, especially paragraphs 16, 19–20 and 26–28.