Web
Analytics Made Easy - StatCounter
Anti-profiteering mechanism: Slew of stay orders by high courts expose NAA lacunae - GST Station

Anti-profiteering mechanism: Slew of stay orders by high courts expose NAA lacunae

Anti-profiteering mechanism: Slew of stay orders by high courts expose NAA lacunae

    A review by FE revealed that at least five firms have got reliefs from the high courts, in what allowed them to defer coughing up an aggregate amount of Rs 430 crore.

    In the past few weeks, different high courts in the country have given stay orders on several fiats of the National Anti-profiteering Authority (NAA) for the goods and services tax (GST), casting doubts on the legal tenability of the way the nearly one-and-half-a-year-old set-up operates and passes orders on alleged cases of profiteering by businesses.

    A review by FE revealed that at least five firms have got reliefs from the high courts, in what allowed them to defer coughing up an aggregate amount of Rs 430 crore.

    The high-profile NAA orders stayed by the courts include those related to Hindustan Unilever (`380 crore), Jubilant FoodWorks (`41 crore), Pyramid Infrastructure (`8.2 crore), Abbott Healthcare (`96 lakh) and Excel Rasayan (`5 lakh).

    The commentary by courts, while the staying the NAA orders in some cases, also boosted hopes that the businesses may be on a strong wicket when it comes to defending themselves in the courts.

    In many cases, the HCs have questioned the constitutionality of the anti-profiteering section of the GST Act because of lack of a set of rules or methodology to determine what constitutes ‘profiteering’ and how to calculate the amounts garnered by a business through it.

    The NAA, the apex payer of the three-tier anti-profiteering mechanism which includes state-level screening committees and a standing committee at the national level, was approved by the Cabinet in November 2017. As it was constituted, apprehensions were aired by the business community, but the then revenue secretary Hasmukh Adhia had said the anti-profiteering clause in the GST law would be seldom invoked and used only in cases of mass importance and of a national import.

    He said the clause was meant to be a deterrent and an enabling one so that reduction in tax incidence due to the GST — via lower rates/input tax credit — is passed on to consumers. However, it turned out that the NAA indeed passed a few orders that could potentially hit leading firms, while it hasn’t been as non-intrusive as the industry wanted it to be.

    “Section 171 of the CGST Act will certainly have to cross the barrier of constitutional validity at some stage and has been a subject matter of dispute. This was first raised in the petition filed by us in case of a Gurgaon-based real estate player. It is expected that the NAA orders now may be stayed when the matters are argued before Courts till the aspect of constitutional validity is decided,” said Abhishek A Rastogi, partner at Khaitan & Co.

    A government official also said on condition of anonymity that in these cases, the government may not the final court rulings in its favour. This is because NAA has failed to prescribe a profiteering methodology and related rules despite the law mandating it to do so, he added.

    In the latest instance, the Delhi High Court passed an interim stay order on recovery of profiteered amount from Jubilant FoodWorks. It noted that there was a prima-facie case in contention that no methodology of anti-profiteering has been prescribed. Abhishek Jain, tax partner at EY said: “While the court in the this order (Jubilant FoodWorks) has as well recognized the aspect of there being no concrete methodology for determining profiteering, an additional point of credence has been the fact of there being no judicial member in the NAA and the lack of appeal mechanism.”

    NAA was constituted in November 2017 for period of two years. It has delivered 60 orders so far where it found businesses guilty of profiteering in over a dozen cases.

    A standing committee at the central level vets complaints that have multi-state implications while screening committees in each state deal with local complaints. These committees either dispose of the allegations or pass them on to Director general of anti-profiteering (DG-AP) for a detailed investigation. The DG-AP report is then considered by the NAA, headed by the chairman, for passing the final order.

    Source- Financial Express.

COMMENTS

WORDPRESS: 0
DISQUS: 0