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section 73 and 74 of the CGST Act |
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section 73 and 74 of the CGST Act |
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Study of section 73 and 74 of the CGST Act 1) In chapter XV of the CGST Act 2007 under the head of Demand and Recovery provision have been made for determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised which arises under two circumstances of which the first one is for any reasons other than fraud or any wilful mis-statement or suppression of facts to evade tax (sec.73) and the second one is for the reasons of fraud or any willful mis-statement or suppression of facts to evade tax(sec.74) 2) Both of the above sections are procedural in nature since the method of issuance and service of notice, statement showing the details of such demand of tax, interest and penalty are described in sub section (1) to (11) of section 73 and 74 3) The feeder provision for detection of such demand are Sec. 21 (credit distributed in excess by Input Service Distributors) Sec. 51, (Default to deduct TDS) Sec.61(3)(Scruitiny of returns) Sec.64(2) (Summary assessment in special cases) Sec.65(7) (Audit by tax authorities) and Sec.66(6)(Spl. Audit by nominating the Charted Accountants ) As a result of investigation made with reference to the above feeder provisions, and in the following circumstances, it warrants to invoke sec.73 & 74 of the Act i)Tax not paid or short paid 4)The various situations and circumstances would result in tax not paid or short paid. This kind of demand would generally arises on scrutiny of returns the task of which has to be done in terms of section 61 of the Act. During such scrutiny of returns, there may found certain lapses on account of clerical, arithmetical errors, as remained un-matched under section 42 and 43 adopting incorrect rate of tax or claiming of incorrect exemption, due to misclassification of goods, incorrect location of place of supply, time of supply , incorrect quantification of value of supply. For the recovery of this kind of demand, section 73 or section would come to play ii)Erroneously refunded 5) In chapter XI under the head of refunds, various circumstances have been described for refund of tax or interest paid .If there is any refund claimed or issued contrary to the provisions as described under section 54, 55 and 56 of the Act. the provisions of section 73 or section 74 would come into play for the recovery of the incorrect refund so claimed or made. iii)In put tax wrongly availed or utilised 6) In Chapter V under the head of Input tax credit, various eligibility and conditions for taking input tax credit have been described under section 16 to 19. In circumstances of violation of any conditions it would result in recovery of such wrong availment or utilisation of input tax credit, by invoking section 73 and 74 of the Act. With this preliminary reading, let us proceed to the procedurals described under section 73 and 74 of the Act. As already stated, this is a machinery provision for the recovery of demand for which there is time limit for issuance of notice, issuance of orders and also for quantifying the tax, interest and penalty. The rigour of section 74 is stringent than that provided under section 73 since the gravity of the violation falling under the former one is due to fraud,wilful mis-statement or suppression of facts to evade tax. Reasons of fraud or any willful mis-statement or suppressions of facts When inaccuracy of accounting records occurs, there are two possible reasons for the discrepancy: error or fraud. An error is unintentional and often occurs due to computer malfunction or human error, such as carelessness or lack of knowledge. In contrast, fraud is intentionally committed in order to render some gain for the perpetrator. With regard to the willfull mis-statement or suppressions of facts to evade tax,it is to be stated that the words and phrases are not new but they were already in the Central Excise provision under section 11-A(1) of the Act empowers Central Excise officers to initiate proceedings where duty has not been levied or short levied within six months from the relevant date.This period stands extended five years in terms of the proviso to the said section in cases where the duty could not be levied or was short levied or was short paid due to fraud,collusion or willfull mis-statement or suppression of facts etc., Similar dispute with reference to the above provision came up for discussion before the Hon’ble High Court of Karnataka in the case of KIRLOSKAR COMPUTER SERVICE LTD. VERSUS UNION OF INDIA [1997 (6) TMI 35 - KARNATAKA HIGH COURT] wherein it was followed the decision of the Hon’ble Apex court reverting the decision of the Tribunal in the case of Cosmic dye chemicals vs.Collector of Central excise Bombay ..In the said decision, the following passage from the said decision was given as under: "Now so far as fraud and collusion are concerned, it is evident that the requisite intent, i.e., intent to evade duty is built into these very words. So far as misstatement or suppression of facts are concerned, they are clearly qualified by the word "wilful" preceding the words "misstatement or suppression of facts which means with intent to evade duty. The next set of words "contravention of any of the provisions of this Act or Rules" and again qualified by the immediately following words "with intent to evade payment of duty". It is, therefore, not correct to say that there can be a suppression or misstatement of fact, which is not wilful and yet constitutes a permissible ground for the purpose of the proviso to Section 11-A. Misstatement or suppression of fact must be wilful". In another issue, in the decision in 2013 (2) ECS ( 88 ) (Tri - Del) in customs excise & Service tax Appellate Tribunal, Principal Bench, New Delhi Court No. III MAN INDUSTRIES INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, INDORE [2013 (5) TMI 677 - CESTAT NEW DELHI] In this case, it was held that “the fact that the activity of coating was done on the bare pipes manufactured by the appellants themselves was never brought to the notice of the department. Moreover, the fact that figures of coating pipes shown in the excise records were not in respect of the bare pipes received from outside for coating was never brought to the notice of the department. This is also seen from fact of entering two separate contracts with M/s IOCL on the same date was also not brought to the notice of the department. We find that two letters of intent were issued on the same date and addressed to the same person Manish Pathak. This action shows that this was a deliberate attempt to evade duty on the coating charges. The above said two decisions are brought in this article with a view to say that there may be many cases of this like in the past and the present regime of taxation laws as to the issue related to fraud or any willfull mis-statement or suppression of facts to evade tax. But each case depends upon the facts and circumstances in its individual scenario. The CGST provisions no where defines the words such as “fraud”,willfull mis-statement or suppression of facts. But according to the explanation-2 given under section 74, the expression “suppression” shall mean non-declaration of facts or information which a taxable person is required to declare in the return, report or any other documents furnished under this Act or the rules made thereunder, or failure to furnish any information on being asked for, in writing by the proper officer. It would also be appropriate to have a reading over the penal provisions of the Act, wherein in certain offences are considered for penal action. Under the CGST Act,in chapter XIX under the headings “Penalty for certain offences” is dealt with u/s 122 to 127 wherein various penalty for offences have been prescribed and also “punishments for certain offences” as prescribed u/s 132 of the Act. The offences so described consists of both minor and major, intentional or un-intentional, on any wilfulness or otherwise, deliberate or otherwise or fraudulent in nature . The reasons for determination of tax/interest/penalty in cases related to tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised as specified u/s 73 and 74 of the Act. However,it is no doubt that the gravity depends upon facts and circumstances of each case. As already stated, section 73 and 74 of the Act provides certain procedures described with “time limit for issuance of notice” ,”service of notice/statement”, time limit for issuance of orders, effect of the notices or orders issued etc., It order to read the relevant procedures, they are extracted below in a tabulated form so as to catch them at a glance on issue wise and section /sub-section wise
Note : 1 The provisions of section 73(11) of the CGST Act can be invoked only when the provisions of section 73 are invoked. 3. The provisions of section 73 of the CGST Act are generally not invoked in case of delayed filing of the return in FORM GSTR-3B because tax along with applicable interest has already been paid but after the due date for payment of such tax. It is accordingly clarified that penalty under the provisions of section 73(11) of the CGST Act is not payable in such cases. It is further clarified that since the tax has been paid late in contravention of the provisions of the CGST Act, a general penalty under section 125 of the CGST Act may be imposed after following the due process of law. vide(Circular No. 76/50/2018 dt.31-12-2018) Note 2: For the same reasons given in section 73 and 74, there is also penal provision under section 122(2) of the Act. But his penal proviso has no effect because, where penalty is imposed under sec.73 or 74 of the Act, no penalty for the same act or omission shall be imposed on the same person under any other provisions of the Act vide section 75(13) and also vide section 127 of the Act. Note: 3 The orders passed under section 73 and 74 is subjected for appeal under section 107 of the Act as inferred from section 75(3) wherein it is stipulated that where any order is required to be issued in pursuance of the direction of the Appellate Authority or Appellate Tribunal or a court, such order shall be issued within two years from the date of communication of the said direction. Note 4: As per section 75(10) of the Act, the adjudicating proceedings shall be deemed to be concluded , if the order is not issued within three years as provided for in sub-section 73 or within 5 years as provided for in sub-section 10 of section 74 of the Act. In such circumstances, it is not known whether that deemed order if it is against the taxpayer, is appealable or not ? Because section 107 stipulates time limit of three months from the date on which the said decision or order is communicated and there is no specific date of communication of the deemed orders.
By: Gnanamuthu samidurai - June 5, 2020
Discussions to this article
Nice Article. Thank you
Thank you
PLZ ADVISE. In case of wrongful availment of ITC and communication is received from the department. Whether such ITC can be paid through reversal of ITC or has to be paid through cash ledger only.
Dear Balakrishnan I am sorry for the delay in replying to your question raised. 2)You have raised a question about the mode of payment of input tax credit reversed. and communicated by the department. 3)I would like to reply you, to kindly refer section 49(4) read with rule 86(2) according to which "the electronic credit ledger shall be debited to the extent of discharge of any liablity in accordance with the provisions of Section 49. Thanking you with regards Samidurai
Sorry Mr.Balkshan I wrongly mentioned your name as Balakrishnan. Very sorry with regards samidurai
Hello Sir, I one of my customer is composition dealer and he violeted the composition condition that he made inter state supply in the month of October, 2019 and again he did the same mistake in May, 2020. Where as he is ineligibile for composition scheme on October, 2019 onwards he has not intimated me about this, while filing of annual return i have checked that he made mistake of inter state supply. But where has i have filed quarterly returns upto December,2020. My question is that if i opt out from composition scheme from October, 2019 onwards now means from 24th february, 2021. for the which can i file regularly return from October, 2019 to till now and can i claim input tax on purchase of goods for Financial year 2019-2020 and 2020-2021. So it is very urgent for me kindly clarify me about the confusion regarding this
Dear Sri Ravinder Please find my opinion on your doubts raised In your client’s case the violation of the provisions under the compounding provisions occurred as early as in October 2019.The intimation for withdrawal from the scheme ought to have been made in form GST CMP 04 within 7 days of the occurrence of such event. 2)However you can open the portal and file your intimation in CMP-04 by selecting “voluntary “withdrawal , by selecting the reason “interstate supply of goods” 3)Please take note that according to rule 6(2), your client have to pay tax under section 9(1) from the day he ceases to satisfy the conditions mentioned in Section 10. 4)Subsequently your client has to forward a statement in FORM GST ITC-01 within 30 days of such withdrawal and then only he will be eligible to claim ITC available to normal tax payer 5)Please take note that whether you are filing the CMP-04 withdrawal request in 02/2021 or not, the benefit of composition availed by your client already came to an end with retrospective effect as mentioned in point no.(3) above 6) Filing of withdrawal in CMP-04 and the statement in ITC-01 are the procedures to be adopted only to take benefit of the ITC on the goods held in stock at the time of filing ITC-01 towards the output tax payable under section 9(1) Thank u With regards Samidurai .
in my case the assessee has while filing the annual return has deposited the tax alongwith interest for the input claimed for the invoices not appeared in GSTR 2A for fin year 2018-19. The proper officer now issued DRC-01A and asked to submit penalty on the ground that input tax were not reversed within 30 days of due date -- u/s 73(11) and US 73(9). No other notice issued or oppurtunity of heard given - wether the inspector is correct or should he first follow the process of SEC 73(1) to 73(8) - which says no penalty should be imposed if the assessee pays the tax and interest before SCN or within 30 days of SCN.
Dear Sri Nitesh Kumar 1) I have seen the points raised. I am of the opinion that in your client’s case they have voluntarily paid the wrong input tax availed by them while filing the annual return.The tax so deposited can be treated as self assessed tax. 2)According to sub section (11)of section 73 ,notwithstanding anything contained in sub-section (6) or sub-section (8), penalty under sub-section (9) shall be payable where any amount of self-assessed tax or any amount collected as tax has not been paid within a period of thirty days from the due date of payment of such tax. 3)The proper officer found to have invoked this provision only in your client’s case. 4)However,the above provision of sub section(11) of section 73 cannot be invoked without issue of any notice or opportunity of being heard. The action of the proper officer in your client’s case is against the principles of natural justice. 5) However, I request you to go through note no.1 in my article which will further clarify the position. Thanking you With regards Samidurai
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