Section 73 claim for pre-notice tax and interest payment required fresh factual consideration by the original authority.

Where an assessee claims the benefit of Section 73 of the Finance Act, 1994 on the basis that tax and interest were paid before issue of the show cause notice, that contention must be examined on the facts before the original authority if it was not considered earlier. As the plea was raised for the first time before the Tribunal and had not been addressed by the lower authorities, the existing order could not be sustained without such consideration. The matter was therefore remanded to the original authority for fresh adjudication after hearing both sides.

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Issues: Whether the assessee's plea that the case was covered by Section 73 of the Finance Act, 1994, in view of payment of tax and interest before issue of show cause notice, required fresh consideration by the original authority.

Analysis: The plea on the applicability of Section 73 had not been examined by the authorities below, as it was raised for the first time before the Tribunal. In these circumstances, the existing order could not be sustained without giving the original authority an opportunity to consider that contention on the facts of the case.

Outcome: The impugned order was set aside and the matter was remanded to the original authority for fresh adjudication after considering the plea relating to Section 73 and after affording a reasonable opportunity of hearing to both sides.

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