Recharacterisation of assessment requires documentary proof negating fraud; absence of records led to refusal to convert the order.

Whether an order issued under Section 74 CGST can be recharacterised as an order under Section 73 turned on the presence of documentary evidence negating fraud, misrepresentation or suppression; statutory provisions on demand, input tax credit eligibility and procedural rules were applied to assess admissibility of records. The authority found absence of prescribed supporting documents and specific findings of fraudulent and deliberate availment of ineligible input tax credit, and therefore the request to convert the Section 74 order to a Section 73 order (to enable waiver benefits) was refused for lack of documentary proof and on the basis of those findings.

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Issues: (i) Whether the order-in-original passed under Section 74 of the Central Goods and Services Tax Act, 2017, can be converted into an order under Section 73 of the Central Goods and Services Tax Act, 2017, thereby enabling the petitioner to avail benefits under Section 128A of the CGST Act.

Analysis: The proceeding required examination of whether documentary evidence existed to show that the assessment under Section 74 involved no fraud, misrepresentation, or suppression of facts and therefore could be recharacterised as an order under Section 73. The statutory framework relevant to this issue includes Sections 73 and 74 of the Central Goods and Services Tax Act, 2017 governing demand determinations, Section 128A providing waiver benefits, Section 75(2) and the first proviso concerning related procedural provisions, Sections 16, 41(1) and 42(5) and Rule 36 and Rule 71(4) of the Central Goods and Services Tax Rules, 2017 concerning eligibility and documentation for input tax credit. The adjudicating authority recorded absence of prescribed supporting documents (such as tax invoices under Section 31(3)(f) and records like GSTR-3B/GSTR-2A) and reached specific findings of fraudulent availment and deliberate utilization of ineligible input tax credit. A prior order under Section 73 for a different year was distinguishable on the ground that documentary evidence had been produced in that year; no such documents were produced in the present matter despite an opportunity to do so.

Conclusion: The petitioner's request for conversion of the order under Section 74 to an order under Section 73 is rejected for lack of documentary evidence and in view of the adjudicating authority's specific findings of fraud and ineligible availment of input tax credit.

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