Section 73 adjudication can proceed without audit, but duplicate GSTR-1 reporting cannot create additional tax liability.
Section 73 permits direct adjudication of unpaid or short-paid tax on credible material without prior scrutiny under section 61 or audit under section 65; Audit-wing designation does not restrict an officer assigned proper-officer functions. A GSTR-1 and GSTR-3B mismatch is rebuttable evidence, not proof of a separate taxable supply. Where reconciled GSTR-7 records and tax-payment patterns establish that a GSTR-1 entry duplicates an already-taxed supply, no additional tax liability arises. A demand cannot rely on an unnotified suspicion, as section 75(7) confines adjudication to notice grounds. Consequential interest and penalty fail where the underlying tax liability is not established.
Issues: (i) Whether the Commercial Tax Officer's para-wise remarks could be treated as the Revenue's stand; (ii) Whether natural justice was observed in the proceedings; (iii) Whether proceedings under section 73 required prior scrutiny under section 61 or audit under section 65, and whether section 65(7) restricted an Audit-wing officer from acting without an audit; (iv) Whether the excess tax in GSTR-1 over GSTR-3B represented a duplicate reporting of one supply and whether the demand was sustainable; (v) Whether the alternative pleas on cum-tax valuation, time and place of supply, and recovery under section 75(12) warranted a different result; and (vi) Whether interest and penalty survived.
Issue (i): Whether the Commercial Tax Officer's para-wise remarks could be treated as the Revenue's stand.
Analysis: The Commercial Tax Officer was a party to the appeal and could respond on behalf of the Revenue. The subsequent written submissions for all respondents removed any objection as to representation. Under the doctrine of merger, the Revenue could support the confirmed demand on the reasons contained in either the original or appellate decision.
Conclusion: The para-wise remarks were admissible as the Revenue's stand. In favour of the Revenue.
Issue (ii): Whether natural justice was observed in the proceedings.
Analysis: The appellant received a pre-notice intimation, a show cause notice, and four opportunities of hearing, besides a hearing in the first appeal. Section 160(2) concerning service of notices did not govern the substantive grievance. The separate complaint that the explanation was rejected on an unnotified ground was considered with the merits.
Conclusion: Adequate opportunity of hearing was afforded. In favour of the Revenue.
Issue (iii): Whether proceedings under section 73 required prior scrutiny under section 61 or audit under section 65, and whether section 65(7) restricted an Audit-wing officer from acting without an audit.
Analysis: Sections 61 and 65 are verification mechanisms: scrutiny ends in communication of discrepancies and audit ends in findings. Section 73 is a self-contained adjudicatory mechanism for determination of unpaid or short-paid tax. Its jurisdictional fact is material from which short payment appears to the proper officer; a prior ASMT-10 scrutiny or ADT-02 audit is not a statutory precondition. The DRC-01A identified the return mismatch and afforded an opportunity to explain it, satisfying the procedural purpose of prior disclosure. Section 65(7) is enabling where an audit detects tax short paid; it neither creates nor limits the independent section 73 power. The authority of an officer depends on assignment of the function of proper officer under section 2(91), not on the officer's Audit-wing designation.
Conclusion: Direct proceedings under section 73 were within jurisdiction, and the assigned officer was competent to issue the notice and adjudicate without a preceding audit. In favour of the Revenue.
Issue (iv): Whether the excess tax in GSTR-1 over GSTR-3B represented a duplicate reporting of one supply and whether the demand was sustainable.
Analysis: Tax under section 9 is chargeable on an actual supply; a return reports a supply but does not create one. The GSTR-1 declaration was a rebuttable admission and gave the Revenue an initial basis to issue notice. The evidential burden then shifted to the appellant to explain the mismatch, while the ultimate burden of proving taxability remained with the Revenue.
Analysis: The explanation that the taxable value of Rs. 18.59 lakh was reported twice was supported by the deductors' GSTR-7 returns and the pattern of tax paid through GSTR-3B. The December 2019 GSTR-1 entry matched the tax payment, while the September 2019 entry carried the identical tax figure without a separate matching payment. The GSTR-7 turnover, already accepted for the other issue, reconciled with the turnover taxed once and did not reveal any second supply. On a preponderance of probabilities, the disputed entry was a duplicate reporting of an already-taxed supply.
Analysis: The original authority rejected the explanation on a possible double input-tax-credit claim by recipients, a ground absent from the show cause notice and unrelated to whether a second supply occurred. The first appellate authority treated the unamended return as conclusive without examining the reconciliation, deductors' returns, and other supporting records. Section 75(7) confines a demand to the grounds in the notice, and reasoned adjudication required verification of the specific explanation rather than reliance on suspicion. Further verification was unnecessary because the Revenue's own records resolved the narrow factual question.
Conclusion: The disputed GSTR-1 entry was a duplicate report of an already-taxed supply; no additional taxable supply or tax liability was established, and further verification was unwarranted. In favour of the assessee.
Issue (v): Whether the alternative pleas on cum-tax valuation, time and place of supply, and recovery under section 75(12) warranted a different result.
Analysis: Cum-tax valuation under rule 35 could arise only after establishing a taxable supply, which was not established for the disputed entry. Time and place of supply were not matters raised by the notice. Section 75(12) provides a summary recovery route for self-assessed tax but does not prohibit adjudication under section 73 where liability is disputed.
Conclusion: The alternative pleas furnished no additional basis for relief. Against the assessee.
Issue (vi): Whether interest and penalty survived.
Analysis: Interest under section 50 and penalty under section 73(9) depend on tax that is lawfully due and unpaid. The disputed tax liability having failed, its consequential interest and penalty lacked a surviving basis.
Conclusion: The interest and penalty attributable to the disputed tax liability do not survive. In favour of the assessee.
Final Conclusion: Section 73 permits direct adjudication on credible material without prior scrutiny or audit, but a GSTR-1 and GSTR-3B mismatch remains rebuttable evidence. Where reliable records establish that an entry is a duplicate report rather than an additional supply, a demand cannot rest on the return mismatch or on an unnotified and unverified suspicion.
Ratio Decidendi: Section 73 may be invoked independently of sections 61 and 65, but a GSTR-1 and GSTR-3B mismatch cannot sustain tax liability once credible evidence establishes that it reflects duplicate reporting and not a separate taxable supply.