SECTION 75 [2] V/s. SECTION 107[1]

[Sadanand Bulbule]

Dear experts

General provisions relating to determination of tax:

Section 75. (2) Where any Appellate Authority or Appellate Tribunal or court concludes that the notice issued under sub-section (1) of section 74 is not sustainable for the reason that the charges of fraud or any wilful-misstatement or suppression of facts to evade tax has not been established against the person to whom the notice was issued, the proper officer shall determine the tax payable by such person, deeming as if the notice were issued under sub-section (1) of section 73.

Appeals to Appellate Authority.

Section 107. (1) Any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person.

Query:

1].When the above provisions are collectively read, what emerges is, the 'notice issued' under Section 74[1] can be deemed as issued under Section 73[1], if any Appellate Authority or Appellate Tribunal or Court so concludes in its wisdom on merits of the case.

2] Whereas under Section 107[1], any decision or order passed under the Act is appealable before the Appellate Authority or Appellate Tribunal or Court. The word 'notice' is not covered under Section 107[1].

3] The legal position being so, can the First Appellate Authority is empowered to entertain an appeal contesting the validity of notice issued under Section 74[1] when it is not covered under Section 107[1]? Is the 'decision' covers the word 'notice' also?

4] Are these provisions not contrary to each other? If so, then what is right time and situation to enforce the provisions of Section 75[2] by the authorities defined therein?

Kindly enlighten.

AI Summary

Clarification on GST Act: Notices Under Sections 74(1) and 73(1), Appeal Provisions in Section 107(1), and Time Limits A discussion on a legal forum focused on the interpretation of Sections 75(2) and 107(1) of the Goods and Services Tax (GST) Act. The query raised concerns about whether a notice issued under Section 74(1) can be deemed under Section 73(1) if an appellate body finds the charges unsubstantiated. It also questioned whether the term 'notice' falls under Section 107(1), which addresses appealable decisions. The response clarified that 'notice' is impliedly covered under Section 107(1) as it becomes part of the adjudication order. The provisions are not contradictory, as Section 75(2) applies when the department fails to prove allegations. Further queries were raised about time limits under Section 73(10) and the implications of Section 75(2) regarding pre-deposit requirements.