Change of Charging Section from 74 to 73 of CGST Act.

[KALLESHAMURTHY MURTHY K.N.]

Dear Sirs,

Some cases were taken up under section 74, and the Show Cause Notices were issued accordingly. After verification of replies to SCN, AAs now realise that the case is fit to pass under Sec. 73.

Could they be passed order u/s 73 when SCN were issued u/s 74 or do they need to issue revised notices u/s 73?

[KASTURI SETHI]

Dear Sir,

In my view 'YES'. The extended period invoked in the SCN automatically includes/covers normal period also. There is no need to issue separate SCN or revised SCN. Such decision is in the interest of principles of natural justice.

 

[Sadanand Bulbule]

Rightly analysed Sir.

[Ganeshan Kalyani]

Good to know that you have succeeded in satisfying the PO that your case do not fall u/s 74. Practically, it is a difficult task to prove the absence of tax evasion intent. Kudos to you!

[KALLESHAMURTHY MURTHY K.N.]

Dear Sirs,

Thanks to all.

[VENU K]

Sec 75(2) provides for downgrading SCN to 73 and making assessment in cases where Appellate Authority,Tribunal or Court concludes charges of FWS were not established. So in my opinion the proper officer has no power to downgrade a Sec 74 SCN on his own and then make an assessment. He has to drop the SCN with a speaking order and then drop the SCN and reissue the SCN under Sec 73 if time permits.

Even such a course of action would expose the PO to charges of inadequate investigation etc in my opinion.

AI Summary

Change of charging section permits assessment under Section 73 despite SCN under Section 74, legal opinions conflict. The issue is whether an assessment can be made under Section 73 when the Show Cause Notice was issued under Section 74. One position: the extended period invoked under Section 74 covers the normal period, so no revised notice is required and assessment under Section 73 may proceed. Opposing position: downgrading charges should follow adjudicatory findings; the officer cannot unilaterally downgrade but must drop the original SCN with a speaking order and, if time permits, reissue a Section 73 notice, to avoid allegations of inadequate investigation.