Page 38 - GSTL_23rd July 2020_Vol 38_Part 4

J96 GST LAW TIMES [ Vol. 38

DECODING SECTION 73 OF CGST ACT,
2017
By
CA Keshav R. Garg, B.Com., FCA, CS, ISA (ICAI),
LL.B.
ADVOCATE

The article attempts to decipher the mysteries be-
hind Section 73 with a pragmatic approach.
Who has the power to enforce Section 73 on the taxpayer?
Powers to issue notice/statement under Section 73 has been given to the
proper officer as defined by Section 2(91) of the CGST Act, 2017. Proper Officer is
one who is vested with the jurisdiction over the person. This would mean that
not all officers vested the powers to verify the documents during transportation
of goods have authority to issue notice under this section.
Whether Section 73 is applicable only to registered person or any person?
Section 73 is applicable to any person chargeable with tax. This would
mean that proper officer can serve notice to any person who has not paid or short
paid the tax or wrongly availed/utilised ITC or refund erroneously claimed in
cases other than fraud or wilful misstatement or suppression of facts to evade
tax. It is not necessary that the person should be registered under the Act. Where
a person is unregistered, either or both Centre and State GST Authorities may
serve notice on the person. But in case of registered person, it is only the jurisdic-
tional officer who has the right to serve under Section 73.
Whether difference of opinion would call for invoking Section 73?
In case of difference of opinion or merely because the officer holds a dif-
ferent view than that of the person, notice under Section 73 cannot be served. It is
only where the short payment/wrong availment of ITC/erroneous refund is es-
tablished beyond ambiguity that proceedings under this section can be initiated.
In case of difference of opinion, the officer may opt for the assessment proceed-
ings under Chapter 12 of the Act.
Can Section 73 be invoked in isolation to be later clubbed with assessment pro-
ceedings?
Section 73 can be invoked in isolation. There is no requirement of club-
bing Section 73 with any other provisions related to the assessment. Though de-
partment may initiate both assessment and proceeding under Section 73 simul-
taneously. A standalone notice may also be served under Section 73 where the
proper officer has matter on record to substantiate the short payment by the
person.
What is the time-limit for issuance of Show Cause Notice (SCN) under Section 73
and issuance of order thereof?
SCN under Section 73 shall be issued three months prior to the end of
three years from the due date for furnishing of annual return for the financial
year to which such tax payment relates. Therefore, in respect of FY 2017-18
whose annual return due date fall on 5th February, 2020, a notice under Section
GST LAW TIMES  23rd July 2020  38