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Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

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GST update /2026-27/0049

Commissioner of Customs (P), Lucknow v. Sh. Md. Shahbaz Siddiqui & Ors.

*GST UPDATE ON INVOCATION OF SECTION 74 AFTER SECTION 73 INTIMATION*

In today's update, we discuss the recent judgment of the Madras High Court in *Power Lead Electricals vs. The Deputy State Tax Officer-2* wherein the Court examined whether the Department can invoke Section 74 of the GST Act after initially issuing an intimation under Section 73 and whether such proceedings for FY 2017-18 were barred by limitation.

The judgment assumes significance because in large number of Cases it has been seen that whenever the demand period is barred by limited of law under section 73 then department either raise the demand under section 74 or convert the demand of Section 73 into demand under Section 74 even when the matter does not involve fraud, willful suppression or misstatement of facts as required by Section 74 of CGST Act,2017. Therefore, current case is important in the light of the fact that whether the Department can initially proceed under Section 73 and subsequently invoked Section 74 merely to overcome limitation.

The judgment also clarifies the impact of the Supreme Court's COVID limitation orders, TOLA, Section 168A of the GST Act, and the circumstances in which the Department can validly invoke the extended limitation available under Section 74.

*Brief Facts of the Case –*

The petitioner had claimed Input Tax Credit in GSTR-3B in excess of the credit reflected in GSTR-2A for FY 2017-18. During scrutiny, the Department issued an Intimation in Form GST DRC-01A dated 20.09.2023 proposing action under Section 73.

The petitioner replied that the proposed proceedings were barred by limitation under Section 73 and therefore liable to be dropped.

Thereafter, the Department issued a Show Cause Notice in Form GST DRC-01 dated 06.12.2023 under Section 74 alleging wrongful availment of ITC and subsequently passed an order dated 03.02.2025, confirming tax of ?11,84,332 along with interest and penalty.

The petitioner challenged the order before the Madras High Court.

*Core Issue Before the Court –*

Whether the Department could invoke Section 74 after initially issuing an intimation under Section 73, particularly when the taxpayer had objected that proceedings under Section 73 were barred by limitation?

Whether proceedings initiated under Section 74 for FY 2017-18 were themselves barred by limitation?

 

*Petitioner's Arguments –*

The petitioner contended that the Department had originally formed an opinion and issued demand under Section 73, as evident from the issuance of Form GST DRC-01A.

According to the petitioner, after the objection regarding limitation was raised, the department merely substituted Section 74 to overcome the limitation prescribed under Section 73.

It was further argued that there were no allegations or evidence of fraud, willful misstatement or suppression of facts, which are essential requirements for invoking Section 74. Therefore, the proceedings under Section 74 were without jurisdiction and liable to be quashed.

*Department's Arguments –*

The Revenue submitted that the proceedings were not barred by limitation because the limitation period stood extended by virtue of:

• the Supreme Court's orders extending limitation during COVID-19;

• the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act (TOLA);

• Section 168A of the GST Act and the notifications issued thereunder.

The Department further argued that the petitioner had claimed excess ITC in GSTR-3B as compared to GSTR-2A and had failed to furnish a satisfactory explanation during scrutiny. It was also contended that the petitioner's failure to respond adequately on merits justified invocation of Section 74, and the case involved suppression within the meaning of Explanation 2 to Section 74.

*Court's Observation and Decision*

The Madras High Court dismissed the writ petition and upheld the proceedings under Section 74.

(i) Proceedings were within limitation

The Court held that the limitation prescribed under Sections 73 and 74 could not be computed in isolation because the period stood extended on account of:

• the Supreme Court's suo motu COVID limitation orders;

• TOLA;

• Section 168A of the GST Act; and

• the notifications extending limitation.

Accordingly, the proceedings initiated for FY 2017-18 were not time-barred.

(ii) Invocation of Section 74 was valid

The Court referred to its common judgment delivered on the same date in the batch matters including Turbo Energy Private Limited, Fastenex Private Limited and Ispahani Estates Private Limited, wherein it had already examined the scope of Section 74.

The Court observed that the threshold for invoking the extended period under Section 74 of the GST enactments is considerably lower than under the earlier indirect tax laws. Since the returns had been scrutinized under Section 61, ASMT-10 had been issued, and excess ITC had been detected during scrutiny, the Court held that sufficient material existed to justify invocation of Section 74.

(iii) Mere issuance of DRC-01A under Section 73 does not prevent invocation of Section 74

The Court did not accept the argument that issuance of an earlier intimation under Section 73 permanently prevented the Department from invoking Section 74.

Considering the facts of the case and the findings recorded during scrutiny, the Court held that the department was competent to proceed under Section 74.

*Final Decision*

In its final decision court dismissed the writ petition.

However, the Court granted liberty to the petitioner to file a statutory appeal before the Appellate Commissioner within 30 days, subject to compliance with Section 107 of the GST Act, and directed the appellate authority to decide the appeal on merits.

 

*CA Pradeep Jain*_

*This is solely for educational purpose*

Readers can also access this from our

Linkedin account : ```www.linkedin.com/in/ca-pradeep-jain-b6a31a16```

Opinion

*Conclusion*

The present judgment undoubtedly strengthens the Department's ability to invoke Section 74 in appropriate cases by recognizing the effect of the COVID-related extension of limitation and by holding that an earlier intimation under Section 73 does not itself prohibit subsequent proceedings under Section 74. However, the decision should not be understood as laying down a blanket proposition that every proceeding initiated under Section 73 can subsequently be converted into one under Section 74.

Section 74 is an exceptional provision intended to deal with cases involving fraud, willful misstatement or suppression of facts with an intent to evade tax. Therefore, its invocation cannot be justified merely because the limitation prescribed under Section 73 has expired or because the department wishes to avail the extended period of limitation. The statutory ingredients of Section 74 must exist independently and must be specifically established on the basis of cogent material. Mere tax differences, ITC mismatches or an adverse reply by the taxpayer cannot automatically lead to the conclusion that fraud, willful misstatement or suppression exists.

The practice of initiating proceedings under Section 73 and thereafter converting them into proceedings under Section 74 solely to overcome limitation creates significant hardship for taxpayers. Such an approach prolongs litigation, exposes taxpayers to substantially higher penalties, and undermines the distinction consciously maintained by the Legislature between bona fide tax disputes under Section 73 and cases involving deliberate tax evasion under Section 74. Accordingly, department should not invoke Section 74 until and unless the essential requirement of key aspects involving fraud, willful misstatement or suppression of facts appears to exist by proper officer.

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