Demand (S.73-74 CGST Act) is the process by which tax authorities determine and recover unpaid or short-paid tax. Recovery (S.78-79) is the enforcement mechanism for collecting confirmed demands. The Act distinguishes between non-fraud cases (S.73, 3-year limitation) and fraud cases (S.74, 5-year limitation), with progressively harsher consequences for the latter.
Legal Framework
| Provision | Content |
|---|---|
| S.73 | Determination of tax not paid/short paid/erroneously refunded (without fraud) |
| S.74 | Determination of tax where fraud/wilful misstatement/suppression (with fraud) |
| S.75 | General provisions relating to determination |
| S.76 | Tax collected but not deposited with government |
| S.77 | Tax wrongly collected (inter-state/intra-state error) |
| S.78 | Initiation of recovery proceedings |
| S.79 | Recovery of tax (modes of recovery) |
| S.80 | Payment in instalments |
| S.84 | Continuation of recovery proceedings |
S.73 vs S.74: Core Distinction
| Element | S.73 (Non-fraud) | S.74 (Fraud/Suppression) |
|---|---|---|
| Ground | Tax not paid, short paid, erroneously refunded, ITC wrongly availed | Same, but due to fraud, wilful misstatement, or suppression of facts |
| Time limit for SCN | At least 3 months before order deadline | At least 6 months before order deadline |
| Time limit for order | 3 years from due date of annual return | 5 years from due date of annual return |
| Penalty | No penalty if tax + interest paid within 30 days of SCN | 100% of tax (equivalent penalty) |
| Voluntary payment (before SCN) | Tax + interest: no penalty, no SCN issued | Tax + interest + 15% penalty: no SCN issued |
| Payment after SCN (within 30 days) | Tax + interest: no penalty | Tax + interest + 25% penalty |
Why: The dual-track system incentivises voluntary compliance. A taxpayer who made a genuine error can correct it without penalty (S.73). One who suppressed facts faces heavier consequences (S.74), but still gets reduced penalty for early payment.
Worked Example: S.73 vs S.74 in Action
Scenario A (Genuine Error - S.73): M/s Goodwill forgot to include Rs.5 lakh of taxable supplies in GSTR-3B for March 2024. No intent to evade. GST rate: 18%. Tax short-paid = Rs.90,000.
- Department issues SCN under S.73 (non-fraud, 3-year limit)
- If Goodwill pays BEFORE SCN: Rs.90,000 tax + interest (18% p.a.) = no penalty, no SCN issued. Case closed.
- If Goodwill pays within 30 days of SCN: Rs.90,000 + interest = no penalty. Proceedings deemed concluded.
- If Goodwill contests and loses: Rs.90,000 tax + interest + penalty (10% of tax = Rs.9,000, minimum Rs.10,000).
Scenario B (Fraud/Suppression - S.74): M/s Shadowtrade issued invoices without actual supply of goods, enabling fake ITC claims of Rs.15 lakh.
- Department issues SCN under S.74 (fraud, 5-year limit)
- If Shadowtrade pays BEFORE SCN: Rs.15 lakh tax + interest + 15% penalty (Rs.2,25,000) = no SCN issued.
- If Shadowtrade pays within 30 days of SCN: Rs.15 lakh + interest + 25% penalty (Rs.3,75,000).
- If Shadowtrade contests and loses: Rs.15 lakh + interest + 100% penalty (Rs.15 lakh). Total: Rs.30 lakh + interest.
- Additionally: Prosecution under S.132 possible (Rs.15 lakh > Rs.5 crore? No. Rs.15L is in Rs.1-2 crore bracket → up to 1 year imprisonment).
Exam takeaway: The Act rewards early voluntary compliance. At every stage, paying earlier = less penalty. The worst outcome is contesting a fraud case and losing (100% penalty + prosecution).
Procedure for Demand
| Stage | S.73 (Non-fraud) | S.74 (Fraud) |
|---|---|---|
| 1. Voluntary payment (pre-SCN) | Tax + interest → proceedings deemed concluded | Tax + interest + 15% → deemed concluded |
| 2. Show Cause Notice (SCN) | Issued by proper officer | Issued by proper officer |
| 3. Response | Assessee files reply within 30 days | Assessee files reply within 30 days |
| 4. Hearing | Personal hearing before adjudication | Personal hearing before adjudication |
| 5. Adjudication order | Determining tax, interest, penalty | Determining tax, interest, penalty (100%) |
| 6. Payment after order | Within 3 months | Within 3 months |
| 7. Recovery | If not paid, recovery proceedings u/s 79 | Same |
Modes of Recovery (S.79)
| Mode | Sub-section | Detail |
|---|---|---|
| (a) | S.79(1)(a) | Deduction from any money owed to defaulter by any government authority |
| (b) | S.79(1)(b) | Recovery by detaining/selling goods belonging to defaulter |
| (c) | S.79(1)(c) | Recovery from third person (debtor of the defaulter) |
| (d) | S.79(1)(d) | Distrain movable/immovable property and sell for recovery |
| (e) | S.79(1)(e) | Arrest and detention of defaulter (if amount > Rs.1 crore for CGST) |
| (f) | S.79(1)(f) | Recovery through Collector/District Magistrate as arrears of land revenue |
Payment in Instalments (S.80)
| Element | Detail |
|---|---|
| Who can grant | Commissioner (on application) |
| Condition | Assessee must show inability to pay in lump sum |
| Maximum period | Not exceeding 24 monthly instalments |
| Interest | Payable on outstanding amount during instalment period |
| Default | If any instalment defaulted, full balance becomes due immediately |
Recall Check
- What is the time limit for issuing an order under S.73?
- What is the penalty for fraud cases under S.74?
- What are the modes of recovery available under S.79?
Key Cases
Bhiben Patel v. State of Gujarat (2022) Bhiben Patel v State of Gujarat 2022
Issue: Whether recovery proceedings under S.79 can be initiated without a prior valid demand order (adjudication order).
Rule: S.78 requires that recovery can only commence after the order creating the demand becomes final (no appeal period remaining or appeal dismissed).
Held: Recovery under S.79 cannot be initiated without a prior adjudication order under S.73/74 that has attained finality. The proper officer must first issue SCN, pass order, and wait for 3 months (appeal period) before initiating recovery. Premature recovery is illegal.
Tvl. Vardhan v State Tax Officer (2022) Tvl Vardhan v State Tax Officer 2022
Citation: 2022 SCC OnLine Madras 15452
Rule: Procedural defects in GST show-cause notices (SCN) vitiate the proceedings; principles of natural justice must be complied with.
Distinctions
| Feature | S.73 (Non-fraud) | S.74 (Fraud) |
|---|---|---|
| Intent | No fraudulent intent required | Fraud, wilful misstatement, or suppression |
| Time limit (order) | 3 years from annual return due date | 5 years from annual return due date |
| Penalty on adjudication | 10% of tax (minimum Rs.10,000) | 100% of tax |
| Voluntary compliance benefit | Tax + interest = no penalty | Tax + interest + 15% = no SCN |
| Post-SCN compliance | Tax + interest within 30 days = no penalty | Tax + interest + 25% within 30 days |
| Burden of proof | On department (to show non-payment) | On department (to establish fraud/suppression) |
| Nature of proceedings | Civil | Quasi-criminal (fraud element) |
Flashcards
What is the time limit for demand under S.73 (non-fraud)?
Order must be passed within 3 years from the due date of the annual return for the relevant financial year.
What is the penalty under S.74 (fraud)?
100% of the tax amount (equivalent penalty).
How can a taxpayer avoid penalty under S.73?
By paying tax + interest within 30 days of issuance of SCN, no penalty is levied and proceedings are deemed concluded.
Can recovery proceedings be started without an adjudication order?
No. Per Bhiben Patel, recovery under S.79 requires a prior valid demand order that has attained finality.
What are the modes of recovery under S.79?
Deduction from government dues, sale of goods, recovery from third parties, distress and sale of property, arrest, or recovery as land revenue through Collector.
What is the voluntary payment benefit under S.74 (fraud)?
Payment of tax + interest + 15% penalty before SCN issuance: no further proceedings.
Exam Scenario
The GST department issues an order under S.74 against M/s Zenith for Rs.10 lakh tax + Rs.10 lakh penalty (fraud case). The order is passed on 1 March 2026. On 5 March 2026, without waiting for appeal period, the department attaches Zenith's bank account under S.79. Advise Zenith.
Approach: Under S.78, recovery can only be initiated after 3 months from the date of the order (appeal period under S.107 is 3 months). The order was on 1 March; the appeal period expires 31 May 2026. The department cannot attach the bank account on 5 March as this is premature. Per Bhiben Patel v. State of Gujarat, recovery without the order attaining finality is illegal. Zenith should file an appeal under S.107 (within 3 months) and also challenge the premature attachment through writ petition. The attachment must be released.