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GST – Assessment, Short Payment of Tax, Suppression of Facts or not, Section 73 vs Section 74 of the CGST Act, 2017 – Petitioner had executed Work Contracts for the PWD and disclosed the transactions with PWD to both the Income Tax Department and the GST authorities. However, petitioner claims that he did not receive the differential amount payable towards GST from the PWD, resulting in delayed GST payment - Proceedings were initiated under Section 74 of the CGST Act and an adjudication order was passed treating the case as involving fraud or wilful misstatement - Whether the adjudication order passed under Section 74 of the CGST Act can be treated as an order under Section 73 of the Act, given that the petitioner had disclosed his transactions with PWD to the authorities and there was no suppression of facts, fraud, or wilful misstatement – HELD - The fundamental distinction between the provisions of Section 73 and Section 74 is that the Section 73 deals with determination of tax not paid or short paid for reasons other than suppression of facts, fraud, or wilful misstatement, while Section 74 is specifically for cases involving fraud, wilful misstatement, or suppression of facts - The petitioner had transparently disclosed his transactions with the PWD to both the Income Tax Department and the GST authorities, thereby negating any element of concealment or suppression. While there was admittedly a short payment of GST by the petitioner, this was due to non-receipt of differential amounts from PWD rather than any fraudulent intent – The authorities' position that it was the petitioner's responsibility to recover dues from PWD and that this could not justify non-payment of GST is valid but the crucial factor is the absence of suppression of facts. Thus, while there was short payment of GST, there was no suppression of facts, and therefore the case fell under Section 73 rather than Section 74 of the Act - The adjudication order is directed to be treated as an order passed under Section 73 of the CGST Act instead of Section 74 as the case involved short payment of tax without any element of suppression of facts, fraud, or wilful misstatement - The writ petition was allowed
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