2026-VIL-184-GSTAT-TVP
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SGST Tribunal

GST - Section 73 of CGST Act, 2017 - Order confirming demand on a ground not alleged in the show cause notice and without answering the contentions of the taxpayer - SCN alleged short payment of IGST on the basis of a comparison of GSTR-1 and GSTR-3B, and stated that no amendment was made in the details furnished within the statutory deadline - Appellant contended that IGST was paid by mistake under CGST/SGST and the excess remittances were available under those heads - Adjudicating Authority confirmed the demand by invoking Section 16(2)(a) of the SGST/CGST Act, stating that there would be revenue loss to the exchequer - Whether the order can be sustained when the demand is confirmed on a ground which was not alleged in the show cause notice - HELD - There is no reference to Section 16(2)(a) anywhere in the show cause notice. While the show cause notice was issued on the ground of short payment of tax on account of non-filing of a rectification, the order confirmed the demand under Section 16(2)(a), which is on an entirely different footing and was not alleged anywhere in the show cause notice. The order also did not analyse or answer the contentions raised by the Appellant - For this reason alone the order of the Adjudicating Authority is liable to be set aside in its entirety – The appeal is allowed - GST - Payment of tax under CGST/SGST head instead of IGST - Short payment of tax under Section 73 of KGST Act / CGST Act - Sections 77 of CGST Act and 19 of IGST Act - Appellant was issued a SCN for short payment of IGST based on the comparison of GSTR-1 and GSTR-3B, and the demand was confirmed - Appellant contended that the shortfall was only due to a clerical mistake at the time of submitting GSTR-3B as IGST payments were made under CGST/SGST, and that there was no non-payment of tax in substance - Whether payment of tax under the head CGST/SGST instead of IGST amounts to non-payment/short payment of tax actionable under Section 73 - HELD - The jurisdictional High Court has approved the principles that tax paid wrongly under CGST and SGST should rightly be adjusted, that the electronic credit ledger is a pool of funds for IGST, CGST and SGST, and that proceedings under Section 73 are attracted only where tax has not been paid or short paid or erroneously refunded. The law as laid down by the jurisdictional High Court is applicable and the Tribunal is duty bound to follow it - The excess credit available in the CGST/SGST account, arising out of a clerical mistake of paying in the CGST/SGST account instead of the IGST account, is eligible to be set off against the shortfall in IGST due. The contention of Revenue that the excess under CGST and SGST together is lower than the IGST shortfall was not disputed by the Appellant despite ample opportunities, and any amount still due after set off is liable to be recovered along with interest as per applicable legal provisions - Payment of tax under the head CGST/SGST instead of IGST does not amount to non-payment/short payment of tax and no action lies under Section 73. The order in appeal is set aside and the appeal is allowed with the excess credit to be set off against the IGST shortfall through the electronic credit ledger, and any balance amount recovered in cash with interest – The appeal is allowed
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