General Provisions Relating To Determination of Tax [Section 75] - GST Ready Reckoner - GST

GENERAL PROVISIONS RELATING TO DETERMINATION OF TAX [Section 75] Period of stay shall be excluded from for computing Period of issuance of order [ Section75(1) ] If an order of court or Appellate Tribunal stays the service of notice or issuance of order then, the period of such stay will get excluded from the period of issuance of order under section 73(2) and (10) under section 74(2) and (10) under section 74A(2) and (7) (w.e.f. 01.11.2024 vide Notification No. 17/2024 dated 27.09.2024). [ Inserted vide Finance (No. 2) Act, 2024 ] Modification of Penalty When Fraud Charges Are Not Established [ Section 75(2) ] Where any Appellate Authority or Appellate Tribunal or court concludes that the notice issued under section 74(1) is not sustainable for the reason that the charges of fraud or any wilful-misstatement or suppression of facts to evade tax has not been established against the person to whom the notice was issued, the proper officer shall determine the tax payable by such person, deeming as if the notice were issued u/s 73(1). States that When a notice has been issued considering the case to be for fraud or for willful representation or for suppression of facts, and whereas the charges of fraud, suppression and misstatement of facts were not sustainable or not established by an order of Appellate Authority or Appellate Tribunal, then in such case the officer shall determine the tax as if the notice is issued for the normal period of 3 year. Clarification in cases where the appellate authority or appellate tribunal or court concludes that the notice issued by proper officer under section 74(1) is not sustainable for reason that the charges of fraud or any willful-misstatement or suppression of facts to evade tax have not been established against the person to whom such notice was issued (hereinafter called as noticee ), then the proper officer shall determine the tax payable by the noticee, deeming as if the notice was issued under section 73(1) . [ Circular No. 185/17/2022-GST, dated 27.12.2022 ] Modification of Penalty When Fraud Charges Are Not Established [ Section 75(2A) (w.e.f. 01.11.2024 vide Notification No. 17/2024 dated 27.09.2024) ] Where any Appellate Authority or Appellate Tribunal or court concludes that the penalty of section 74A(5)(ii) is not sustainable for the reason that the charges of fraud or any wilful-misstatement or suppression of facts to evade tax has not been established against the person to whom the notice was issued, the penalty shall be payable by such person, under section 74A(5)(i). [ Inserted vide Finance (No.2 ) Act, 2024 ] Period of order on the direction of court issued [ Section 75(3) ] Where any order is required to be issued in pursuance of the direction of the Appellate Authority or Appellate Tribunal or a court, such order shall be issued within two years from the date of communication of the said direction. Opportunity of being heard [ section 75(4) (5) ] Opportunity of personal hearing has to be granted when requested for in writing by the person chargeable with tax or where any adverse decision is proposed to be taken against the person. Personal hearing can be adjourned when sufficient cause is shown in writing. However, such adjournment can be granted for a maximum of 3 times during the proceedings Order should be speaking order [ Section 75(6) ] The proper officer, in his order, shall set out the relevant facts and the basis of his decision. No additional grounds to be entertained except those mentioned in notice for confirming the demand [ Section 75(7) ] Demand order should not be more than tax along with interest and penalty, amount specified in the notice and demand should not confirmed beyond the ground specified in the notice. Modification of order by appellate authority [ Section 75(8) ] In case the decision of Tribunal/ Court/ Appellate authority modifies the amount of tax, correspondingly interest and penalty shall also be modified to that extent by the proper officer. Mandatory payment of interest [ Section 75(9) ] Interest shall be payable in all cases whether specifically mentioned or not. Adjudication proceeding deemed to be concluded if demand order not issued within time period specified time under section 73 or 74 [ Section 75(10) ] If the order is not issued within the time limits as prescribed in section 73(10) or section 74(10) , i.e., 5 years in case of fraud, misstatement or suppression and 3 years in any other case, the adjudication proceedings shall be deemed to be concluded. The adjudication proceedings shall be deemed to be concluded, if the order is not issued within the period specified in section 73(10) or section 74(10) or section 74A(7). (w.e.f. 01.11.2024 vide Notification No. 17/2024 dated 27.09.2024) [ Substituted vide Finance (No. 2) Act, 2024 ] Period subject to pending decision shall be excluded, in case appeal filed by department [ Section 75(11) ] An issue on which a first appellate authority or Tribunal or High Court has given its decision which is prejudicial to the interest of the revenue and an appeal to the Appellate Tribunal or High Court or Supreme Court against such decision is pending, then the period spent between the two dates of decision shall be excluded in computing the period specified in section 73(10) or section 74(10) [or section 74A(7) ( w.e.f. 01.11.2024 vide Notification No. 17/2024 dated 27.09.2024) Inserted vide Finance (No. 2) Act, 2024 ] , for issue of order. Recovery subject to Self assessment tax Penalty under section 73 or section 74 [ or section 74A(7) ( w.e.f. 01.11.2024 vide Notification No. 17/2024 dated 27.09.2024) Inserted vide Finance (No. 2) Act, 2024 ] [ Section 75(12) ] Any amount of self-assessed tax or intent payable, whether wholly or in part in accordance with a return furnished under section 39 shall be recovered under the provisions of section 79. self-assessed tax shall include the tax payable in respect of details of outward supplies furnished under section 37, but not included in the return furnished under section 39. Guidelines for recovery proceedings under the provisions of section 79 of the CGST Act, 2017 in cases covered under explanation to section 75(12) of the CGST Act, 2017. [ See Instruction No. 01/2022-GST dated 07.01.2022 ] No penalty shall be imposed under any other provision of act [ Section 75(13) ] It is also provided that when the penalty is imposed under Section 73 or section 74 [or section 74A(7) ( w.e.f. 01.11.2024 vide Notification No. 17/2024 dated 27.09.2024) Inserted vide Finance (No. 2) Act, 2024 ] that no penalties shall be imposed under any other provisions of this Act for the same act or omission.