HC Rejects Plea to Convert Section 74 Order to Section 73
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- Last Updated on 12 March, 2026
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Case Details: R B Pandey and Sons vs. Assistant Commissioner, Central Cgst and Central Excise, Division Ix (Ankleshwar) - [2026] 184 taxmann.com 140 (Gujarat)
Judiciary and Counsel Details
- A.S. Supehia & Pranav Trivedi, JJ.
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Hardik V Vora for the Petitioner.
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CB Gupta for the Respondent.
Facts of the Case
Proceedings were initiated against the petitioner under section 74 of the CGST Act and the Gujarat GST Act on the allegation of wrongful availment and utilisation of input tax credit (ITC). The adjudicating authority passed an order in the original recording that the petitioner had failed to produce documents prescribed under Rule 36, including tax invoices, debit notes, bills of entry and input service distributor invoices in support of the ITC claimed. The authority further concluded that the petitioner had availed and utilized ineligible ITC without receipt of goods or services. Aggrieved by the order, the petitioner filed a writ petition seeking a direction to treat the order passed under section 74 as one under section 73 so as to claim the benefit available in cases not involving fraud. The matter was accordingly placed before the Gujarat High Court.
High Court Held
The Gujarat High Court held that conversion of an order passed under section 74 to one under section 73 could not be granted in the absence of documentary evidence substantiating the claim of input tax credit. The Court observed that the adjudicating authority had recorded categorical findings regarding fraudulent availment and utilisation of ineligible input tax credit without receipt of goods or services. It was held that in such circumstances the authority had rightly proceeded under section 74 of the CGST Act and there was no justification to reclassify the proceedings as falling under section 73. The Court further noted that the petitioner had failed to place any material warranting interference with the findings recorded in the adjudication order. Accordingly, the prayer seeking conversion of the proceedings from section 74 to section 73 was rejected.
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