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Section 73 applies when tax is short-paid or unpaid, a refund is erroneous, or input tax credit (ITC) is wrongly availed or utilised for reasons other than fraud, wilful misstatement or suppression of facts to evade tax. Section 74 applies when the demand is alleged to arise because of one of those fraud-related grounds. That choice affects the limitation period, notice timing and reduced-penalty payment options. The allegation in a show-cause notice is not, by itself, proof that the statutory ground has been established.
What sections 73 and 74 cover
Both provisions are demand-and-recovery routes under the Central Goods and Services Tax (CGST) Act. They address four broad situations:
- tax that was not paid;
- tax that was paid short;
- an amount refunded in error; and
- input tax credit wrongly availed or utilised.
The dividing line is the reason alleged for the shortfall. The official CBIC GST FAQ describes section 73 as the provision for cases without fraud, suppression or misstatement, and section 74 as the provision where those grounds are invoked. You can read the FAQ on the CBIC website.
Section 74 is not an automatic upgrade for every mismatch, late return, classification error or disputed ITC claim. The notice must allege that fraud, wilful misstatement or suppression of facts to evade tax is the reason for the demand, and the adjudicating process must examine whether that allegation is actually supported.
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Section 73 vs section 74 at a glance
| Issue | Section 73 | Section 74 |
|---|---|---|
| Statutory trigger | Non-payment, short payment, erroneous refund or wrongly availed/utilised ITC for reasons other than fraud, wilful misstatement or suppression of facts to evade tax. | The same demand categories where the reason alleged is fraud, wilful misstatement or suppression of facts to evade tax. |
| Order deadline in the Act text consulted | Three years from the due date for the annual return for the relevant financial year, or three years from the date of an erroneous refund. | Five years from the due date for the annual return for the relevant financial year, or five years from the date of an erroneous refund. |
| Minimum notice lead time | Notice at least three months before the section 73(10) order deadline. | Notice at least six months before the section 74(10) order deadline. |
| Payment after notice in the consulted text | Tax and interest paid within 30 days of notice: no penalty is payable and proceedings covered by that notice are deemed concluded. | Tax, interest and a penalty equal to 25% of the tax paid within 30 days of notice: proceedings are deemed concluded. |
| Other reduced-penalty routes in the consulted text | Tax and interest can be paid before notice; the cited provision does not specify a separate pre-notice section 73 penalty. | 15% penalty before notice; 50% penalty within 30 days after communication of the order, in each case with tax and interest and subject to the statutory conditions. |
| If the fraud-related ground fails | Section 75(2) treatment applies when the matter is redetermined as a section 73 case. | The longer section 74 period cannot simply be retained if the section 74 ground is not established; section 73 limitation becomes important. |
These are the rules shown in the CBIC-hosted Act text and related official guidance. The applicable version, amendments, exclusions, court orders and the tax period must be checked before relying on a deadline or payment option. See the official CGST Act text.
When section 73 applies
Non-fraud reasons for a demand
Section 73 is the ordinary route when the department alleges a tax or ITC shortfall but does not attribute it to fraud, wilful misstatement or suppression of facts to evade tax. Examples can include a computation error, an incorrect interpretation of a rate or exemption, a reconciliation difference, or an ITC claim that the officer considers ineligible, provided the notice is not founded on one of the section 74 grounds.
The nature of the underlying mistake does not decide the section by itself. A wrong ITC claim can be pursued under section 73 or section 74 depending on the reason stated and proved. Conversely, describing a discrepancy as “suppression” does not establish suppression; the evidence and findings still matter.
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What the section 73 process covers
The officer may issue a notice proposing tax, interest and any applicable penalty. The taxpayer receives an opportunity to respond and to be heard before an order. If the notice amount is paid in accordance with the statutory early-payment route, the consequences are different from those following a contested order.
When section 74 applies
The three specified grounds
Section 74 is reserved for a demand stated to be “by reason of”:
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- fraud;
- wilful misstatement; or
- suppression of facts to evade tax.
The phrase “to evade tax” is important for suppression. A fact that was not separately volunteered is not automatically a suppressed fact for section 74 purposes. The notice and subsequent order should connect the alleged conduct to the tax shortfall, erroneous refund or wrongly availed/utilised ITC.
An allegation is not a finding
A show-cause notice can invoke section 74, but the taxpayer can challenge whether the factual and legal basis for that invocation exists. The adjudicating authority must consider the reply, documents, explanations and hearing. If the fraud-related ground is not established, section 75(2) provides the statutory mechanism for determining the tax as if the notice had been issued under section 73.
How the limitation periods work
Annual-return cases
In the Act text consulted, section 73(10) allows the order to be issued within three years from the due date for furnishing the annual return for the financial year to which the demand relates. Section 74(10) uses five years from that due date. The relevant date is therefore not simply the end of the financial year; identify the financial year, the statutory annual-return due date and any applicable change to that date.
Erroneous-refund cases
For an erroneous refund, both provisions count from the date of the refund rather than from an annual-return due date. Section 73 uses three years and section 74 uses five years in the consulted text.
Notice lead time
Section 73(2) requires the notice to be issued at least three months before the section 73(10) order deadline. Section 74(2) requires at least six months before the section 74(10) deadline. A notice issued under section 74 is not automatically timely merely because the five-year outer period has not expired; the six-month minimum must also be considered.
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Why conversion can make the shorter period decisive
CBIC Circular 185/17/2022-GST, dated 28 December 2022, explains the limitation consequence when a section 74 allegation fails. For annual-return cases, it describes the section 73 notice window as ending two years and nine months before the section 73 order deadline, because section 73 requires at least three months between notice and order. A proceeding that falls outside that section 73 window cannot be rescued simply by having been issued under section 74. The circular treats erroneous refunds by reference to the refund date. Read the official Circular 185/17/2022-GST together with the Act and the period-specific rules.
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Payment, interest and penalty options
Section 73 payment routes
Under the cited section 73 provisions, a taxpayer may pay the tax and interest before a notice and inform the officer. If the payment covers only part of the eventual shortfall, proceedings may continue for the balance.
After a section 73 notice, payment of the tax and interest within 30 days of the notice means no penalty is payable under that route, and proceedings in respect of the notice are deemed concluded. The payment must meet the statutory requirements; simply making an unrelated or incomplete payment does not create the conclusion contemplated by the Act.
Section 74 staged reductions
Section 74 provides three principal settlement points in the consulted text:
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| Timing | Payment stated in the Act text | Effect stated in the Act text |
|---|---|---|
| Before notice | Tax, interest and a penalty equal to 15% of the tax. | The matter is treated as concluded subject to the statutory conditions. |
| Within 30 days after notice | Tax, interest and a penalty equal to 25% of the tax. | Proceedings are deemed concluded subject to the statutory conditions. |
| Within 30 days after communication of the order | Tax, interest and a penalty equal to 50% of the tax. | Proceedings are deemed concluded subject to the statutory conditions. |
The percentages are statutory payment routes, not a recommendation to concede liability. Before paying, check the amount, tax period, disputed facts, interest calculation, evidence supporting the section 74 allegation and whether an appeal or another procedural step is appropriate.
What happens if a section 74 case is reduced to section 73
Section 75(2) addresses a situation in which an appellate authority, tribunal or court finds that the allegation of fraud, wilful misstatement or suppression was not established. The tax is then to be determined as if the notice had been issued under section 73.
This is more than a change in label. The section 73 limitation period and its notice lead time become material. Circular 185/17/2022-GST says that a section 74 notice cannot preserve the longer period when the section 74 ground fails and the resulting section 73 proceeding is already out of time.
For a recipient of a section 74 notice, limitation should therefore be checked at the start, not only after arguing the merits. Assemble the relevant annual-return due date or erroneous-refund date, the notice date, any order deadline, and records of stays or extensions.
How to analyse a show-cause notice
- Identify the demand category. Separate unpaid or short-paid tax, erroneous refund and wrongly availed or utilised ITC. The category determines which dates and supporting records must be checked.
- Read the stated statutory ground. Confirm whether the notice invokes section 73 or section 74 and exactly how it pleads fraud, wilful misstatement or suppression to evade tax.
- Test the factual connection. Map each allegation to invoices, returns, ledgers, e-way bills, contracts, correspondence, credit records and tax payments. Look for evidence of intent and concealment rather than treating a numerical difference as proof.
- Calculate the deadline independently. For an annual-return demand, identify the relevant financial year and annual-return due date. For an erroneous refund, use the refund date. Apply the three-year or five-year period in the governing Act text and then test the three-month or six-month notice lead time.
- Check the amount and interest. Reconcile the department’s calculation to returns, amendments, credit reversals, payments and the applicable interest period.
- Choose the procedural response. A reply may challenge the tax, the section invoked, limitation, computation, evidence or jurisdiction. If payment is being considered, compare the statutory consequences with the effect of waiving or narrowing a dispute.
- Preserve proof of filing and payment. Keep the notice, annexures, reply, hearing submissions, electronic acknowledgements, challans and correspondence together.
An actual notice should be reviewed by a qualified Indian GST professional, especially where the department alleges intent, the amount is material, or the relevant period is close to the limitation boundary.
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Illustrative examples
Example 1: classification error without an evasion allegation
A registered person applies the wrong rate to a set of invoices because of a documented classification interpretation. The notice proposes the differential tax and interest but does not allege fraud, wilful misstatement or suppression to evade tax. On those stated facts, section 73 is the relevant framework. The taxpayer must still contest the classification and amount if incorrect; section 73 does not mean the demand is automatically valid.
Example 2: concealed transactions alleged as suppression
An officer alleges that sales were deliberately omitted from the books and returns and links the omission to an intent to evade tax. That is the type of allegation that can place the demand under section 74, but the allegation must be supported by evidence and tested in adjudication. The five-year period and 15%, 25% and 50% payment routes should not be assumed to apply merely because the notice uses the word “suppression.”
Example 3: section 74 ground fails on appeal
An order under section 74 is challenged and the appellate authority finds that the evidence does not establish fraud, wilful misstatement or suppression. Section 75(2) requires tax determination as if section 73 had applied. If the section 73 notice window had already expired, Circular 185/17/2022-GST indicates that the longer section 74 period cannot be used to keep the demand alive.
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Who can adjudicate certain DGGI notices
Adjudicating authority is a separate question from whether section 73 or section 74 is substantively triggered. CBIC Circular 239/33/2024-GST, dated 4 December 2024, records that Notification No. 27/2024-Central Tax, dated 25 November 2024 and effective 1 December 2024, expanded the specified Additional or Joint Commissioners empowered with All India jurisdiction to adjudicate certain show-cause notices issued by Directorate General of Goods and Services Tax Intelligence (DGGI) officers. Read the official Circular 239/33/2024-GST for the scope and designated officers.
That empowerment concerns who may adjudicate specified notices. It does not change the underlying distinction between the section 73 and section 74 triggers.
Current-law and transition checks
The comparison above follows the CBIC-hosted Act text and official guidance identified for this topic. It should not be treated as an exhaustive rule for every tax period. In particular, the commencement and transitional operation of section 74A were not established by the materials cited here. Before deciding which provision governs a period, check the current amended CGST Act, commencement notifications, relevant circulars and any special extensions or exclusions, especially for periods beginning with financial year 2024–25.
Also verify the edition of the statute in force for the period under review. A later amendment, a court-ordered exclusion of time, a notification extending a deadline or a special recovery rule can change the result even when the basic section 73-versus-section 74 distinction remains familiar.
Practical checklist
- What exactly is being demanded: short-paid tax, unpaid tax, erroneous refund or ITC?
- Does the notice allege fraud, wilful misstatement or suppression to evade tax, and what evidence is cited?
- What is the relevant financial year and annual-return due date, or the date of the erroneous refund?
- Was the notice issued early enough to satisfy the applicable three-month or six-month lead time?
- Could section 75(2) conversion make the shorter section 73 period decisive?
- Are tax, interest and any proposed penalty calculated from the correct records and dates?
- Would an early-payment route resolve the matter, and what rights or issues would remain disputed?
- Does a current amendment or section 74A transition rule apply to the period?
- Is the notice being adjudicated by the officer with the required jurisdiction?
Bottom line
Use section 73 for the specified GST demand situations when the case is not based on fraud, wilful misstatement or suppression of facts to evade tax. Use section 74 only when that fraud-related ground is the stated and supportable reason for the demand. Section 74’s longer period and staged penalty reductions do not survive automatically if the ground fails; section 75(2) can bring the matter back to section 73 treatment, where limitation may decide the outcome. Always apply the version of the Act, notifications and procedural rules governing the specific tax period.
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