9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (9) TMI 618 - HC - GSTProvisional attachment of property - Section 83 of the GST Act, 2017 - blockage of input tax credit - whether the State Tax Officer 1, Unit 44, Vadodara could have exercised powers under Section 83 of the GST Act, 2017 for the purpose of provisional attachment of the property owned by the writ applicant? Power of Officers u/s 5 of GST Act, 2017 - Delegation of power - HELD THAT - Delegation is the act of making or commissioning a delegate. It generally means parting of powers by the person who grants the delegation and conferring of an authority to do things which otherwise that person would have to do himself. Delegation is defined in Black s Law Dictionary as the act of entrusting another with authority by the empowering another to act as an agent or representative . Section 83 makes it abundantly clear that it is the Commissioner's opinion which is relevant. The Legislature has thought fit to confer this power upon the Commissioner. Whether such power conferred upon the Commissioner by the legislature could have been delegated to the three subordinate officers referred to above by virtue of the order dated 15th January 2018 passed in exercise of power under subsection (3) of Section 5 read with clause 19 of Section 2 of the Act and the rules framed thereunder. In our opinion, the answer has to be in the negative. Although there is no specific challenge to the order dated 15th January 2015 passed by the Commissioner of State Tax delegating his power under Section 83 to the subordinate officers, yet, we are of the view that by virtue of such order, such impugned order of provisional attachment cannot be defended. In the absence of any cogent or credible material, if the subjective satisfaction is arrived at by the authority concerned for the purpose of passing an order of provisional attachment under Section 83 of the Act, then such action amounts to malice in law. Malice in its legal sense means such malice as may be assumed from the doing of a wrongful act intentionally but also without just cause or excuse or for want of reasonable or probably cause. Any use of discretionary power exercised for an unauthorized purpose amounts to malice in law. It is immaterial whether the authority acted in good faith or bad faith. It would be a big mistake on the part of the respondents to understand that the reasons to believe necessary for the purpose of carrying out inspection, search and seizure under Section 67 of the Act, 2017 would be sufficient enough for the purpose of formation of the opinion that it is necessary to provisionally attach the goods or other articles for the purpose of protecting the interest of the government revenue. In our opinion, Section 83 of the Act stands altogether on a different footing. The considerations also are quite different for the purpose of exercising the power of provisional attachment under Section 83 of the Act. Just because, some proceedings are initiated under Section 67 by itself would not be sufficient to arrive at the satisfaction that it is necessary to provisionally attach the property for the purpose of protecting the interest of the government revenue. The power has been specifically conferred upon the Commissioner to form such an opinion. It appears from the materials on record that without issue of any show cause notice, the tax liability came to be determined under Section 74 of the Act. Section 74 makes it abundantly clear that the defaulter should be called upon to show cause as to why he should not be paid the amount specified in the notice along with the interest payable thereon. There could not have been any assessment under Section 74 of the Act without giving any opportunity of hearing to the writ applicant - although the provisions of Section 281B of the Income Tax Act is pari materia to Section 83 of the State GST Act, yet one pertinent feature of Section 281B of the Income Tax Act is that it gives guidelines for making the provisional attachment. Such guidelines are missing so far as Section 83 of the State GST Act is concerned. The assessment order dated 17th June 2019 passed by the respondent No.4 Commercial Tax Officer at Vadodara demanding total amount of ₹ 1,60,79,302/- towards tax, penalty and interest is hereby quashed and set aside - Application allowed.
Issues Involved:
1. Legality of the order demanding payment of ?1,60,79,302/-. 2. Legality of the provisional attachment of stock of goods worth ?1,60,00,000/-. 3. Legality of the provisional attachment of the petitioner's bank accounts. 4. Legality of the blockage of Input Tax Credit (ITC). Detailed Analysis: 1. Legality of the Order Demanding Payment of ?1,60,79,302/-: The petitioner challenged the order dated 17th June 2019 by the Commercial Tax Officer demanding ?1,60,79,302/- under the CGST Act and GGST Act. The petitioner argued that the order was passed without affording any opportunity of hearing, violating the principles of natural justice. The court noted that the order was indeed passed without issuing any show-cause notice, rendering it illegal and arbitrary. The order was quashed, and the court clarified that the authority could proceed under Section 74 of the Act after issuing a proper show-cause notice and providing a hearing. 2. Legality of the Provisional Attachment of Stock of Goods Worth ?1,60,00,000/-: The petitioner contested the provisional attachment of stock of goods worth ?1,60,00,000/- dated 27th November 2018. The court examined Section 83 of the GST Act, which confers the power of provisional attachment to the Commissioner. The court found that the order was passed by the State Tax Officer, not the Commissioner, making it illegal. The court emphasized that the power under Section 83 should be used sparingly and only on substantive grounds, and there must be credible material to justify the necessity of such attachment. The order was quashed. 3. Legality of the Provisional Attachment of the Petitioner's Bank Accounts: The petitioner also challenged the provisional attachment of their current and FD/RD CC accounts. The court reiterated that the power to order provisional attachment under Section 83 is vested in the Commissioner and cannot be delegated to subordinate officers. The court found that the delegation of this power by the Commissioner to the State Tax Officer was not permissible. The court also stressed that such drastic measures should be taken only when there is a reasonable apprehension that the assessee may default on the payment of the demand. The order was quashed. 4. Legality of the Blockage of Input Tax Credit (ITC): The petitioner argued that the blockage of ITC amounting to ?30,55,680/- was illegal as it was done without any order or notice. The court noted that the ITC could at most be provisionally attached but not blocked by a computer entry. The blockage was found to be illegal and was ordered to be released forthwith. Conclusion: The court concluded that the respondents had not acted in accordance with the law. The assessment order dated 17th June 2019, the provisional attachment orders dated 27th November 2018 and 20th November 2018, and the blockage of ITC dated 13th February 2019 were all quashed and set aside. The court allowed the respondents to proceed under Section 74 of the Act after issuing a proper show-cause notice and providing an opportunity for a hearing.
|
