2021 (5) TMI 528 - HC - GST

Provisional attachment of Bank accounts of petitioner / Director of the company - availment of ITC against fake/ineligible invoices - HELD THAT - There is nothing in the statement of the petitioner, which would show, that she had anything to do with the purported illegal transaction said to have been carried out between Milkfood Ltd. i.e., the taxable person , and its suppliers. The petitioner claimed, in her voluntary statement, that she was paid ₹ 1.50 crores in the FY 2019-2020 for rendering services in her capacity as a mentor/advisor to Milkfood Ltd. Therefore, even if we assume, for the moment, that, since investigations are on against the taxable person, and therefore, proceedings are pending under Section 67 of the Act, there is nothing placed on record to show that there was material available with the respondent, linking the petitioner to purported fake invoices. In other words, in the absence of such material, the impugned action concerning provisional attachment of the petitioner s bank accounts, which is otherwise a draconian step, was unsustainable. The impugned provisional attachment orders dated 07.12.2020. are quashed - Petition allowed.

Summary

Issues involved:
1. Jurisdictional challenge to provisional attachment of bank accounts by respondent.
2. Application of Section 83 of the Central Goods and Services Tax Act, 2017.
3. Interpretation of the definition of 'taxable person' under Section 2(107) of the Act.
4. Compliance with procedural requirements before invoking Section 83.
5. Relevance of voluntary statement made by the petitioner in the investigation.

Comprehensive Analysis:

Issue 1: Jurisdictional challenge to provisional attachment
The petitioner challenged the jurisdiction of the respondent in provisionally attaching bank accounts, contending that she was not a 'taxable person' under the Act, with Milkfood Ltd. being the taxable entity. The Court held that the petitioner not being a taxable person was a crucial jurisdictional aspect. The impugned orders clearly identified Milkfood Ltd. as the taxable person, thereby indicating the lack of jurisdiction in attaching the petitioner's bank accounts.

Issue 2: Application of Section 83 of the CGST Act
The Court emphasized that provisional attachment under Section 83 can only be ordered concerning property belonging to the taxable person. Since the petitioner did not meet the definition of a taxable person, as per Section 2(107) of the Act, the proceedings were deemed to fail on this ground alone. The Court highlighted that the respondent failed to establish that the petitioner was either registered or liable to be registered under the Act.

Issue 3: Compliance with procedural requirements
The Court noted that the respondent did not provide any material demonstrating that the officer had applied his mind to the necessity of protecting the revenue before invoking Section 83. The absence of a link between the petitioner and the alleged illegal transactions of Milkfood Ltd. indicated that the provisional attachment of the petitioner's bank accounts was unsustainable, being a 'draconian' step without proper justification.

Issue 4: Relevance of voluntary statement
The voluntary statement made by the petitioner, where she acknowledged receiving payment for mentoring services to Milkfood Ltd., did not establish her involvement in the purported illegal activities. The Court concluded that the respondent's actions lacked substantiated material linking the petitioner to any wrongdoing, rendering the provisional attachment unjustified.

Conclusion:
The Court allowed the writ petition, quashing the provisional attachment orders dated 07.12.2020. The respondent was directed to inform the concerned banks accordingly. The order disposing of the petitioner's objections was also deemed to collapse entirely due to the proceedings being without jurisdiction. All parties were instructed to act on a digitally signed copy of the judgment, and the pending application was closed.