2021 (9) TMI 377 - HC - GST

Lifting of provisional attachment - after passing order in form GST DRC-07 dated 16.03.2020 whether the authority could have passed an order of provisional attachment of property under Section 83 of the Act? - HELD THAT - The answer has to be in the negative. There is no question of invoking Section 83 of the Act for the purpose of provisional attachment once the final order in form GST DRC-07 is passed. The plain reading of the provisions would indicate that if any amount of tax, interest or penalty like the one in our case is payable by a person to the Government under any of the provision of this Act or the Rule then such amount can be recovered by a proper Officer of State Tax or the Union Territory as the case may be, as if it were an arrear of State Tax or the Union Territory Tax. In other words, this provision can be interpreted or can be understood as recovery of any debts, interest or penalty by way of revenue measures. Its like recovery under the Bombay Land Revenue Code. This is possible or rather permissible only after proper attachment of any property of the assessee. This attachment which we are talking about has nothing to do with the provisional attachment under Section 83 of the Act. For the purpose of sub clause 3, the attachment is permissible even under the provisions of the Bombay Land Revenue Code. The impugned order of provisional attachment purported to have been passed under Section 83 of the Act could be said to be without jurisdiction - Petition allowed.

Summary

Issues:
1. Validity of action under Section 83 taken by respondent no.4
2. Direction to lift attachment of property and not take coercive action against the petitioner
3. Jurisdiction of passing order of provisional attachment after passing order in form GST DRC-07
4. Interpretation of Section 79(3) of the Act regarding recovery of tax arrears

Analysis:

Issue 1: Validity of action under Section 83
The Co-ordinate Bench found that the provisional attachment of property by respondent no.4 under Section 83 of the GST Act was arbitrary and beyond the scope of the provision. The power under Section 83 can only be exercised during the pendency of specific proceedings mentioned in the Act. As no such proceedings were pending, the exercise of power was deemed arbitrary and without jurisdiction. The Co-ordinate Bench directed respondent no.4 to provide an affidavit explaining the circumstances of the attachment order, and subsequently ordered the lifting of the provisional attachment.

Issue 2: Direction to lift attachment and restrain coercive action
The Co-ordinate Bench granted relief by directing the immediate lifting of the provisional attachment. This action was considered as allowing the writ application on the same date. The final relief was granted by the Co-ordinate Bench, restraining any coercive action against the petitioner and ordering the lifting of the attachment.

Issue 3: Passing order of provisional attachment post GST DRC-07
After the authority passed an order in form GST DRC-07 fixing a penalty liability, the question arose whether a provisional attachment under Section 83 could be issued. The Court held that once a final order in form GST DRC-07 is passed, invoking Section 83 for provisional attachment is not permissible. The recovery of tax arrears can be done under Section 79(3) of the Act, but not through provisional attachment under Section 83.

Issue 4: Interpretation of Section 79(3) for recovery of tax arrears
Section 79(3) allows the recovery of tax, interest, or penalty as arrears of State tax or Union territory tax. The provision permits the recovery of debts, interest, or penalties through revenue measures, akin to recovery under the Bombay Land Revenue Code. Proper attachment of the assessee's property is required for such recovery, which is distinct from the provisional attachment under Section 83. The Court held that the impugned order of provisional attachment under Section 83 was without jurisdiction and quashed it, leaving room for the respondents to initiate appropriate proceedings within the bounds of the law.