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2021 (9) TMI 716 - HC - GSTProvisional attachment of bank accounts - misuse of power u/s 83 of the CGST Act, 2017 - Pendency of proceedings under Sections 62, 63, 64, 67, 73 and 74 of the CGST Act, 2017 was not available to the Department - HELD THAT - In the present case no notice has been issued to the petitioner under Section 74 or any other Section. On advance notice, Mr. Anshuman Chopra, Senior Standing Counsel appears and accepts notice on behalf of the respondents and seeks time to file reply but accepts that the facts have been enumerated in the record. In our considered opinion, once the facts are not disputed and quasi judicial order has been passed there is no requirement of filing reply - the conclusion is inescapable that the facts are covered by the judgment in the case of M/S RADHA KRISHAN INDUSTRIES VERSUS STATE OF HIMACHAL PRADESH ORS. 2021 (4) TMI 837 - SUPREME COURT where it was held that Given that there were no pending proceedings against the appellant, the mere fact that proceedings under Section 74 had concluded against GM Powertech, would not satisfy the requirements of Section 83. Thus, the order of provisional attachment was ultra vires Section 83 of the Act. The petition is allowed.
Issues:
Challenge to order modifying attachment of bank account under GST Rules without proper conditions under Section 83 of the CGST Act, 2017. Analysis: 1. The petitioner challenged an order modifying the attachment of their bank account under GST Rules, alleging that the respondent misused power under Section 83 of the CGST Act, 2017. The petitioner contended that the pre-conditions for invoking Section 83, such as the pendency of proceedings under specific sections of the Act, were not met by the Department. 2. The respondent had provisionally attached the petitioner's bank account on 16.7.2021, leading to the filing of objections by the petitioner under Rule 159. After a court directive to decide the objections promptly, the impugned order was passed by the respondent. The petitioner argued that no notice was issued under Section 74 or other relevant sections, citing a Supreme Court judgment highlighting the necessity of proper legal process before attachment. 3. The petitioner's counsel relied on a recent Supreme Court judgment, emphasizing the importance of fulfilling the legal requirements before invoking powers like those under Section 83. The Supreme Court's ruling in a similar case underscored that the mere conclusion of proceedings against another entity did not justify attaching the petitioner's property without due process. 4. During the hearing, the respondent's counsel contended that the petitioner was uncooperative during the investigation, justifying the modified order releasing the bank account but requiring alternative security. However, the court found that the facts were undisputed, and a quasi-judicial order had been passed, making a reply unnecessary. The court concluded that the case fell within the purview of the precedent set by the Supreme Court judgment. 5. Ultimately, considering the binding precedent established by the Supreme Court, the court allowed the petition and set aside the provisional assessment order. With the main case resolved, any pending civil miscellaneous applications were also disposed of as a consequence of the judgment.
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