2022 (3) TMI 89 - HC - GST

Legality of search and seizure conducted in the office premises of the appellant - seeking to return the sum which, according to the appellant, was forcibly obtained from the appellant and to the same effect an interim order was also sought for - HELD THAT - The appellant cannot question an order of seizure by way of a writ petition nor a summon could be challenged to the writ petition. Once we steer clear of the legal principle, we take note of the other submissions of the learned counsel for the appellant. It is submitted that when summons dated 14.11.2021 was signed, the appellant was to appear at the Office of the appellant itself on 01.11.2021. One fails to understand as to how the summon dated 14.11.2021 could have been issued and directed the appellant to appear on 01.11.2021. It is not clear whether there is a typographical error. Be that as it may, the appellant sent a representation seeking adjournment of the hearing on health grounds. After stating out certain other factual details, the appellant stated that he retracts statement recorded by the Officers as well as the payment of ₹ 47,99,184/- which was shown to be made voluntarily by the appellant in form DRC-03. The learned writ court had directed the respondent to consider the said representation wherein there was retraction regarding the money paid. No useful purpose would be served by directing the authority to consider the representation made on 30.12.2021 since the show cause notice is yet to be issued by the concerned respondent/authority. The question whether the payment of ₹ 47,99,184/- was voluntarily made or not also is a factual matter to be decided by the adjudicating authority and not in a writ petition. Admittedly, the payment has been made through banking channels in the statutory form presumably by way of e-payment. Therefore, the onus is on the appellant to establish that the payment was extracted by undue force and threat etc. - the concerned respondent shall expeditiously take steps in issuing show cause notice and giving reasonable time concerned to the appellant to reply the same and afford personal hearing to the appellant and thereafter adjudicate the case on merits in accordance with law and pass an order of adjudication. Application disposed off.

Summary

Issues:
Challenge against order of seizure and summons in writ petition. Representation for return of money seized. Consideration of retracted statement and payment. Show cause notice issuance and adjudication timeline. Retention of seized amount till adjudication. Adjudication process and submissions by appellant. Allegations against department and officers.

Analysis:
The appeal before the High Court was against an order passed by a Single Judge regarding a writ petition filed by the appellant concerning a search and seizure conducted in their office premises. The appellant sought the return of a specific sum of money, alleging it was forcibly obtained, and also requested an interim order. The Single Judge directed the concerned respondent to dispose of the appellant's representation within a specified time frame. The appellant challenged this order, leading to the appeal.

The High Court noted that challenging a seizure order or a summons through a writ petition was not permissible. The appellant had raised concerns about the summon date and subsequent events, including being compelled to make decisions and payments. The appellant retracted statements and payments made, which were being considered by the authorities. The Court observed that the adjudicating authority needed to issue a show cause notice before considering such matters and determining the voluntariness of the payment. The appellant was directed to establish any undue force or threat in making the payment.

Given the circumstances, the Court decided that retaining the seized amount in the appellant's credit until adjudication was appropriate. The concerned authority was instructed to promptly issue a show cause notice, allow the appellant to respond, provide a personal hearing, and adjudicate the case based on merit and law. The appellant could present submissions regarding the retraction during this process. The Court emphasized the need for expedited proceedings considering the revenue's interest.

Furthermore, the Court agreed with the respondent revenue's counsel that personal allegations against the department and its officers, along with related reliefs, were not within the writ court's purview and were thus dismissed. The appeal and connected application were disposed of based on these observations, providing clarity on the next steps in the adjudication process and the handling of the seized amount.