2022 (4) TMI 407 - HC - GST

Provisional attachment order of property - section 83 of the CGST Act, 2017 - HELD THAT - The respondent no.2, inspite of repeated reminder by this Court in various decisions has once again overlooked the aforesaid guidelines issued by the Central Board of Indirect Taxes and Customs dated 23.02.2021, which otherwise in clear terms provides the guidelines to be adhered while exercising powers conferred upon the respondent authority under Section 83 of the GST Act. This Court in the case of VALERIUS INDUSTRIES VERSUS UNION OF INDIA 2019 (9) TMI 618 - GUJARAT HIGH COURT has held that power of provisional attachment under section 83 of the act should be exercised by the authority only if there is reasonable apprehension that the assessee may default the ultimate collection of the demand that is likely to be raised on completion of the assessment. It should therefore be exercised with extreme care and caution. The Court held that power under section 83 of the act should not be used as a tool to harass the assessee nor should it be used in as manner which may have irreversible detrimental effect on the business of the assessee . In the facts of the case, undisputedly, the respondent no.2 has not only provisionally attached the stock of goods lying at the factory premise of the writ applicants, at the same time, the respondent No.2 has also provisionally attached the demat account and current account of the writ applicants. These are the valuable assets of the writ applicants, more particularly, raw material and the finished goods are valuables which are otherwise necessary for running of the business of the applicants. Even operating the demat account and current account are essentially required for the routine business of the writ applicants. Time and again, this Court as well as even the instructions instructions issued by the higher authority of the respondents, has directed the proper officer to ensure that their action of the provisional attachment should not hamper normal business activities of the taxable person - This Court did not approve the provisional attachment of the goods, stock and receivables, more particularly, when the entire stock and receivables have been pledged and a floating charge has been created in favour of the Kalupur Commercial Bank Limited for the purpose of availing the cash credit facility with the provisional attachment of the goods, stock and receivables the entire business will come to a standstill. The order of the provisional attachment dated 27.11.2021 qua the stock of goods, two demat accounts as well as current account of the writ applicants is set aside - So far the prayer of the writ applicants with regard to release of electronic items including Mobile Phone, laptop and other documents seized during the search proceedings are concerned, same is also directed to be released forthwith on condition that the writ applicants shall file an undertaking before the respondent no.2 thereby declaring that the aforesaid goods electronic items including mobile phone, laptop and other seized documents shall be retained in its original form and shall not be disposed of pending the investigation, if any. Petition disposed off.

Summary

Issues Involved:
1. Challenge to the provisional attachment order under the Gujarat Goods and Services Tax Act, 2017.
2. Legality and necessity of the provisional attachment for protecting government revenue.
3. Compliance with guidelines for provisional attachment issued by the Central Board of Indirect Taxes and Customs.
4. Impact of provisional attachment on the business operations of the petitioner.
5. Release of seized electronic items and documents.

Detailed Analysis:

1. Challenge to the Provisional Attachment Order:
The writ applicants challenged the provisional attachment order under Article 226 of the Constitution of India, contesting the provisional attachment of their properties under the Gujarat Goods and Services Tax Act, 2017 (GST Act). The applicants, a private limited company and its managing director, claimed regular tax payments and transactions with genuine dealers, supported by maintained records.

2. Legality and Necessity of the Provisional Attachment:
The Deputy Commissioner of State Tax suspected the writ applicants of purchasing from fictitious firms. Following a search at the business premises, the applicants were served with provisional attachment orders for various properties. The applicants argued that the Assistant Commissioner’s subjective satisfaction lacked tangible material, rendering the provisional attachment arbitrary and illegal. They cited the Supreme Court decision in Radhe Krishan Industries v. State of Himachal Pradesh, emphasizing that provisional attachment must be based on the opinion that it is necessary to protect government revenue.

3. Compliance with Guidelines for Provisional Attachment:
The applicants referenced guidelines issued by the Central Board of Indirect Taxes and Customs (CBIC) on 23.02.2021, which stipulate that provisional attachment should not hamper normal business activities. The respondents, however, argued that the applicants were engaged in bogus billing with fictitious firms, justifying the attachment to protect revenue interests. The court noted that the respondents overlooked the CBIC guidelines, which require careful examination before exercising attachment powers.

4. Impact of Provisional Attachment on Business Operations:
The court emphasized that provisional attachment should not disrupt the normal business activities of the taxable person. The attachment of stock of goods, demat accounts, and current accounts was seen as detrimental to the business operations of the applicants. The court referred to previous judgments, including Valerius Industries v. Union of India, which held that provisional attachment should be exercised with extreme care and caution.

5. Release of Seized Electronic Items and Documents:
The applicants requested the release of seized electronic items and documents, assuring that they would retain them in their original form. The court directed the release of these items on the condition that the applicants file an undertaking to retain them pending investigation, allowing the respondents to secure original data under Section 65B of the Information Technology Act.

Conclusion:
The court quashed the provisional attachment order dated 27.11.2021 concerning the stock of goods, demat accounts, and current accounts. It directed the release of seized electronic items and documents, subject to the applicants' undertaking to retain them in their original form. The petition was disposed of accordingly.