2020 (9) TMI 583 - HC - GST

Release of attached Bank Account of petitioner - Section 83 of CGST Act - Rule 159 (5) of the Central Goods and Services Tax Rules, 2017 - The respondents (GST authority) passed the order of partly releasing the Bank Account for payments under the Amnesty Scheme but rejected the prayer to release the provisional attachment holding that the petitioner does not have any property other than the Bank Account from where the Government revenue can be protected. HELD THAT - The effect of Section 83 of the Act shall come to an end as soon as the proceedings pending in any of the aforesaid Sections i.e. 63 or 64 or 67 or 73 or 74 are over because pendency of the proceedings is the sine qua non and in case the Commissioner still feel or is of the opinion that it is necessary so to do in the interest of protecting the Government revenue, it still can pass an order in writing to attach any property or even the bank account of the taxable person if the proceedings are initiated in any of the aforesaid provisions and are pending but for the provisions in which the proceedings have earlier been initiated and are over. The impugned orders passed by the respondents are patently illegal specially when the proceedings initiated under Section 67 of the Act has already been over - impugned orders are hereby set aside with a direction to the respondents to release the aforesaid bank account of the petitioners forthwith which has been provisionally attached vide order dated 29.07.2020.

Summary

Issues Involved:
1. Legality of the provisional attachment of the petitioner's bank account under Section 83 of the Central Goods and Services Tax Act, 2017.
2. Continuation of attachment post-completion of proceedings under Section 67 of the Act.
3. Interpretation and application of Sections 63, 67, and 74 of the Central Goods and Services Tax Act, 2017.

Detailed Analysis:

1. Legality of the Provisional Attachment under Section 83:
The petitioner challenged the provisional attachment of their bank account, arguing that the attachment order dated 29.07.2020, issued under Section 83 of the Central Goods and Services Tax Act, 2017 (the Act), had become redundant as the proceedings under Section 67 of the Act had concluded. The petitioner sought a writ of certiorari to quash the attachment order and a writ of mandamus to direct the release of the attached bank account. The court examined Section 83, which allows the Commissioner to provisionally attach any property, including bank accounts, during the pendency of proceedings under specified sections, including Section 67.

2. Continuation of Attachment Post-Completion of Proceedings under Section 67:
The court noted that the attachment was initially justified under Section 83 due to ongoing proceedings under Section 67, which involves inspection, search, and seizure. However, the court highlighted that the proceedings under Section 67 had concluded, and no further proceedings under Sections 63 or 74 had been initiated. The court emphasized that the sine qua non for the exercise of powers under Section 83 is the pendency of proceedings under the specified sections. Once the proceedings under Section 67 concluded, the basis for the provisional attachment ceased to exist.

3. Interpretation and Application of Sections 63, 67, and 74:
The court referred to the relevant sections of the Act:
- Section 67: Grants the power of inspection, search, and seizure to the proper officer when there is reason to believe that a taxable person has suppressed transactions or evaded tax.
- Section 63: Pertains to the assessment of unregistered persons.
- Section 74: Deals with the determination of tax not paid or short paid due to fraud or willful misstatement.

The court cited the Gujarat High Court's decision in Kushal Ltd. Vs. Union of India, which held that provisional attachment under Section 83 is not sustainable if no proceedings are pending under the specified sections. The court concluded that the provisional attachment should cease once the proceedings under Section 67 are over, unless new proceedings under Sections 63 or 74 are initiated.

Conclusion:
The court found the provisional attachment orders to be "patently illegal" as the proceedings under Section 67 had concluded without any new proceedings under Sections 63 or 74 being initiated. Consequently, the court set aside the impugned orders and directed the respondents to release the petitioner's bank account forthwith.

Order:
The impugned orders dated 29.07.2020 and 06.08.2020 were quashed, and the respondents were directed to release the petitioner's bank account provisionally attached under Section 83 of the Act.