2021 (1) TMI 798 - HC - GST

Attachment of Bank Accounts of petitioner - refund sought for the amount which was got deposited by him without there being any Show Cause Notice or demand - Section 83 of the Central Goods and Services Tax Act, 2017 - HELD THAT - As per the counsel for the respondents the order itself reveals that it was passed with the consent of the Commissioner. However, this would not be a complete answer because under Rule 159 a person whose property has been provisionally attached can file objections and if the written order of the Commissioner is not communicated to him he would not be in a position to know what are the reasons which the Commissioner had, to arrive at the conclusion that it was in the interest of the Revenue to attach the property. If what is stated by the learned counsel for the respondent is accepted then such a person would never have the benefit of the reasons which weighed with the Commissioner and consequently not be able to file any effective objection - Resultantly, the order of attachment has to go and is consequently set aside. As regards the second plea of refund it is the case of the respondents that the amount was voluntarily deposited by the petitioner and now a Show Cause Notice has been sent demanding more duty. Reliance placed in the Division Bench Judgment of this Court in Concepts Global Impex Vs. Union of India, 2018 (11) TMI 688 - PUNJAB AND HARYANA HIGH COURT in that case also there was an identical fact situation where that person had deposited certain amount of money which as per him were taken by coercion but which as per the respondents was deposited voluntarily. However, at the time of deposit, 2 of 3 just like in the present case neither any demand or Show Cause Notice was pending and just like in the present case when that writ petition came up for hearing a Show Cause Notice had already been issued. This Court however directed the refund of the amount after retaining 10% of the duty demanded. The judgment of the Division Bench of this Court would be binding on this Bench - the prayer for refund also disposed off - application disposed off.

Summary

Issues:
1. Challenge to the order attaching the petitioner's bank account.
2. Prayer for refund of a deposited amount without a Show Cause Notice or demand.

Analysis:

Issue 1: Challenge to the order attaching the petitioner's bank account
The petitioner challenged the order attaching his bank account, invoking Section 83 of the Central Goods and Services Tax Act, 2017. The petitioner contended that the order was passed by the Assistant Commissioner. However, the respondents argued that the order was passed with the consent of the Commissioner. The Court noted that under Rule 159, a person whose property has been provisionally attached can file objections. If the written order of the Commissioner is not communicated to the person, they would not have the opportunity to understand the reasons for the attachment and file effective objections. Consequently, the Court set aside the order of attachment.

Issue 2: Prayer for refund of a deposited amount
The petitioner sought a refund of an amount deposited without a Show Cause Notice or demand. The respondents claimed that the amount was voluntarily deposited by the petitioner, and a Show Cause Notice had been subsequently issued demanding more duty. The petitioner relied on a Division Bench Judgment of the Court in a similar case, where a refund was directed after retaining 10% of the duty demanded. The respondents cited a judgment of the Delhi High Court, suggesting that the aggrieved person could file a suit for recovery. The Court held that the Division Bench Judgment of the Court would prevail over the judgment of another High Court. Accordingly, the Court disposed of the prayer for refund in line with the earlier Division Bench Judgment.

In conclusion, the Court set aside the order attaching the petitioner's bank account and directed the refund of the deposited amount following the precedent established in a previous Division Bench Judgment. The miscellaneous application, if any, was also disposed of in light of the main case decision.