2021 (9) TMI 564 - HC - GST

Provisional attachment of property - no proceedings are pending against the petitioner under sections 62 or 63 or 64 or 67 or 73 or 74 thereof - Vires of section 83 of CGST Act - HELD THAT - Mr. Mishra has not disputed that no proceedings under sections 62 or 63 or 64 or 67 or 73 or 74 have yet been initiated against the petitioner - the issue is squarely covered by the decision in M/S. S.S. OFFSHORE PVT. LTD. VERSUS UNION OF INDIA ORS. 2021 (8) TMI 344 - BOMBAY HIGH COURT . Whilst so deciding, the Division Bench had relied on the decision of the M/S RADHA KRISHAN INDUSTRIES VERSUS STATE OF HIMACHAL PRADESH ORS. 2021 (4) TMI 837 - SUPREME COURT where it was held that the order passed by the Joint Commissioner as a delegate of the Commissioner was not subject to an appeal under Section 107(1) and the only remedy that was available was in the form of the invocation of the writ jurisdiction under Article 226 of the Constitution. The High Court was, therefore, clearly in error in declining to entertain the writ proceedings. The order of provisional attachment under challenge is clearly in the teeth of the decision in Radha Krishan Industries - The order of provisional attachment dated 09/11/2020 stands set aside with further direction to the Assistant Commissioner to defreeze the bank account of the petitioner immediately. Petition allowed.

Summary

Issues:
Challenge to provisional attachment order under section 83 of the Central Goods and Services Tax Act, 2017 due to non-existence of pending proceedings under relevant sections.

Analysis:
The writ petition challenges an order dated 09/11/2020 by the Assistant Commissioner for provisional attachment of property under section 83 of the CGST Act, contending that no proceedings are pending against the petitioner under specific sections, rendering the jurisdictional fact for the order non-existent. The petitioner relies on a Division Bench decision to support their argument, where a similar provisional attachment order was set aside. On the other hand, the respondents argue that the petitioner should seek relief under Rule 159(5) to revoke the attachment order, citing a different decision by the same Division Bench.

Upon hearing both parties and examining the cited decisions, it is noted that no proceedings under the relevant sections have been initiated against the petitioner. The court distinguishes the present case from the decision cited by the respondents, as the issue of the provisional attachment order being made without pending proceedings was not raised in that case. The court agrees with the petitioner's argument, finding alignment with the decision in M/s. S.S. Offshore Pvt. Ltd., supported by a Supreme Court decision. The court concludes that the provisional attachment order is contrary to the Supreme Court decision and sets it aside, directing the defreezing of the petitioner's bank account immediately. The writ petition is allowed with no costs, while leaving room for the respondents to act within the boundaries of the law.