2022 (5) TMI 560 - HC - VAT and Sales Tax

Validity of Provisional attachment of accounts of the petitioner in the respondents 6 and 7 banks - formation of opinion or subjective satisfaction or not - whether as on the date of the orders of provisional attachment there were no proceedings pending under Section 67 of the Act nor any proceedings have been initiated either under Section 73 or 74 of the Act? - HELD THAT - A perusal of the impugned orders of provisional attachment shows that the fourth respondent herein stated in the said orders that as per the information available with the Department and in order to protect the interest of the Government revenue in exercise of the powers conferred under Section 83 of the Act the account is provisionally attached - it may be appropriate to refer to the provisions of Rule 159 of the Sales Tax Rules. According to sub-Rule (5) of Rule 159 of the Rules the assessee may within seven days of the attachment under sub-Rule (1) file an objection to the effect that the property attached was or is not liable to attachment before the Commissioner and the Commissioner may after affording an opportunity of being heard to the person filing the objection release the said property by an order in FORM GST DRC-23. Admittedly except saying that the orders of provisional attachment are passed in order to protect the interest of the Government revenue no other reasons are assigned by the fourth respondent in the impugned orders of provisional attachment. When sub-Rule (5) of Rule 159 of the Rules specifically provides for filing objections against the orders of provisional attachment the contention that the reasons for ordering provisional attachment were recorded in the Note File and that there is no need to extract the same or state the same in the provisional order of attachment in the considered opinion of this Court cannot stand for judicial scrutiny. This Court is of the opinion that the petitioner has made out prima facie case for grant of interim relief - there shall be interim suspension of the provisional attachment orders dated 01.04.2022 and 06.04.2022 till 15.07.2022. Post the matter for hearing on 05.07.2022.

Summary

Issues Involved:
1. Whether the formation of opinion or subjective satisfaction was recorded in the impugned orders of provisional attachment.
2. Whether proceedings under Section 67 of the Act or any proceedings under Section 73 or 74 were pending at the time of the provisional attachment orders.

Issue-wise Detailed Analysis:

1. Formation of Opinion or Subjective Satisfaction:
The petitioner contended that the fourth respondent did not record anything regarding the formation of opinion or subjective satisfaction in the impugned orders of provisional attachment, which is contrary to Section 83 of the A.P. General Sales Tax Act, 2017. The petitioner relied on the judgments of the Supreme Court in M/s Radha Krishan Industries v. State of Himachal Pradesh and the Gujarat High Court in M/s Anjani Impex v. State of Gujarat, which emphasize that the formation of opinion must be based on tangible material and must be explicitly recorded.

The court noted that Section 83 requires the Commissioner to form an opinion that provisional attachment is necessary to protect the interest of the government revenue. The Supreme Court in M/s Radha Krishan Industries highlighted that the power to levy a provisional attachment is draconian and must be exercised with strict adherence to statutory preconditions, including the formation of opinion based on tangible material.

The court observed that the impugned orders merely stated that the provisional attachment was to protect the interest of the government revenue without providing specific reasons or tangible material. This lack of detailed reasoning prevents the assessee from filing objections as provided under Rule 159(5) of the Rules. The court concluded that the fourth respondent failed to adhere to the mandatory requirement of forming an opinion based on tangible material, rendering the provisional attachment orders legally unsustainable.

2. Pendency of Proceedings Under Section 67, 73, or 74:
The petitioner argued that as of the date of the provisional attachment orders, no proceedings under Section 67 were pending, nor had any proceedings been initiated under Section 73 or 74. The petitioner supported this claim by stating that the respondent authorities had already conducted search and seizure operations, recorded statements, and seized documents, indicating the conclusion of proceedings under Section 67.

The government pleader countered that the provisional attachment orders were issued to protect government revenue and that the proceedings under Section 67 were still incomplete and pending.

The court referred to the order of seizure under Form GST INS-02, which the petitioner submitted as evidence of the concluded proceedings under Section 67. Given the conflicting submissions, the court found that the petitioner made a prima facie case for interim relief, warranting the suspension of the provisional attachment orders.

Conclusion:
The court granted interim relief by suspending the provisional attachment orders dated 01.04.2022 and 06.04.2022 until 15.07.2022, and scheduled the matter for further hearing on 05.07.2022. The court emphasized the necessity for the Commissioner to record detailed reasons and tangible material when forming an opinion for provisional attachment, as required by Section 83 of the Act and relevant judicial precedents.