9911796707
TMI Blog2019 (10) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... n (2) of section 67 of the Gujarat Goods and Service Tax Act, 2017 (hereinafter referred to as the 'GGST Act') (Annexure-A to the petition) and seeks release of the above vehicle and the mobile phones so seized. 4. The facts as averred in the petition are that according to the respondents the petitioner had committed an offence punishable under sections 132(1)(b) and 132(1)(c) of the GGST Act on the allegation that the petitioner is the proprietor of M/s. Om Enterprise and had wrongly availed input tax credit amounting to Rs. 10-15 crores and passed on the same to various other buyers. It is further the case of the respondents that the petitioner indulged in such activities attracting tax/input tax credit amounting to more than Rs. 10 -15 crores. 5. It is the case of the petitioner that he was called by the third respondent-Assistant Commissioner of State Tax, on 25. 10. 2018 for the purpose of inquiry and investigation and on the same day he had appeared before the officer. However, during the course of the inquiry, the third respondent seized the car and the mobile phones of the petitioner without drawing any panchnama and the petitioner was directly served with a sei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson not below the rank of Joint Commissioner for carrying out search in accordance with the provisions of subsection (2) of section 67 of the CGST/ GGST Act, 2017. 5. Under the circumstances, the impugned action of the said Officer appears to be totally without any authority of law. Moreover, since the details of the premises as stated in the impugned order is Rajya Kar Bhavan, Ahmedabad, it is manifest that no officer would permit search on such premises in accordance with the powers under sub-section (2) of section 67 of the CGST/ GGST Act, 2017. 6. In view of the above, Shri B. B. Pandor, Assistant Commissioner of State Tax (1) (Enforcement), Division-1, Ahmedabad shall be joined as respondent No. 4 in these proceedings. 7. Issue Notice to the newly joined respondent to explain as to under what circumstances and in exercise of which powers he has issued the impugned order dated 25. 10. 2018, returnable on 10th October, 2019. 8. Registry to forthwith forward a copy of this order to the concerned Officer." Accordingly, the concerned officer who passed the order of seizure has been joined as a party. 8. Mr. Maulik Vakhariya, learned advocate for the petitioner, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essed by the respondent No. 4, but the premises were closed since six months and the petitioner had shifted to some residential cum business premises at Sanand and that thereafter he had shifted to Gandhinagar. That the authorities tried to trace out the petitioner's new address, but even the bank officials were not aware of his changed residence or business premises. That on receiving information that the authorities had visited his old business premises, the petitioner on his own appeared before the authority on 25. 10. 2018, whereupon his statement came to be recorded, in which he categorically mentioned that he was involved in billing transactions at the behest of two other persons viz. Madhav Shah and Hitendra Shah and had admitted to pay the tax as calculated by the authorities and sought an adjournment. That the petitioner did not remain present nor did he pay the amount of tax within two days as mentioned in his statement, and hence, summons came to be issued to the petitioner on 1. 11. 2018, which was ignored by him. On 3. 11. 2018 a reminder was sent to the petitioner calling upon him to give information about Madhav Shah and Hitendra Shah as well as for payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or has kept his accounts or goods in such a manner as is likely to cause evasion of tax payable under this Act, he may authorise in writing any other officer of central tax to inspect any places of business of the taxable person or the persons engaged in the business of transporting goods or the owner or the operator of warehouse or godown or any other place. (2) Where the proper officer, not below the rank of Joint Commissioner, either pursuant to an inspection carried out under subsection (1) or otherwise, has reasons to believe that any goods liable to confiscation or any documents or books or things, which in his opinion shall be useful for or relevant to any proceedings under this Act, are secreted in any place, he may authorise in writing any other officer of central tax to search and seize or may himself search and seize such goods, documents or books or things: Provided that where it is not practicable to seize any such goods, the proper officer, or any officer authorized by him, may serve on the owner or the custodian of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer: Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed powers under subsection (2) of section 67 of the GGST Act. It may be noted that the order of seizure merely refers to section 67(2) without reference to the relevant enactment. In the order it is stated that he is seizing the goods/books/documents and things referred to therein in exercise of powers conferred on him under sub-section (2) of section 67 as on scrutiny of books of account, registers, documents/paper and goods found during the inspection/search, he has reasons to believe that certain goods liable to confiscation and or documents and/or books and/or things useful or relevant to proceedings under that Act are secreted in the place mentioned above. Interestingly, in the seizure order, the place where the documents and/or books and/or things useful or relevant for the proceedings are secreted is stated to be "Rajya Kar Bhavan" namely the State Tax Office. Thus, according to the respondent No. 4, the petitioner has secreted goods/books/ documents and things at the State Tax Office and therefore, search is required to be carried out of those premises. 14. It may be pertinent to note that in the order dated 27. 09. 2019, whereby the respondent No. 4 was made a party res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itnesses. 16. Thus, not only has the order of seizure been made without any authority of law, the order of seizure also suffers from various deficiencies as referred to hereinabove. It is, therefore, apparent that the entire exercise of seizing the car and the mobile phones of the petitioner is nothing but a farce under the guise of exercise of statutory powers without obtaining the necessary authorisation, and a blatant show of brute force by a high ranking officer in gross abuse of powers. The explanation given in the affidavit-in-reply as regards the illegalities alleged to have been committed by the petitioner, does not give the fourth respondent a licence to act in excess of the powers vested in him. Such action on the part of the respondent No. 4 cannot be countenanced even for a moment. 17. It may be noted that on 25. 9. 2019, this court had passed an order in the following terms:- "1. Mr. Maulik Vakhariya, learned advocate for the petitioner has invited the attention of the court to the order of seizure made under rule 139(2) of the Goods and Services Tax Rules, 2017, to point out that the petitioner's car bearing No. GJ-01- RX-0477 has been seized at the Rajya Kar B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending under section 62 or section 63 or section 64 or section 67 or section 73 or section 74 thereof. In the present case, no proceeding under any of the above sections is stated to have been pending against the petitioner at the time when the order of seizure came to be made. The only proceeding which finds reference in the affidavit-in-reply is under section 71 of the GGST Act which relates to access to business premises. As is apparent of a plain reading of section 83 of the GGST Act, the same does not empower the Commissioner to take action thereunder during the pendency of proceedings under section 71 of the GGST Act. Therefore, the impugned order of seizure made by the respondent No. 4 is not relatable to any provision of the GGST Act. Therefore, it is not even possible to say that the provision referred to in the impugned order is incorrect but that the respondent No. 4 was otherwise vested with such powers. Under the circumstances, the inescapable conclusion is that the respondent No. 4 has acted without any authority of law and in gross abuse of powers, which renders the impugned order of seizure, unsustainable. 20. However, having regard to the gross abuse of powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such citizen be compensated for the undue harassment faced by him on account of the unauthorised action of the concerned officer. This court is, therefore, inclined to award exemplary costs in favour of the petitioner. 24. However, it may be noted that the learned advocate for the petitioner, under instructions of the petitioner, has requested this court not to pass any orders which may affect the respondent No. 4 personally and has further stated that he is not interested in getting any compensation for the damage suffered by him on account of the arbitrary and unlawful action of the respondent No. 4. It is evident as to why the petitioner has taken such a stand. The said request of the petitioner seems to emanate from the fact that the petitioner who is covered by the Goods and Services Tax Act has to deal with the officer concerned day in and day out and is, therefore, afraid of taking any action against him out of fear of facing reprisal for his action as the entire department would be up in arms against him and he would have to face untold harassment in future. Therefore, at the request of the petitioner, the court refrains from passing any order of exemplary costs. 25. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
