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TMI Blog2020 (9) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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. - CWP No. 11961 of 2020 (O&M) - - - Dated:- 9-9-2020 - Mr. Justice Rakesh Kumar Jain. And Mr. Justice Ashok Kumar Verma For the Petitioner : Mr. B.L. Narasimha, Advocate And Mr. Amrinder Singh, Advocate For the Respondents : Mr. Tajender Joshi, Advocate ORDER RAKESH KUMAR JAIN, J. The petitioner has prayed for the issuance of a writ in the nature of certiorari for quashing the order dated 29.07.2020, provisionally attaching the bank account, maintained by the petitioner with respondent No. 3, letter dated 29.07.2020 issued by respondent No. 2 intimating the petitioner about the impugned attachment and order dated 06.08.2020 passed by respondent No. 2 rejecting the objections file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has become redundant. On the other hand, counsel for the respondents has vehemently argued that the proceedings initiated under Section 83 of the Act has been initiated because the proceedings under Section 67 have been launched which shall culminate into the proceedings under Section 63 or 74 of the Act. We have heard counsel for the parties and perused the record with their able assistance. In order to appreciate the rival contentions, it would be relevant to refer to Section 83 of the Act which is reproduced as under:- Section 83. Provisional attachment to protect revenue in certain cases (1) Where during the pendency of any proceedings under section 62 or section 63 or section 64 or section 67 or section 73 or section 74, the Commissioner is of the opinion that for the purpose of protecting the interest of the Government revenue, it is necessary so to do, he may, by order in writing attach provisionally any property, including bank account, belonging to the taxable person in such manner as may be prescribed. (2) Every such provisional attachment shall cease to have effect after the expiry of a period of one year from the date of the order made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , books or things referred to in sub-section (2) or any other documents, books or things produced by a taxable person or any other person, which have not been relied upon for the issue of notice under this Act or the rules made thereunder, shall be returned to such person within a period not exceeding thirty days of the issue of the said notice. (4) The officer authorised under sub-section (2) shall have the power to seal or break open the door of any premises or to break open any almirah, electronic devices, box, receptacle in which any goods, accounts, registers or documents of the person are suspected to be concealed, where access to such premises, almirah, electronic devices, box or receptacle is denied. (5) The person from whose custody any documents are seized under sub-section (2) shall be entitled to make copies thereof or take extracts therefrom in the presence of an authorised officer at such place and time as such officer may indicate in this behalf except where making such copies or taking such extracts may, in the opinion of the proper officer, prejudicially affect the investigation. (6) The goods so seized under sub-section (2) shall be released, on a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on return of goods so purchased by such officer, such taxable person or any person in charge of the business premises shall refund the amount so paid towards the goods after cancelling any tax invoice or bill of supply issued earlier. However, counsel for the respondents has argued that the attachment order shall subsist till the culmination of the proceedings into Sections 63 or 74 of the Act. Sections 63 and 74 of the Act are reproduced as under:- Section 63 Assessment of unregistered persons - Notwithstanding anything to the contrary contained in section 73 or section 74, where a taxable person fails to obtain registration even though liable to do so or whose registration has been cancelled under sub-section (2) of section 29 but who was liable to pay tax, the proper officer may proceed to assess the tax liability of such taxable person to the best of his judgment for the relevant tax periods and issue an assessment order within a period of five years from the date specified under section 44 for furnishing of the annual return for the financial year to which the tax not paid relates: Provided that no such assessment order shall be passed without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any penalty payable under the provisions of this Act or the rules made thereunder. (7) Where the proper officer is of the opinion that the amount paid under sub-section (5) falls short of the amount actually payable, he shall proceed to issue the notice as provided for in sub-section (1) in respect of such amount which falls short of the amount actually payable. (8) Where any person chargeable with tax under sub-section (1) pays the said tax along with interest payable under section 50 and a penalty equivalent to twenty-five per cent. of such tax within thirty days of issue of the notice, all proceedings in respect of the said notice shall be deemed to be concluded. (9) The proper officer shall, after considering the representation, if any, made by the person chargeable with tax, determine the amount of tax, interest and penalty due from such person and issue an order. (10) The proper officer shall issue the order under sub-section (9) within a period of five years from the due date for furnishing of annual return for the financial year to which the tax not paid or short paid or input tax credit wrongly availed or utilised relates to or within five years fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scussed hereinabove, in the absence of pendency of any proceedings under Sections 62, 63, 64, 67, 73 or 74 of the GST Acts, the orders of provisional attachment of the bank accounts of the petitioners under Section 83 of the GST Acts are without authority of law and are rendered unsustainable. As a matter of fact, the Account No. 50100096314449 of the petitioner maintained with the HDFC Bank in its branch situated at S.C.O. No. 88, Sector 32-D, Chandigarh, bearing IFSC HDFC0001379, was attached by the impugned order dated 29.07.2020 while exercising powers under Section 83 of the Act on the ground that the proceedings have been launched under Section 67 of the Act. It is also an admitted fact that the proceedings under Section 67 have already been over and no proceedings under any other provisions much less under Section 63 or 74 have been initiated so far. In such circumstances, the question, would arise as what is the import of Section 83 of the Act for the purpose of issuing the order of provisional attachment of the bank account of the petitioner. The bare reading of Section 83 of the Act would show that the Commissioner has to form an opinion that for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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