9911796707
TMI Blog2021 (1) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... r of attachment, any order under Section 83 is wholly illegal and unsustainable. In the present case, without going into the merits of the allegations made against the petitioner, the admitted position is that no proceedings under any of the provisions mentioned in Section 83 of the Act were in fact initiated against the petitioner. In these circumstances, the impugned order is ultra vires the statutory powers of the respondent no. 2, and is hereby quashed. Petition allowed. - W.P.(C) 11245/2020 & CM APPL. 35053/2020 - - - Dated:- 6-1-2021 - HON BLE MR. JUSTICE PRATEEK JALAN Petitioner Through: Mr.Govind Rishi, Advocate Respondents Through: Mr.Harpreet Singh, Adv. for R-2 Mr.S.K.Tanwar, Adv. for R-3 PRATEEK JALAN, J. (ORAL) The proceedings in the matter have been conducted through video conferencing. 1. By way of the present petition, the petitioner seeks to challenge a communication dated 25.11.2020/01.12.2020 (Annexure-9 to the writ petition), by which the bank account of the petitioner in the respondent no.3-Bank ( the Bank ) has been attached by respondent no. 2, purportedly under Section 83 of the Central Goods and Services Tax Act, 2017 ( th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 authorised 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: Provided further that the documents or books or things so seized shall be retained by such officer only for so long as may be necessary for their examination and for any inquiry or proceedings under this Act. (3) The documents, books or things referred to in subsection (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proper officer has reasons to believe that any person has evaded or is attempting to evade the payment of any tax, he may, for reasons to be recorded in writing, seize the accounts, registers or documents of such person produced before him and shall grant a receipt for the same, and shall retain the same for so long as may be necessary in connection with any proceedings under this Act or the rules made thereunder for prosecution. (12) The Commissioner or an officer authorised by him may cause purchase of any goods or services or both by any person authorised by him from the business premises of any taxable person, to check the issue of tax invoices or bills of supply by such taxable person, and 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. 71. Access to business premises (1) Any officer under this Act, authorised by the proper officer not below the rank of Joint Commissioner, shall have access to any place of business of a registered person to inspect books of account, documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Karol Bagh, New Delhi 110005 Provisional attachment of property under section 83 of CGST Act, 2017 It is to inform that M/S PROEX FASHION PRIVATE LIMITED, 1125, 2nd Floor, Mukherjee Nagar Delhi110009 bearing PAN AADCR8078H is a registered taxable person under CGST Act. Proceedings have been launched against the aforesaid taxable person under section 71 of the said Act to determine the tax or any other amount due from the said person. As per information available with the department, it has come to my notice that the said person has an account in your bank having account number 00124011000368. In order to protect the interests of revenue and in exercise of the powers conferred under section 83 of the Act and on approval of the competent authority, I Anand Pal Singh Assistant Commissioner of Central Tax hereby provisionally attach the aforesaid account. No debit shall be allowed to be made from the said account or any other account operated by the aforesaid person on the said PAN without the prior permission of this department. (Anand Pal Singh) Assistant Commissioner (Emphasis supplied.) 6. In the counter affidavit filed by respondent no.2, it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence or to produce documents or any other thing in any inquiry. Such inquiry is deemed to be a judicial proceeding under Penal Code, 1860. xxxx xxxx xxxx 16. The impugned order dated 22 October 2019 proceeds on the assertion that proceedings have been launched against the Petitioner under section 67 section 70 of the Act. As far as section 67, i.e. search is concerned, it is an uncontroverted position that no proceedings have been initiated against the Petitioner under section 67 of the Act. On the date of provisional attachment of the bank account, only a summons under of the Act was issued to the Petitioner. Section 70 is not mentioned in Section 83 of the Act. No proceedings were pending against the Petitioner under section 62, 63, 64, 73 and 74 of the Act. Thus the Petitioner contends that power under section 83 could not have been invoked against the Petitioner. 17. Primary defence of the Respondents is that even if section 62, 63, 64, 67, 73 and 74 mentioned in section 83 of the Act are not referable to the case of the Petitioner, since a summons is issued to the Petitioner in pursuant to the inquiry initiated against M/s. Maps Global under section 67 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Commissioner; ii) Proceeding under Section 62 or 63 or 64 or 67 or 73 or 74 should be pending; iii) Commissioner must form an opinion iv) Order should be passed to protect interest of revenue. v) It must be necessary to attach property. The Punjab and Haryana High Court, in paragraph 10 of the said decision, and a Division Bench of the Gujarat High Court, in Valerius Industries vs. Union of India, MANU/GJ/1743/2019 (paragraph 44 and 52) have also commented upon the drastic nature of an order of attachment under Section 83, albeit in the context of the subjective satisfaction to be recorded by the authority. 10. As held in the aforesaid judgements, the attachment of bank account entails serious consequences to the assessee, particularly in the case of a running concern such as the petitioner herein. The power to attach the bank account must therefore be exercised only in strict compliance with the statutory power, and cannot be extended to cover situations which are not expressly contemplated by the section. Absent the statutory precondition for exercise of the power of attachment, any order under Section 83 is wholly illegal and unsustainable. 11. In the present ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
