9911796707
TMI Blog2021 (2) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... As per the impugned order, the account has been frozen in view of Section 74 of the said CGST Act. Section 74 is reproduced herein below:- "74. Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised by reason of fraud or any wilful misstatement or suppression of facts. (1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded or where input tax credit has been wrongly availed or utilised by reason of fraud, or any wilful-misstatement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom the refund has erroneously be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer and inform the proper officer in writing of such payment. (6) The proper officer, on receipt of such information, shall not serve any notice under sub-section (1), in respect of the tax so paid 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing. 5. Learned counsel for the petitioner pointed out to sub-Section (7) and has argued that if the assertion of learned counsel for respondent No.1 is accepted then this sub-Sections would become otiose. 6. We find that sub-Section (7) clearly says that if the proper Officer comes to the conclusion that the amount voluntarily deposited by the assessee falls short of the amount actually payable, he shall proceed to issue the notice as provided under sub-Section (1). 7. Learned counsel for the petitioner has relied upon Para 5 of the judgment passed by the Single Bench of the Karnataka High Court titled as Anandbhavan Properties Pvt. Ltd. Vs. Union of India, 2020(34) G.S.T.L. 143(Kar.) which read as under:- "5. Perusal of Annexu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... request was made without prejudice to the rights of the petitioner. Consequently, this argument of the learned counsel for the respondent No.1 has to be rejected. 10. Resultantly, in the end we are left with the situation where till date no notice has been issued under sub-Section (1) of Section 74. To this effect, the learned counsel for the petitioner has relied upon the Division Bench judgment of this Court in the matter of Bindal Smelting Pvt. Ltd Vs. Addl. Dir. Gen. Directorate Gen. Of GST Intelligence, 2020 (34) G.S.T.L. 592 (P&H), wherein it was held as under:- "10. Applying the above quoted provisions of CGST Act, 2017 and taking cue from afore-cited judgments of Gujarat High Court, which has noticed consistent judicial pronounc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n our considered opinion is to attach amount lying in an account in the form of FDR or saving and it cannot be intention or purport of Section 83 to attach an account having debit balance. No purpose leaving aside securing interest of revenue is going to be achieved except closure of business which cannot be permitted unless and until running of business itself is prohibited by law. The contention of Respondent that they have power to attach bank account irrespective of nature of account cannot be countenanced......" 11. Learned counsel for respondent No.1 has not been able to cite any contrary judgment. 12. In the circumstances, this petition is allowed and impugned order attaching the bank accounts is set aside. It is, however, clarifie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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