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TMI Blog2021 (5) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... ring services in her capacity as a mentor/advisor to Milkfood Ltd. Therefore, even if we assume, for the moment, that, since investigations are on against the taxable person, and therefore, proceedings are pending under Section 67 of the Act, there is nothing placed on record to show that there was material available with the respondent, linking the petitioner to purported fake invoices. In other words, in the absence of such material, the impugned action concerning provisional attachment of the petitioner s bank accounts, which is otherwise a draconian step, was unsustainable. The impugned provisional attachment orders dated 07.12.2020. are quashed - Petition allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Act, 2017 (in short 'the Act'), against Milkfood Ltd. 2.3. The respondent claims that, the statement of the persons, who controlled entities, which enabled Milkfood Ltd. to claim ITC, were recorded in the course of the investigation. It is in this connection, the respondent claims, that "the voluntary statement" of the petitioner was recorded on 03.12.2020. 2.4. The petitioner, as per the respondent, in her statement made to the concerned officer, inter alia, admitted to the fact that she had acted as a director of the company, i.e., Milkfood Ltd., between 2006 and 2008, and since then, she has been working in the company in the capacity of a mentor/advisor. 2.5. Furthermore, the petitioner is also said to have stated that, it is in h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 85 crores, based on fake invoices. The respondent had arrested persons, who controlled the entities which furnished fake invoices to Milkfood Ltd. Coercive proceedings were also intended to be triggered against the directors/employees of Milkfood Ltd. (iv) The persons, connected to the suppliers and the directors/employees of Milkfood Ltd., had approached the concerned courts for grant of bail. In those proceedings, ₹ 10 crores was deposited with the respondent, as the condition of bail. In addition, thereto, ₹ 6 crores was voluntarily deposited by Milkfood Ltd. with the respondent. In all, out of an approximate amount of ₹ 85 crores, ₹ 16 crores stands deposited with the respondent. (v) The judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uarely apply to the instant case. In this context, Mr. Sethi relies, in particular, on paragraphs 41 and 72(iv) & (v) of the judgement rendered in Radha Krishan Industries Case. Analysis and Reasons: - 5. We have heard the learned counsel for the parties and perused the record. 5.1. According to us, the submission advanced by Mr. Singh, that the instant petition. under Article 226 of the Constitution, should not be entertained as recourse to an alternate remedy was taken by the petitioner, does not impress us, since the exercise of power under Section 83 of the Act, to begin with, was without jurisdiction. The fact that an alternate remedy is available to a litigant is a self-imposed limitation on the Court; something which did not deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not appealable. 5.3. Subsection 1 of Section 83 of the Act2 in no uncertain terms states that provisional attachment can be ordered only qua property, including bank account, belonging to the taxable person. Furthermore, the definition of the 'taxable person', as set out in Section 2(107) of the Act3, provides that only that person can be a taxable person, who is registered or liable to be registered as per the Act. It is not even the case of the respondent that. the petitioner is either registered or was liable to be registered. in terms of the provisions of Section 2(107) of the Act. Therefore, according to us, the proceedings must fail on this score alone. 5.4. As far as the other submissions are concerned, as to whether or not it co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was material available with the respondent, linking the petitioner to purported fake invoices. In other words, in the absence of such material, the impugned action concerning provisional attachment of the petitioner's bank accounts, which is otherwise a "draconian" step, was unsustainable. In the zeal to protect the interest of the revenue, the respondent cannot attach any and every property, including bank accounts of persons, other than the taxable person. Conclusion: - 6. Accordingly, for the forgoing reasons, we are inclined to allow the writ petition. It is ordered accordingly. The impugned provisional attachment orders dated 07.12.2020. are quashed. The respondent will communicate the order passed today to the concerned Banks. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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