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TMI Blog2021 (8) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... othe her with the power to order provisional attachment of a bank account under Section 83 read with Rule 159(1). It is also well settled that where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. To empower a Commissioner to order provisional attachment on account of presence of vitiating circumstances as the one under consideration before the respondent no.3, the statute itself ought to have provided so and the power to attach property, which is of a drastic nature, ought not to have been exercised on facts and in the circumstances. As a matter of fact, no proceedings under Sections 62 or 63 or 64 or 67 or 73 or 74 of the CGST Act are pending; hence, the respondent no.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the CGST Act , hereafter) read with Rule 159(1) of the CGST Rules. 2. The ground on which Mr. Kadam, learned advocate for the petitioner, mounts a challenge to the impugned order is that no proceedings are pending against the petitioner under Sections 62 or 63 or 64 or 67 or 73 or 74 of the CGST Act and, therefore, the jurisdictional fact for invocation of the power conferred by Section 83 of the CGST Act read with Rule 159(1) of the CGST Rules did not exist; hence, the order of provisional attachment, passed under Section 83 read with Rule 159(1), together with the order declining to lift the provisional attachment, passed under Rule 159(5), are entirely without jurisdiction. In support of his contention, Mr. Kadam has placed relianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no.3 was justified in spurning the request of the petitioner for lifting of the order of provisional attachment. 4. During the course of his arguments, Mr. Mishra has referred to a Bench decision of Gujarat High Court in Kushal Ltd. v. Union of India, reported in 2020(34) G.S.T.L. 203 (Guj.). Referring to paragraph 14 of such decision, it is pointed out by him to the Court that the Gujarat High Court in similar circumstances had held that in the absence of proceedings pending under sections 62 or 63 or 64 or 67 or 73 or 74 of the CGST Act, the revenue would not be authorized to provisionally attach the property including a bank account of the taxable person and, therefore, such action would not be in consonance with the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court, by its decision in M/s. Radha Krishan Industries (supra), has settled the issue of power to order provisional attachment to the effect that unless proceedings are pending against a taxable person under any of the provisions referred to in Section 83 of the CGST Act, no order of provisional attachment could be made and if any such order is made, the same would be ultra vires Section 83 of the CGST Act. It matters little at this stage that such statement of law was not made by the Supreme Court while deciding SLP (C) No.10070 of 2020. We are further of the view, having read the decision in M/s. Radha Krishan Industries (supra), that such decision, in effect, approves the view taken by the Gujarat High Court in Kushal Ltd. (supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondent no.3 that a fraud has been practiced, by itself and without there being any provision in the relevant statute conferring power which could be invoked for such purpose, was not sufficient ground to clothe her with the power to order provisional attachment of a bank account under Section 83 read with Rule 159(1). It is also well settled that where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. [see: Shri Krishnan v. Kurukshetra University, reported in AIR 1976 SC 376]. It is not the case of the Commissioner that the alleged fraudulent acts could not have been detected by exercise of due diligence. In the absence thereof, the inference to be drawn is that due ..... X X X X Extracts X X X X X X X X Extracts X X X X
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