9911796707
TMI Blog2022 (6) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... r.Nithyaesh Nataraj For the Respondent : Mr.V.Sundareswaran, Senior Standing Counsel COMMON ORDER In these writ petitions, the petitioner has challenged the orders of attachment of bank accounts passed by the respondent/Revenue invoking Section 83 of the Central Goods and Service Tax Act, 2017 [in short, the Act ]. 2. Five different bank accounts of the petitioner have been attached by these impugned orders, which have been challenged on the prime ground that no specific reason based on the tangible material available with the Revenue has been stated to invoke Section 83 of the Act except to state that in order protect the interest of the Revenue, the power conferred under Section 83 of the Act was invoked. 3. Whether such kind of cryptic order in one line stating that in order to protect the interest of the Revenue , can be passed or not have been considered by this Court in the case of M/s.Sree Meenashi Industries Vs. The Additional Chief Secretary Ors. [W.P.Nos.3079 3083 of 2022] 4. Relying upon the said case, wherein the order was passed on 16.02.2022, Mr.Nithyaesh Nataraj, learned counsel appearing for the petitioner would submit that, the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty under Section 83 It is to inform that M/s.KPN TRAVELS INDIA LTD . Having principal of business at No.23 B, Rajaji Street, Swarnapuri, Salem, TN 636 004 bearing GST registration No.as 33AABCK2751L1Zl, PAN AABCK2751L is a registered taxable person under section 647 of the said Act to determine the tax or any other amount due from the said entry and its Directors. As per information available with the department, it has come to my notice that the said entity and its Directors have accounts in your bank having account numbers: i. 611905040880 ii. 611905039784 In order to protect the interests of Revenue and in exercise of the powers conferred under Section 83 of the Act, I, Mayank Kumar (Principal Additional Director General), hereby provisionally attach the aforesaid account/property. No debit shall be allowed to be made from the said account of any other account operated by the aforesaid entry or its directors on the same PAN without the prior permission of this department. Sd/- (MAYANK KUMAR) (PRINCIPAL ADDITIONAL DIRECTOR GENERAL) (Emphasis supplied) Similar orders have been passed in respect of other Bank acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a delegate of the Commissioner in pursuance of the delegation effected under Section 5(3) and an appeal against the order of provisional attachment was not available under Section 107 (1); (ii) The writ petition before the High Court under Article 226 of the Constitution challenging the order of provisional attachment was maintainable; (iii) The High Court has erred in dismissing the writ petition on the ground that it was not maintainable; (iv) The power to order a provisional attachment of the property of the taxable person including a bank account is draconian in nature and the conditions which are prescribed by the statute for a valid exercise of the power must be strictly fulfilled; (v) The exercise of the power for ordering a provisional attachment must be preceded by the formation of an opinion by the Commissioner that it is necessary so to do for the purpose of protecting the interest of the government revenue. Before ordering a provisional attachment the Commissioner must form an opinion on the basis of tangible material that the assessee is likely to defeat the demand, if any, and that therefore, it is necessary so to do for the purpose of protecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power for ordering a provisional tax attachment must be preceded by the formation of an opinion by the Commissioner that it is necessary so to do for the purpose of protecting the interest of the Government Revenue. Before ordering a provisional attachment, the Commissioner must form an opinion on the basis of tangible material, that the assessee is likely to defeat the demand, if any, and that therefore it is necessary so to do for the purpose of protecting the interest of the Government Revenue. In clause (vii), the Court says that the formation of an opinion of the Commissioner under Section 83(1) must be based on the tangible material, bearing on the necessity of ordering a provisional attachment for the purpose of protecting the interest of the Government Revenue. In clause (x), the Court says that, the Commissioner is duty to bound to deal with the objection to the attachment by passing a reasoned order, which must be communicated to the taxable person, whose property is attached. 29. If we apply the said 4 clauses in the facts of the case, certainly this Court without hesitation, can come to a conclusion that, the said criterion fixed by the Hon'ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs if not exhaustively but atleast to the limited extent, must have been indicated in the order itself, so that the assessee can have a prima facie satisfaction that atleast the provision of the Act has not been violated as interpreted by the Hon'ble Supreme Court. Therefore, in the present case, this Court has no hesitation to hold that, the first respondent has not followed the mandatory guidelines issued by the Hon'ble Supreme Court in the said judgment in Radhakrishnan Case (cited supra) followed by orders passed by the writ court as referred to above while passing order under Section 83 dated 20.12.2021, making a provisional attachment of the Bank Account of the petitioners in these cases. 13. The principle enumerated in the judgment in Radhakrishnan Case (cited supra) by the Hon'ble Supreme Court certainly or squarely would be made applicable in the present set of facts of the case also. 14. The findings given in para 72(iv), (v), (vii), (x) are more relevant for the facts of the present case, this has been specifically dealt with in the order of M/s.Sree Meenashi Industries case (cited supra) at paragraph 28 to 35, which are quoted herein above. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
