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TMI Blog2022 (12) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... ST Intelligence (DGGI) in a search conducted on 28th August, 2019 vide panchnama dated 28th August, 2019. 3. The brief background of this case is that the DGGI is stated to have received a communication from the Chief Manager, Allahabad Bank, Jawala Heri Market, Paschim Vihar informing the DGGI Headquarters of certain high level transactions related to refund of GST credited to four bank accounts. The said accounts were newly opened and the refund amount was being withdrawn immediately by the bank account holders. This communication was received in February, 2019. It was observed that the addresses of all the firms were the same. Owing to the action taken at that time, the bank accounts of M/s Monal Enterprises, Aircon Overseas, Micra Over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the search and seizure were conducted at B-773, Sushant Lok-1, Gurugram, Haryana in which computer, laptops, documents and other documents were seized on 28th August, 2019, the release of which is sought for in this petition. The relief sought in this petition is as under: "(i) To issue a writ of mandamus order to the respondent thereby directing the respondents to release the computer, laptop, documents and things seized on 28.08.2019 vide panchnama dated 28.08.2019 unconditionally. (ii) To pass such other or further order/s which this Hon'ble Court may deem fit and proper." 6. The submission of Mr. Akhil Krishnan Maggu, ld. Counsel for the Petitioner is that he had represented the four firms/ individuals and had sought defreezin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Act, the same can be retained by the officer. He, further, submits that under Section 74 (10) of the CGST Act, 2017, when a determination of tax is to be made in respect of Input Tax Credit which is wrongly availed of by reason of fraud or wilful misstatement or suppression to evade tax, the proper officer has to pass an order within a period of five years. This is in contrast with determination of tax under Section 73(10), where no fraud or wilful misstatement or suppression is involved, wherein the period of three years is provided for passing the order. 8. He submits that, in the present case, Section 67(2) read with Section 67(3), Section 74(2) and Section 74(10) would show that the period as prescribed in these provisions have n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner, either pursuant to an inspection carried out under sub-section (1) or otherwise, has reasons to believe that any goods liable to confiscation or any documents or books or things, which in his opinion shall be useful for or relevant to any proceedings under this Act, are secreted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 been made, or who has wrongly availed or utilised input tax credit, requiring him to show cause as to why he should not pay the amount specified in the notice along with interest payable thereon und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the CGST Act, 2017 deals with wrong availment of Input Tax Credit on grounds of egregious nature such as fraud, wilful misstatement or suppression of facts. The present case would be governed by Section 74 owing to the nature of the seizure made, the facts revealed and the investigation currently being conducted. The proper officer under Section 74(2) has to issue a show-cause notice as per Section 74, at least six months prior to the time limit specified in Sub-section 74(10) for issuance of the order. Under sub-section 74(10) the proper officer has five years from the date of erroneous refund to pass the order in such cases. A conjoint reading of Section 74(2) and Section 74(10) would clearly show that the maximum period for issuance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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