9911796707
TMI Blog2023 (7) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... eased to expire by operation of sub-section (2) of Section 83 - there are no fresh order having being passed by the Respondents to attach the bank account on 19th April 2023. In any view of the matter, mere notings in the file of the concerned Officer cannot constitute an order without a formal order as the law may mandate being passed and most importantly such order being communicated to the affected person, whose bank account is attached. The Respondents have not shown that such order was passed and served on the Petitioner much less prior to the provisional attachment order ceasing to operate by virtue of the provisions of Section 83(2) and/or the communication dated on 19th April 2023. Thus, it is held that the communication dated 21st April 2022 (Exhibit B to the petition) provisionally attaching the Petitioner s bank account is rendered illegal and invalid by virtue of the provisions of Section 83(2) of the CGST Act. The extension of the provisional attachment by communication dated 19th April 2023 (Exhibit G-1 to the petition) is hereby quashed and set aside. Parties, including the bank, to act on authenticated copy of this order - writ petition stands allowed. Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Petitioner to provisional attachment were disposed of under Rule 159(5) of the CGST Rules by the Respondents. 2. We have heard learned Counsel for the Petitioner and learned Counsel for the Respondents. 3. At the outset, the Respondents have raised a preliminary ground that the order disposing off objections under Rule 159(5) of CGST Rules attaching the bank account provisionally is an appealable order and, therefore, this Court should not entertain the petition. The Respondents have relied on Section 107 of the Act in support of the contention that the same is an appealable order. On the other hand, the Petitioner relied upon the decision of the Supreme Court in the case of Radha Krishan Industries vs. State of Himachal Pradesh (2021) 6 Supreme Court Cases 771., wherein an identical submission was made before the Supreme Court and the Supreme Court in paragraphs 63 to 66 have held that order disposing the objections to provisional attachment of bank account is not an appealable order and the only remedy that is available is in the form of the invocation of the writ jurisdiction under Article 226 of the Constitution of India. The Respondents cannot take a position cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner s bank account, hence, the provisional attachment of the Petitioner s account as informed in the communication dated 19th April 2023, is valid. Learned Counsel for the Respondents has relied on the decision of the Gujarat High Court in the case of Shrimati Priti Amrutlal Gandhi vs. State of Gujarat 2011 SCC OnLine Guj 1869., in support of her contention that since the fresh attachment order is passed, the same is valid. 7. We have perused the said order sheet referred to by the Respondents. The order sheet records the date of the noting as 21st April 2022, wherein after narrating the facts it is stated that same is submitted for necessary orders under Section 83 of the MGST Act. It further states that we may consider taking action of provisional attachment under Section 83 in respect of this bank account and, thereafter, the Joint Commissioner (Investigation) has opined that this bank account is required to be attached. The said order sheet is dated 21st April 2022 and formed the basis for issue of first provisional attachment on 21st April 2022 and which, as observed above, has ceased to expire by operation of sub-section (2) of Section 83. 8. Thus, we do not fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount is rendered illegal and invalid by virtue of the provisions of Section 83(2) of the CGST Act. The extension of the provisional attachment by communication dated 19th April 2023 (Exhibit G-1 to the petition) is hereby quashed and set aside. Parties, including the bank, to act on authenticated copy of this order. Writ Petition No. 3905 of 2023 This petition challenges the provisional attachment communication dated 21st April 2022 and 19th April 2023. Learned Counsel for the Petitioner submitted that the Respondents do not have the jurisdiction to pass the provisional attachment order, since the Petitioner is in Chennai and the bank account, in respect of which the provisional attachment order is communicated, is also in Chennai. Therefore, it is submitted that the Respondents do not have the jurisdiction to pass the impugned order. 2. Section 83 of the GST Act, 2017 is reproduced hereunder: 83. Provisional attachment to protect revenue in certain cases. - (1) Where, after the initiation of any proceeding under Chapter XII, Chapter XIV or Chapter XV, the Commissioner is of the opinion that for the purpose of protecting the interest of the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State in which the transaction is executed and the State in which he is located would also not take any action since the transaction has not happened in the State where he is located. In our view, such an interpretation cannot be accepted. Furthermore, Section 122(1-A), refers to any person , who has retained benefit of a transaction and in whose presence transaction is conducted. It does not contemplate of a situation where the person should be located within the State in which the transaction is carried out. Therefore, in our view, the Respondents have the jurisdiction to resort to the provisions of Section 83 of the Act with respect to the Petitioner located in Chennai. 6. In so far as the jurisdiction of the Commissioner to exercise powers under Section 83 is concerned, we may observe that the provisions of Section 83, which are to be read with Section 122(1-A), would be required to be read in the context of the legislation itself namely the CGST Act. As Section 1(2) would mandate, the CGST Act is operational throughout the country. This would have relevance in construing the jurisdiction of the Commissioner who has been defined under Section 2(24) of the CGST Act, for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
