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TMI Blog2023 (11) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner filed its objections on 19.03.2021 against provisional attachment, under rule 159(5) of CGST Rules, 2017 which were not decided by respondent no 1. 3. Petitioner approached this Court by filing CWP No. 21916-2021 and vide order dated 23.11.2021, this Court called the explanation of respondent No. 1 for not deciding the objections for more than 08 months. Respondent No. 1 was also directed to decide objections by passing a speaking order before next date of hearing. Thereafter, respondent No. 1 decided the objections filed by the petitioner, vide speaking order dated 10.01.2022 and issued DRC-23 dated 10.01.2022 to Banker of the petitioner for restoration of Bank account of the petitioner. Vide order dated 11.01.2022, the bank account of the petitioner was again provisionally attached by respondent No. 1 under Section 83 of the Act. The petitioner challenged this order by filing CWP No. 941-2022. 4. In the meantime, CWP No. 21916-2021 came up for hearing on 20.02.2023 and the petition was dismissed as having been rendered infructuous. Thereafter, when CWP No. 941-2022 came up for hearing before this Court, learned counsel for the respondent has handed over a copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is one of the statute for valid exercise of the power of attachment but such condition has not been fulfilled by the Commissioner. 10. On notice of the petition, a reply has been filed by the respondents taking a stand that investigation against M/s Dholagiri Enterprises (GSTIN: 06DMLPK8324R1Z8) was initiated on 08.01.2021 and search was conducted as per the provisions of Section 67(2) of the CGST Act, 2017 at the registered and residential premises of the petitioner and at other premises of the petitioner. Detailed investigation revealed that the petitioner was involved in 'availment as well as passing of fake ITC on the basis of goodsless invoices and the Penalty has been demanded from the petitioner vide Show Cause Notice dated 11.04.2023 under Section 122(1)(ii) and 122(1)(vii) of the CGST Act, 2017. In addition, penalty under Section 122(1)(x). (xii), (xvii) and 122 (3) of the CGST Act, 2017 has also been demanded vide the said show cause notice dated 11.04.2023. During the course of investigation, the petitioner was found to be engaged in availment as well as passing on of huge amount of fake ITC on the strength of goods-less invoices, the bank account of the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Chapter XIV. Hence, even after amendment of Section 83 (1) of the CGST Act w.e.f 01.01.2022, the power of attachment can be exercised on initiation of any proceedings under Chapter XV, which has been done in the present case. The argument of learned counsel for the petitioner that the proceedings have been initiated under Section 122 read with Section 127 does not fall under Chapter XII, XIV or XV is liable to be rejected. Reference at this stage can be made to Shiv Enterprises case supra, wherein it has been observed as under:- "4. From the notice dated 14.09.2021, it can be seen that the original writ petitioner was called upon to show cause within 14 days from the receipt of the said notice, as to why the goods in question and the conveyance used to transport such goods shall not be confiscated under the provisions of Section 130 of the Punjab GST Act, 2017 and IGST Act, 2017 and CGST Act, 2017 and why the tax, penalty and other charges payable in respect of such goods and the conveyance shall not be payable. 5. In the show cause notice, there was a specific allegation with respect to evasion of duty, which was yet to be considered by the appropriate authority on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority. 6. In view of the above and for the reasons stated above and without expressing anything on merits in favour of either parties, more particularly, against respondent-herein (original writ petitioner), on the aforesaid ground alone, we set aside the impugned judgment and order passed by the High Court to the extent quashing and setting aside the notice dated 14.09.2021, issued under Section 130 of the CGST Act and remand the matter to the appropriate authority, who issued the notice. It will be for the respondent-herein - original writ petitioner to file a reply to the said show cause notice within a period of four weeks from today. and thereafter the appropriate authority to pass an appropriate order in accordance with law and on its own merits. 7. All the contentions/defences which may be available to the respondent-original writ petitioner are kept open to be considered by the appropriate authority in accordance with law and on its own merits. 8. The present appeal is partly allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs." 15. Reference has been made to the judgment of Hon'ble the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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