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TMI Blog2023 (12) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... lity and validity of the impugned order of provisional attachment under Section 83 of the Act on the ground of non pendency or initiation of any proceeding against the petitioner is concerned, on reading conjointly Section 1(2), Section 6(1), Section 83, Section 122(1) and Section 122 (1A), Clause (i), (ii), (vii) and (ix) thereunder and judgments, relevant circulars and notification and taking into consideration materials found against the petitioners during investigation, CGST Guwahati authority s action of attaching the bank account of the petitioner provisionally and the impugned order to this effect is very much legal, valid and within jurisdiction and is not liable to be interfered by this writ Court. This Writ Petition is dismissed. - HON BLE MR. JUSTICE MD. NIZAMUDDIN For the Petitioners :- Mr. A. Majumder, Sr. Adv. Mr. D.N. Sharma, Adv. Mr. Saurabh Bagaria, Adv. Mr. Sailendra Jain, Adv. Mr. Saumya Kejriwal, Adv. For the Respondent No. 6 :- Mr. Amitava Mitra, Adv. Ms. Antara Choudhury, Adv. For the CGST authorities :- Mr. K.K. Maiti, Adv. Mr. Tapan Bhanja, Adv. For the State :- Mr. Anirban Ray, Ld. Govt. Pleader Mr. Md. T.M. Siddiqui, Adv. Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kolkata and is having a Bank account maintained in Kolkata with HDFC Bank at 11, Dr. U.N. Brahmachari Street Branch, Kolkata. 4. Petitioners have challenged the impugned action and order of provisional attachment under Section 83 of the CGST Act mainly on the ground that the condition precedent to initiate proceeding under Chapter XII, XIV and XV of the GST Act is absent in the present case and that no notice/proceeding was ever initiated and/or is pending under the said chapters in term of Section 83 (1) of CGST Act at the time of taking such coercive action of freezing of bank account of Petitioner No. 1 and submits that the power to order provisional attachment under Section 83 of the Act can only be exercised sparingly and in exceptional circumstances and cannot be used as a tool for witch-hunt expedition and on the basis of presumptions and assumptions and conjectures and surmises. 5. Petitioner submits that the formation of opinion clearly indicates that the impugned order of provisional attachment was taken without there being any proceeding pending under Chapters- XII, XIV and XV of the Act. The impugned provisional order of attachment in Form GST DRC 22 is non est i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indication whatsoever that the writ petitioner has been treated as persons specified in Section 122(1A) of the Act. 11. Petitioner submits that the writ petitioner being RTP within the jurisdiction of Kolkata Commissionerate cannot be subjected to an order of provisional attachment, merely because one of its partners is under investigation in connection with the affairs of other RTPs or other entities and no way connected to writ petitioner firm. 12. Petitioner submits that the Additional Director General, Guwahati Zonal Unit does not have the territorial jurisdiction to issue an order of provisional attachment against the petitioner who is exclusively RTP under the Kolkata Commissionerate and not under any other Commissionerate and in fact, the Alert Notice relied upon and annexed to the affidavit-in-opposition clearly does not authorise Guwahati Zonal Unit to issue order of provisional attachment order against the petitioner. The petitioner features in the List of 1494 alleged availed unit pertaining to the other jurisdiction in Annexure C to the Alert Notice. The Alert Notice is addressed to all the authorities under CGST authorities and DGGI authorities in India. Upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion clearly indicates that the provisional attachment of Bank Account in question was taken without there being any proceedings pending under Chapter XII, XIV and XV of the said Act. (iv) Merely because one of the partners is under investigation thereby the petitioner Firm cannot be subjected to investigation. (v) In terms of Hon ble Supreme Court s order in the decision of Radha Krishnan the condition must be fulfilled for issuance of attachment of Bank Account. (vi) Provisional attachment is non est in the eye of law as it requires to issue only under Form GST DRC-22. 17. Petitioner in support of its contention relies on a decision of The Hon ble Delhi High Court in the case of Sidhivinayak Chemtech Vs- The Principal Commissioner, CGST: 2023 SCC Online Del 2913. 18. Petitioner submits that writ petition before this Hon ble Court under Article 226 of the Constitution of India challenging the impugned order of provisional attachment, is maintainable, by relying on the Hon ble Supreme Court s judgment in the case of Radha Krishnan Industries Vs- State of Himachal Pradesh Ors. (2021) 6 SCC 771 and submitting that the Hon ble Supreme Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have availed ineligible ITC amounting to Rs. 57,45,619/- on the strength of invoices without actual receipt of any goods from the fake/non-existent firms. The petitioners were found to have issued ineligible ITC of Rs. 1,51,93,800/- without any actual supply of goods. Therefore the total amount involved in both availing and passing on fake input credit is Rs. 2,09,39,419/-. 24. Respondents submit that the amount of Rs. 57,45,619/- was passed on two non-existent firms namely M/s. Majestum Sales Pvt. Ltd. and M/s. Nakul Enterprise which were operated and managed by Shri Anand Saraf who admitted such fact and was arrested. 25. Respondents submit that the fraudulent Input Tax Credit amounting to Rs. 1,51,93,800/- was passed on to M/s. A.B. Infra Pvt. Ltd. through 78 invoices without concomitant supply of goods by the petitioner. The said fact has been established through RFID based E-way Bills analytics and which has also been admitted by M/s. BAC Infra Pvt. Ltd. during the course of investigation. The said ineligible availment of fake ITC by the petitioners was circulated through alert notice dated 07.09.2022. 26. Respondents submit that the officers of DGGI having been Pan I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach the bank account of the petitioner for the interest of the revenue. The respondent authorities are also entitled to attach the bank account of the petitioner in terms of Section 122 (1A) of the CGST Act which is covered under Section 83 of the said Act. 30. Respondents submit that in terms of Notification dated 01.07.20017 as well as guidelines dated 07.05.2018 and clarification dated 22.06.2020 which clearly provides the jurisdiction upon the respondent authorities to take action and as such attachment of the bank account is legal and valid and within jurisdiction. 31. Respondents submit that the Form GST DRC-22 has been issued in accordance with law and as per proforma prescribed in law. In terms of the said prescribed proforma the said attachment order has been issued which will be evident from the attachment order dated 22.03.2023 which is as per first paragraph of the said proforma of Form GST DRC-22. 32. Respondents submit that in term of Rule 159(5) of CGST Rules, the petitioners have not filed any objection for such attachment dated 22.03.2023 and as such without availing the said remedy the petitioners have no right to challenge the attachment order by filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce in construing the jurisdiction of the Commissioner who has been defined under Section 2 (24) of the CGST Act, for the purpose of Section 83 (2) of the Act. Reading of the provision under Section 83(1) with Section 122 (1A) of the Act make it manifest that the Commissioner for the purposes of exercising power under Section 83 read with Section 122 (1A) of the CGST Act would have a power to take action against any person as Section 122 (1A) which mandates that even if such a person is outside his jurisdiction. Petitioner submits that there cannot be any other reading of the legislative scheme flowing to a conjoint reading of Section 83(2) read with Section 122 (1A) and Section 2 (24) of the Act, moreover, a contrary reading of the said provisions would defeat the legislative intention. 36. Respondents further submit that the Hon ble Delhi High Court in the case of Indo-International Tobacco Ltd. reported in [2022 (67) GSTL 403 (Del.)] has held that Ahmadabad Zonal Unit having Pan India jurisdiction as Central Tax Officer, not prohibited in view of common thread allegedly found in this investigation. 37. Respondent rely on a decision of the Hon ble Orissa High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers appointed under the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act are authorised to be the proper offices for the purposes of this Act, subject to such conditions as the Government shall, on the recommendations of the Council, by notification, specify. Section 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 revenue is of the opinion that for the purpose of protecting the interest of the Government revenue it is necessary so to do, he may, by order in writing, attach provisionally, any property, including bank account, belonging to the taxable person or any person specified in subsection (1A) of Section 122, in such manner as may be prescribed. (2) Every such provisional attachment shall cease to have effect after the expiry of a period of one year from the date of the order made under subsection (1). Section 122. Penalty for certain offences (1) Where a taxable person who (i) supplies any goods or services or both without issue of any invoice or issues an incorrect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground of lack of territorial jurisdiction is concerned, is not sustainable since cause of action is a bundle of fact and in the facts and circumstances of the present case I am of the considered view that part of cause of action arose within the territorial jurisdiction of this Court since petitioner s bank account in Kolkata was attached though may it be by an authority in Guwahati and in view of the fact that petitioner is a registered person in Kolkata and as such writ petition before this Court against the impugned order passed by the authority at Guwahati is maintainable. 42. So far as challenge by the petitioner the legality and validity of the impugned order of provisional attachment under Section 83 of the Act on the ground of non pendency or initiation of any proceeding against the petitioner is concerned I am of the considered view on reading conjointly Section 1(2), Section 6(1), Section 83, Section 122(1) and Section 122 (1A), Clause (i), (ii), (vii) and (ix) thereunder and judgments referred above, relevant circulars and notification and taking into consideration materials found against the petitioners during investigation, CGST Guwahati authority s action of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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