9911796707
TMI Blog2024 (11) TMI 1398X X X X Extracts X X X X X X X X Extracts X X X X ..... from the date of the order made under Sub-section (1). As distinct from the provisions of Section 281B of the Income Tax Act, 1961, the provisions of Section 83 (2) of the CGST/SGST Acts do not even provide for the extension of the period of provisional attachment. Therefore, it must be held that on the plain meaning of the words used in Sub-section (2) of Section 83 of the CGST/SGST Acts, an attachment cannot extend beyond the period specified in Sub-section (2) of Section 83. It is clear that the provisions of Section 83 (2) read with the provisions of Rule 159 of the CGST Rules, 2017 indicate beyond doubt that a provisional attachment under sub-section (2) of Section 83 cannot extend beyond a period of one year from the date on which it was first made. To accept the contention of the Revenue in this case would be to do violence to the language of the statute and permit the Revenue to keep on issuing repeated orders of provisional attachment which would mean that the provisional attachment can continue for as long as the Revenue decides that it must continue. This, obviously, was not the intention of the legislature, for had the intention been different, the provisions of Sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Sixteen Thousand, Seven Hundred and Fifty-Seven only) availed by M/s SR Traders on the strength of fake invoices, as discussed above, should not be declared fake and inadmissible and recovered under sub-section (1) of Section 74 of the CGST Act, 2017, read with Section 20 of the IGST Act, 2017; 8.2 interest payable on 8.1 above, should not be demanded and recovered from them, under Section 50 of the CGST Act, 2017 read with Section 20 of the IGST Act, 2017; 8.3 for the said violation at 8.1, penalty should not be imposed upon them under Section 74 read along with Section 122 (1) (vii) of the CGST Act, 2017 and Section 20 of the IGST Act, 2017. The aforesaid show cause notice is pending adjudication. Through Ext. P2 series of proceedings dated 10.03.2023/13.03.2023, orders were issued by the Additional Director General, Directorate General of GST Intelligence, Kochi Zonal Unit under Section 83 of the CGST/SGST Acts, provisionally attaching certain properties belonging to the petitioners. Some of the attachment orders relate to the bank accounts of the Firm also. The Firm challenged the orders of provisional attachment by filing W.P.(C.) No. 12519 of 2023. This Court, by the judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hment through Ext. P2 series of orders. The petitioners are thus before this Court, challenging Ext. P6 series of orders, principally, on the ground that the 1st respondent has no jurisdiction, whatsoever, to issue such orders after the expiry of the period prescribed in Sub-section (2) of Section 83 of the CGST/SGST Acts. 2. Sri. Mayankutty Mather, the learned Senior Counsel appearing for the petitioners, on the instructions of Adv. Nikitha Susan Paulson would vehemently contend with reference to the provisions contained in Section 83 of the CGST/SGST Acts that, an order of provisional attachment cannot extend beyond the period satisfied in Sub-section (2) of Section 83 of the CGST/SGST Acts. He contends that, if the 1st respondent is permitted to pass fresh orders of provisional attachment after the period specified in Sub-section (2) of Section 83 of the CGST/SGST Acts, the same would lead to a situation where there can be no meaning in the time limit specified in Sub-section (2) of Section 83 of the CGST/SGST Acts. He submits that the language of Sub-section (2) of Section 83 of the CGST/SGST Acts does not permit any interpretation other than the interpretation that after a per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lone. Learned Senior Counsel submits that though the Calcutta High Court had conceded the power of the authorities to pass a fresh order after the expiry of the initial period prescribed in Sub-section (2) of Section 83 of the CGST/SGST Acts, the said judgment did not consider the provisions of Rule 159 of the CGST/SGST Rules or to the analogous provisions in Section 281B of the Income Tax Act, 1961, where again the time limit has been set for the period for which orders of provisional attachment would continue. It is submitted that though the provisions of Section 281B of the Income Tax Act contemplate an extension after the initial period of attachment, there is no provision in the CGST/SGST Acts which enables the extension of the period of attachment and on analysis of the wordings used in Sub-section (2) of Section 83 of the CGST/SGST Acts and the provisions of Rule 159 of the CGST/SGST Rules, 2017, it can only be held that the lawmakers did not intend that any order of provisional attachment under Section 83 of the CGST/SGST Acts would in any case extend beyond the period specified in Sub-section (2) of Section 83 of the CGST/SGST Acts. Learned Senior Counsel would also submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jarat High Court in Shrimati Priti W/o. Anil Amrutlal Gandhi v. State of Gujarat Thro Assistant Commissioner 1; 2011 SCC OnLine Guj 1869 to contend that a contention similar to the contention taken in this writ petition had been rejected by the Gujarat High Court while considering the analogous provisions in Section 45 of the Gujarat Value Added Tax Act. It is submitted that the Court had categorically held that there is nothing in the provision under consideration (in that case) which would indicate that a fresh order of attachment could not be passed after the expiry of the period prescribed in the provision in question. Learned Senior Standing Counsel further submits that though the provisions of Section 83 of the CGST/SGST Acts were extensively considered by the Supreme Court in Radha Krishnan Industries (supra), the Supreme Court did not render a finding that no fresh order could be passed after the expiry of the period specified in Sub-section (2) of Section 83 of the CGST/SGST Acts and only indicated the circumstances under which an order of provisional attachment could be made with reference to the provisions of Section 83 of the CGST/SGST Acts. It is submitted that the fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpiry of a period of one year from the date of the order made under sub-section (1). The provisions of Section 83 of the CGST/SGST Act were amended with effect from 1.1.2022 and now read as follows:- 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 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 sub-section (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 sub-section (1). I thought it necessary to refer to the unamended provisions of Section 83 considering the fact that considerable reliance was placed by the learned Senior Counsel appearing for the petitioners on the judgment of the Supreme Court in Radha Krishnan Industries (supra) which dealt with the provisions of Section 83 as it stood ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Tax Act, 1961, the provisions of Section 83 (2) of the CGST/SGST Acts do not even provide for the extension of the period of provisional attachment. Therefore, it must be held that on the plain meaning of the words used in Sub-section (2) of Section 83 of the CGST/SGST Acts, an attachment cannot extend beyond the period specified in Sub-section (2) of Section 83. In paragraph 42 of Radha Krishnan Industries (supra) it was observed:- 42. Under sub-section (2) of Section 83, a provisional attachment ceases to have effect upon the expiry of a period of one year of the order being passed under sub-section (1) The contention of the learned Senior Standing Counsel that after the amendment the order can continue even after final orders are passed has no bearing on the question as to whether such an order can continue beyond the period specified in Section 83 (2). In other words, even if this contention is to be accepted, the order will cease to have effect after the period specified in Section 83 (2). 8. The learned Senior Counsel appearing for the petitioners is also right in contending that the provisions of Rule 159 of the CGST Rules, 2017 also indicate that the provisional attachme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the State Exchequer. However, it is not the duty of the Court to change the plain meaning of the statute and concede to the Revenue a right or authority which was never in the contemplation of the Legislature. Policy making is not the duty of the Court and the Court must interpret the law as it finds it. In C.A. Abraham v. ITO, (1961) 41 ITR 425, the Supreme Court held:- 6. The Legislature has expressly enacted that the provisions of Chapter IV shall apply to the assessment of a business carried on by a firm even after discontinuance of its business, and if the process of assessment includes taking steps for imposing penalties, the plea that the Legislature has inadvertently left a lacuna in the Act stands refuted. It is implicit in the contention of the appellant that it is open to the partners of a firm guilty of conduct exposing them to penalty under Section 28 to evade penalty by the simple expedient of discontinuing the firm. This plea may be accepted only if the court is compelled, in view of unambiguous language, to hold that such was the intention of the Legislature. Here the language used does not even tend to such an interpretation. In interpreting a fiscal statute, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue) is not merely to make bad law but to run the risk of subverting the rule of law itself. Disagreeable as it may seem that some taxpayers should escape what might appear to be their fair share of the general burden of national expenditure, it would be far more disagreeable to substitute the rule of caprice for that of law. The most famous warning in the history of our fiscal law is constituted by Rex v. Hampden, Ship-Money Case (1637) 3 St.Tr. 826 . It could be strongly argued that it was contrary to fiscal equity that the financial burden of providing warships (or their money equivalent) for the defence of the whole realm should fall exclusively on the inhabitants of maritime towns and districts, to the exoneration of inland citizens: yet such, it seems, was the law of the land; and the judges who appear to have stretched that law have not escaped the censure of history. So I think that counsel for the taxpayers was justified, when frankly admitting that your Lordships were concerned with unmeritorious tax avoidance schemes, in drawing attention to Inland Revenue Commissioners v. Duke of Westminster [1936] A.C. 1. There Lord Tomlin (p. 19) cited Coke (4 Inst. 41), on the dange ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
