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TMI Blog2025 (2) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... ry so to do for the purpose of protecting the interest of the revenue. The impugned order proceeds on the basis that the GST Council has also recommended amendment to the words "plant and machinery" instead of "plant or machinery" in Section 17 (5) (d), in light of the Judgment passed by the Hon'ble Supreme Court in "Safari Retreats [2024 (10) TMI 286 - SUPREME COURT]". In one sweeping line, the Joint Commissioner of State Tax has come to the conclusion that in order to protect the interest of the revenue, he is exercising powers under Section 83. What was the material available to him to form an opinion that the assessee (the Petitioner) is likely is to defeat the demand, if any, is nowhere mentioned and is nowhere on record. Conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r parent company is one of the largest FDI investors in the State of Maharashtra. 3. We have heard Mr. Sridharan for the Petitioner and also perused the impugned order dated 28th January, 2025. It is a short order and hence the same is reproduced hereunder:- "1. It is inform that proceedings have been initiated against the aforesaid taxable person under section 67 of the said Act to determine the tax or any other amount due from the said person. 2. As per information available with the department, it has come to my notice that the taxpayer is engaged in business of development real estate property on his own account. 3. It appears that the taxpayer has wrongly availed input tax credit which is ineligible as per section 17(5) (d) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal provision under the GST Act for re-availment of ITC in the event of his payment/reversal under protest. 12. In the meanwhile, Hon'ble Supreme Court, in the matter of Safari Retreats, has delivered judgment citing ratio of functionality test for each and every Input credit. And at the same time, the GST Council has also recommended amendment to the words "plant and machinery" instead of "plant or machinery" in section 17(5)(d) in the light of above judgment. 13. In the light of the above development, the taxpayer is not at all entitled to avail ITC. 14. However, at the time of visit, taxpayer had availed ITC of 47 cr. which was pointed out by this office that it is wrong availment. Even then taxpayer has continued availing ITC i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a provisional attachment the Commissioner must form an opinion on the basis of tangible material that the assessee is likely to defeat the demand, if any, and that therefore, it is necessary so to do for the purpose of protecting the interest of the revenue. This is clearly laid down by the Hon'ble Supreme Court in Radha Krishan Industries (supra). 5. All this material is conspicuously absent in the present case. In fact, the impugned order proceeds on the basis that the GST Council has also recommended amendment to the words "plant and machinery" instead of "plant or machinery" in Section 17 (5) (d), in light of the Judgment passed by the Hon'ble Supreme Court in "Safari Retreats". In one sweeping line, the Joint Commissioner of State T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt can be unfrozen immediately, out of abundant caution, we hereby set aside the impugned order dated 28th January, 2025 and direct that the 4th Respondent shall allow the Petitioner to operate the account forthwith. 9. Since the dispute in the present case is regarding the utilization of input tax credit, Mr. Sridharan, on instructions, has stated that if they are going to utilize the input tax credit, they will intimate the department three months in advance in that regard. The said statement is accepted. 10. The Writ Petition is accordingly disposed of. No order as to costs. 11. This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned will act on production by fax or email of a digi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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