Home Case Index All Cases GST GST + HC GST - 2022 (2) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (2) TMI 997 - HC - GSTProvisional attachment of multiple properties - factory premises - plant and machinery - bank accounts including the fixed deposits - whether the respondent No.3 could have provisionally attached the property owned by Shri Niraj Jaydev Arya (one of the partners of the LLP) in exercise of power under Section 83 of the Act, 2017? - Applicability of Section 90 of GST Act - HELD THAT:- The respondent No.3, having realized that it is only the property belonging to a taxable person that can be provisionally attached under Section 83 of the Act and the partner of an LLP not being a taxable person in the case on hand, thought fit to take the aid of Section 90 and Section 137 resply of the Act for the purpose of provisionally attaching a property owned by the partner of the LLP. Sub-section (84) of Section 2 of the Act, 2017 defines the term “person” to include an individual, a Hindu Undivided Family, a company, a firm, a limited liability partnership, etc. Therefore, the Act recognizes a firm as a dealer and as a person. The legislature having treated an LLP as a taxable entity, distinct from the individual partners constituting it, it was not open for the respondent No.3 to provisionally attach the immovable property owned by a partner of the firm - This Court is of the view that the respondent No.3 was wholly unjustified in provisionally attaching a personal property owned by a partner of the firm under Section 83 of the Act, 2017. Whether the respondent No.3 was justified in provisionally attaching the stock lying at the factory premises and the attachment of sundry debtors? - HELD THAT:- The authority should ensure that the attachment does not hamper the normal activities of the taxable person. It has been clarified that the raw materials and input required for the production or finished goods should not normally be attached by the department - In the case on hand, it is not approved that the provisional attachment of the goods, stock and receivables, more particularly, when the entire stock and receivables have been pledged and a floating charge has been created in favour of the Kalupur Commercial Bank Limited for the purpose of availing the cash credit facility with the provisional attachment of the goods, stock and receivables the entire business will come to a standstill. The Form GST DRC – 22 for attachment of the stock lying at the factory premises dated 25th November 2021, the Form GST DRC – 22 for attachment of the sundry debtors (M/s. Utkarsh Bars Private Limited) dated 26th November 2021 and the GST DRC – 22 for attachment of the immovable property of Shri Niraj Jaydev Arya (one of the partners of the firm) dated 27th November 2021 are hereby quashed and set aside - this writ application succeeds in part.
|