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2021 (9) TMI 821 - HC - GSTLefting of Provisional attachment of bank accounts - the period of one year would come to an end on 21.09.2021 - no proceedings have been initiated under Section 74 of CGST Act as against the petitioner till date. - Section 83 of CGST Act - issuance of bogus/fake invoices without supply of goods - availment of irregular ITC - HELD THAT:- It must be noted that the exercise of right under Rule 159(5) of CGST Rules presupposes the communication of provisional order of attachment. The fact that the petitioner came to know of the said provisional attachment order from his bankers would be of no relevance vis-à-vis in the absence of demonstration by the respondent Authority with legally acceptable material to communicate such order, the contention taken that the representation to seek the relief as provided under Rule 159(5) of CGST Rules is belated, cannot be accepted There was an obligation for the respondent Authority to have considered the representation of the petitioner under Rule 159(5) of the CGST Rules. - However, as the period of one year would come to an end on 21.09.2021, it would be travesty of justice, if the matter is remanded back keeping the option open for the respondent Authority to pass orders on the representation of the petitioner, which theoretically would entitle the respondent, if circumstances are so made out to reject lifting of such attachment. Admittedly, no proceedings have been initiated under Section 74 of CGST Act as against the petitioner till date. What must also be noticed is that though the statement of objections of the respondent Authority seeks to make out a case that the proceedings under Section 74 of CGST Act are sought to be instituted and in the context of which the provisional attachment under Section 83 of CGST Act is resorted to, the impending proceedings under Section 74 of the CGST Act cannot be a ground to exercise power under Section 83 for the provisional attachment. If the only ground made out in the statement objections and the very order of attachment at Annexure-A is the proceedings under Section 74 of the CGST Act, even if there are other proceedings that may be considered to be pending against the petitioner as long as the proceedings under Section 74 are not initiated by issuing a show-cause notice, the order of attachment purportedly relating to the proceedings under Section 74 cannot be upheld. The question of law answered in the affirmative - Order of attachment set aside.
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