TMI Blog2018 (2) TMI 1800X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the respondents of attaching the bank accounts of the petitioners’ stands vitiated by non-application of mind to the relevant factors and other infirmities - petition allowed. - SPECIAL CIVIL APPLICATION NO. 20674 of 2017 - - - Dated:- 2-2-2018 - MS. HARSHA DEVANI AND MR A.S. SUPEHIA, JJ. For The Petitioners : UCHIT N SHETH, ADVOCATE For The Respondents : MR CHINTAN DAVE, ASSTT. GOVERNMENT PLEADER ORAL JUDGMENT ( PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. Rule. Mr. Chintan Dave, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondents. 2. Having regard to the controversy involved in the present case, which lies in a very narrow compass and considering the urgency in the matter as the bank accounts of the petitioners have been attached, the matter was taken up for hearing today. 3. The facts stated briefly are that the petitioners are engaged in re-selling of timber locally within the State of Gujarat as well as in the course of inter-State trade and commerce. The petitioners are duly registered under the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as the GVAT Act ) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest of the Government revenue, it is necessary to attach provisionally the property belonging to the dealer, whereas, in the present case, no such satisfaction has been recorded by the respondent authorities. Reference was made to an unreported decision of this court in the case of Vishwanath Realtor and another v. State of Gujarat and others rendered on 29.4.2015 in Special Civil Application No.7210 of 2015, wherein the court held that before passing the order of provisional attachment, there must be an opinion formed by the Commissioner that for the purpose of protecting the interest of the Government Revenue during the pendency of any proceedings of assessment or reassessment, it is necessary to attach provisionally property belonging to the dealer. However, such satisfaction must be on some tangible material on objective facts with the Commissioner. In a given case, on the basis of the past conduct of the dealer and on the basis of some reliable information that the dealer is likely to defeat the claim of the revenue in case any order is passed against the dealer under the GVAT Act and/or the dealer is likely to sell his properties and/or sell and/or dispose of the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leader for the respondent, reiterated the averments made in the affidavit-in-reply filed on behalf of the respondents. It was submitted that having regard to the facts of the case, since the registration number of several parties with whom the petitioner had dealings have been cancelled ab initio , it is likely that huge dues be required to be recovered from the petitioner once the assessment proceedings culminate. It was submitted that the approximate VAT liability for the year under consideration together with penalty and interest comes to about ₹ 3,28,24,724/- and hence, considering the huge amount which the petitioner would ultimately be liable to pay, the action taken by the respondents, is just, proper and legal and does not warrant any interference. 7. In the present case, the respondents have provisionally attached the bank accounts of the petitioners as evidenced by communications dated 1.9.2017, 5.9.2017 and 13.9.2017 respectively, received by the petitioners from ICICI Bank, Karur Vyasya Bank and Oriental Bank of Commerce. 8. The power exercised by the respondents is relatable to section 45 of the GVAT Act, which makes provision for provisional attachment an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the GVAT Act, the Commissioner is required to record satisfaction that for the purpose of protecting the interest of the Government revenue, it is necessary to provisionally attach any property belonging to the dealer. Such satisfaction has to be based upon objective facts and should fall within the circumstances enumerated in the above referred decision or circumstances which are akin to the circumstances enumerated therein. In the present case, no satisfaction whatsoever as envisaged under section 45 of the GVAT Act has been recorded by the Commissioner while ordering provisional attachment of the petitioners bank accounts. Moreover, from the facts as emerging from the record it is evident that the action taken by the respondents suffers from the vice of nonapplication of mind to the relevant facts, inasmuch as, the respondents have failed to take into consideration the fact that the stock belonging to the petitioner worth ₹ 3,28,24,724/- had already been attached, which is almost equivalent to the total demand of tax, interest and penalty and therefore, there was no need for any further security towards the demand that may be likely to arise. 11. Moreover, a perusal o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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