TMI Blog2019 (10) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, acts in a highhanded and arbitrary manner in excess of the authority vested in him the same is required to be viewed very seriously. Justice demands that such citizen be compensated for the undue harassment faced by him on account of the unauthorised action of the concerned officer. It is evident as to why the petitioner has taken such a stand. The said request of the petitioner seems to emanate from the fact that the petitioner who is covered by the Goods and Services Tax Act has to deal with the officer concerned day in and day out and is, therefore, afraid of taking any action against him out of fear of facing reprisal for his action as the entire department would be up in arms against him and he would have to face untold harassment in future. Therefore, at the request of the petitioner, the court refrains from passing any order of exemplary costs. The impugned order of seizure dated 25. 10. 2018 passed by the respondent No. 4, is hereby quashed and set aside and the respondent NO. 4 is directed to forthwith release the vehicle as well as to mobile phones of the petitioner and hand them over to him - Petition allowed. - R/SPECIAL CIVIL APPLICATION NO. 15365 of 2019 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of the petitioner that the aforesaid seizure of his car and mobile phones was made without following the provisions of section 67 of the GGST Act and rule 139 of the Central Goods and Service Tax Rules, 2017 (hereinafter referred to as 'the rules'). It is further the case of the petitioner that though a period of more than six months has passed since the car and the mobile phones came to be seized, neither has the petitioner been served with a notice under sub-section (7) of section 67 of the GGST Act nor has he been served or any order affixed at his residential premises for extension of the period of seizure by a further period of six months. It is further the case of the petitioner that he has orally made several requests to the respondents that he is ready and willing to give a bond for provisional release of the articles seized, but till date, there is no response from the respondents. The petitioner made a representation to the third respondent on 5. 8. 2019; however, there was no response thereto. Being aggrieved, the petitioner has filed the present petition. 7. On 27. 9. 2019, this court passed the following order:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een joined as a party. 8. Mr. Maulik Vakhariya, learned advocate for the petitioner, invited the attention of the court to the impugned order of seizure to point out that the same has been passed under sub-section (2) of section 67 of the GGST Act. It was submitted that such order has been passed without any authorisation having been given to the concerned officer as contemplated under sub-section (2) of section 67 of the GGST Act. Reference was made to the impugned order to point out that in terms thereof, the premises at which the search came to be carried is Rajya Kar Bhavan, Ahmedabad. It was argued that the third respondent, being an Assistant Commissioner had not authority in law to made a seizure under section 67(2) of the GGST without him being authorised to carry out a search by a proper officer not below the rank of Joint Commissioner, and hence, the action of the third respondent of unlawfully seizing the car and the mobile phones of the petitioner is without any authority of law. It was submitted that therefore, the impugned order of seizure deserves to be set aside and the car and the mobile phones of the petitioner are required to be ordered to be rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 3. 11. 2018 a reminder was sent to the petitioner calling upon him to give information about Madhav Shah and Hitendra Shah as well as for payment of the amount of tax which he was liable to pay as the authorities had evidence to the effect that the petitioner was involved in billing transactions. 9. 2 It is further averred in the affidavit-inreply that the petitioner had filed an application for anticipatory bail before the Sessions Court, which came to be rejected and that the petitioner has preferred an application for anticipatory bail before the High Court which is pending. It is further averred that the petitioner has not co-operated with the authorities in providing information as to at whose behest he was working for fake bills. It is further stated that the authority had exercised powers under section 71 read with section 67(2) of the GGST Act by seizing the said vehicle and the mobile phones for the simple reason that the petitioner does not possess any other property either movable or immovable in nature and the petitioner is residing in rental premises situated at Gandhinagar. 9. 3 The learned Assistant Government Pleader submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided that where it is not practicable to seize any such goods, the proper officer, or any officer authorized by him, may serve on the owner or the custodian of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer: Provided further that the documents or books or things so seized shall be retained by such officer only for so long as may be necessary for their examination and for any inquiry or proceedings under this Act. ( 3) The documents, books or things referred to in sub-section (2) or any other documents, books or things produced by a taxable person or any other person, which have not been relied upon for the issue of notice under this Act or the rules made thereunder, shall be returned to such person within a period not exceeding thirty days of the issue of the said notice. ( 4) xxxx ( 5) xxx ( 6) xxxx ( 7) Where any goods are seized under subsection ( 2) and no notice in respect thereof is given within six months of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /or books and/or things useful or relevant to proceedings under that Act are secreted in the place mentioned above. Interestingly, in the seizure order, the place where the documents and/or books and/or things useful or relevant for the proceedings are secreted is stated to be Rajya Kar Bhavan namely the State Tax Office. Thus, according to the respondent No. 4, the petitioner has secreted goods/books/ documents and things at the State Tax Office and therefore, search is required to be carried out of those premises. 14. It may be pertinent to note that in the order dated 27. 09. 2019, whereby the respondent No. 4 was made a party respondent by name, it was specifically recorded that the learned Assistant Government Pleader, upon perusal of the record of the case is not in a position to point out any authorisation having been issued by a person not below the rank of Joint Commissioner for carrying out search in accordance with the provisions of sub-section (2) of section 67 of the CGST/GGST Act, 2017. Therefore, the respondent No. 4 was required to show as to whether he had passed the seizure order on the basis of any authorisation given to him by the proper office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n given in the affidavit-in-reply as regards the illegalities alleged to have been committed by the petitioner, does not give the fourth respondent a licence to act in excess of the powers vested in him. Such action on the part of the respondent No. 4 cannot be countenanced even for a moment. 17. It may be noted that on 25. 9. 2019, this court had passed an order in the following terms:- 1. Mr. Maulik Vakhariya, learned advocate for the petitioner has invited the attention of the court to the order of seizure made under rule 139(2) of the Goods and Services Tax Rules, 2017, to point out that the petitioner s car bearing No. GJ-01- RX-0477 has been seized at the Rajya Kar Bhavan, Ahmedabad. The attention of the court was invited to the provisions of sub-section (2) of section 67 of the CGST Act which finds reference in the order of seizure, to point out that the same relates to power of inspection, search and seizure. It was submitted that the petitioner s car came to be seized when the petitioner had gone to the tax office for attending some proceeding there. It was submitted that the impugned order of seizure is totally without any authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to access to business premises. As is apparent of a plain reading of section 83 of the GGST Act, the same does not empower the Commissioner to take action thereunder during the pendency of proceedings under section 71 of the GGST Act. Therefore, the impugned order of seizure made by the respondent No. 4 is not relatable to any provision of the GGST Act. Therefore, it is not even possible to say that the provision referred to in the impugned order is incorrect but that the respondent No. 4 was otherwise vested with such powers. Under the circumstances, the inescapable conclusion is that the respondent No. 4 has acted without any authority of law and in gross abuse of powers, which renders the impugned order of seizure, unsustainable. 20. However, having regard to the gross abuse of powers on the part of the respondent No. 4, merely setting aside the impugned order will not meet the ends of justice, inasmuch as, petitioner has been deprived of the use of his vehicle and his two mobile phones for a period of almost one year on account of such unauthorised action on the part of the fourth respondent and is therefore required to be adequately compensated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, it may be noted that the learned advocate for the petitioner, under instructions of the petitioner, has requested this court not to pass any orders which may affect the respondent No. 4 personally and has further stated that he is not interested in getting any compensation for the damage suffered by him on account of the arbitrary and unlawful action of the respondent No. 4. It is evident as to why the petitioner has taken such a stand. The said request of the petitioner seems to emanate from the fact that the petitioner who is covered by the Goods and Services Tax Act has to deal with the officer concerned day in and day out and is, therefore, afraid of taking any action against him out of fear of facing reprisal for his action as the entire department would be up in arms against him and he would have to face untold harassment in future. Therefore, at the request of the petitioner, the court refrains from passing any order of exemplary costs. 25. For the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned order of seizure dated 25. 10. 2018 passed by the respondent No. 4, is hereby quashed and set aside and the respondent NO. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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