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TMI Blog2020 (11) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... embers as per details furnished in the writ petition including in the prayer portion; 3. for a direction to the respondents to unfreeze the Importer Exporter Code No.0314035460 of the proprietorship firm of the petitioner by the name of 'M/s. XS Components'; and 4. for a direction to the respondents allowing presence of a lawyer of petitioner's choice during investigation (questioning) of the petitioner. 3. On 08.09.2020, this Court had issued notice on admission as well on stay while directing the respondents to file affidavit. Subsequently an affidavit was filed by the respondents. 4. On 08.10.2020, the interim prayer of the petitioner was heard whereafter the following order was passed:- "2] Our attention has been drawn to Section 83 of the Central Goods and Services Tax Act, 2017 as well as to the garnishee notices issued including the one at page 195 of the Writ Petition. 3] From a reading of Section 83, we find that there are two preconditions which must be satisfied before the Commissioner can exercise jurisdiction under Section 83. First precondition is pendency of any proceedings under Section 62 or Section 63 or Section 64 or Section 67 or Section 73 or Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncentives claimed by the petitioner, office of respondent Nos.3 and 4 carried out search operations in the residence and office premises of the petitioner on 11.09.2019 whereafter various documents etc. were seized. Simultaneously, the importer exporter code of the petitioner was blocked. According to the petitioner, the search warrant was only in respect of M/s. XS Components; nonetheless, documents belonging to another entity called Evertime Trading Private Limited were also seized. However, seizure memo has not been furnished to the petitioner. 8.3. Thereafter summons were issued to the petitioner by respondent No.4 on 06.11.2019 seeking certain information pertaining to export incentives claimed by the petitioner which was replied to by the petitioner on 13.11.2019. Further details were furnished by the petitioner to respondent No.4 on 15.11.2019. 8.4. It is stated that on the insistence of respondent No.4, petitioner made payment of Rs. 30,00,000.00 without prejudice to his rights and contentions vide three demand drafts dated 17.01.2020, 20.01.2020 and 28.01.2020, all drawn in favour of Commissioner of Customs, Tuglakabad. 8.5. Notwithstanding the same, the importer export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 HDFC Bank Ltd. Santacruz (W) Mansi Mandavia & Siddharth P. Mandavia 00791000210784 8.9. Aggrieved by the above, petitioner has preferred the present writ petition seeking the reliefs as indicated above. 9. Respondent Nos.5 to 7 have filed a common affidavit in reply through Mr. Hrishikesh Kiran Utpat, Deputy Director in the office of Directorate General of GST Intelligence, Mumbai Zonal Unit. Though many things have been stated, for the purpose of consideration of the interim prayer we may mention that as per the stand of the answering respondents, based on information received that some exporters had availed input tax credit (ITC) on the basis of ineligible documents or by committing fraud showing payment of IGST on goods exported out of India, a joint pan India operation was conducted on 11.09.2019 by the Directorate General of GST Intelligence and Directorate General of Revenue Intelligence. Various exporters covered in the said operation included the proprietorship firm of the petitioner. The said exporter is being investigated by the Directorate General of GST Intelligence in regard to possible violations of the GST law. 9.1. From the investigation carried out till dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fide apprehension that petitioner would siphon-off the remaining money lying in his bank accounts with a view to thwarting the ultimate collection of tax demand that is likely to be raised on completion of the enquiry. 9.5. After referring to section 83 of the Central Goods and Services Tax Act, 2017 (briefly 'the CGST Act' hereinafter), it is stated that provisional attachment of bank accounts of the petitioner was proposed. Holding that the investigation carried out against the petitioner falls within the ambit of pendency of any proceedings under section 67 and section 74 of the CGST Act, it is stated that Principal Additional Director General concluded that it was necessary to provisionally attach the bank accounts of the petitioner. In this connection, reference has been made to rule 159 of the Central Goods and Services Tax Rules, 2017 (briefly 'the CGST Rules' hereinafter), more particularly sub-rules (5) and (6) thereof as well as to Form GST DRC-22. It is therefore contended that Principal Additional Director General was vested with the power to provisionally attach the bank accounts of the petitioner under section 83 of the CGST Act which power he has exercised. Power ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary to attach the bank accounts of the concerned person Mr. S. P. Mandavia to protect government revenue as per section 83 of the CGST Act. It has been clarified that the post of Principal Additional Director General is equivalent to the post of Principal Commissioner and he granted approval to the action under section 83. Thereafter the order was issued on 08.07.2020 in the prescribed format i.e., Form GST DRC-22. Reference has been made to sections 67 and 74 of the CGST Act whereafter it is contended that the investigation carried out in respect of the petitioner falls within the ambit of pendency of any proceedings under sections 67 and 74 which is an essential pre-requisite for invocation of section 83 of the CGST Act. 12. While Dr. Kantawala submits that attachment of the bank accounts of the petitioner and his family members is wholly unjustified and illegal being beyond the purview of section 83 of the CGST Act causing immense hardship to the petitioner and his family members, Mr. Jetly, learned senior counsel for the respondents on the other hand submits that attachment of bank accounts is provisional only and the said power is available to the authorities which has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank accounts. Because of the very nature of temporary attachment, sub-section (2) makes it abundantly clear that such provisional attachment shall not be in excess of one year from the date of the order made under sub-section (1) and shall cease to have effect after the expiry of one year from the date of the order. 17. Rule 159 of the CGST Rules deals with provisional attachment of the property as envisaged in section 83 of the CGST Act. Rule 159 is extracted hereunder:- "159. Provisional attachment of property.- (1) Where the Commissioner decides to attach any property, including bank account in accordance with the provisions of section 83, he shall pass an order in FORM GST DRC-22 to that effect mentioning therein, the details of property which is attached. (2) The Commissioner shall send a copy of the order of attachment to the concerned Revenue Authority or Transport Authority or any such Authority to place encumbrance on the said movable or immovable property, which shall be removed only on the written instructions from the Commissioner to that effect. (3) Where the property attached is of perishable or hazardous nature, and if the taxable person pays an amount equiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is implicit in rule 6 which empowers the Commissioner to release the property provisionally attached before the outer limit of one year if he is satisfied that such attachment of property is no longer required. 17.3. In so far sub-rule (5) is concerned, it goes without saying that preassessment attachment of property, including bank account, even if provisional, is a drastic measure. Its sole purpose is to protect the interest of government revenue. It cannot be used as a punitive measure. It is a serious invasion into the private domain of a tax payer. Therefore, to ensure that the said power is exercised after due consideration and in a reasonable manner as well as to provide an opportunity to the tax payer to satisfy the Commissioner that such attachment is unnecessary and therefore should be lifted, provision for objection, hearing and release is provided in sub-rule (5). 18. The format of passing the order contemplated under section 83 read with sub-rule (1) of rule 159 is provided in Form GST DRC-22 which is in the form of an intimation to the bank / post office / financial institution / immovable property registering authority. 19. From a careful analysis of the above pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of other bank accounts appears to be their link with the petitioner or his PAN. They being not the tax payers in this case, provisional attachment of their bank accounts therefore would not be justified. 21.1. In so far the other bank accounts are concerned, considering the seriousness of the measure and having regard to the provisions contained in sub-rule (5) of rule 159, we are of the view that liberty may be granted to the petitioner even at this stage to file objection to the provisional attachment and if such an objection is filed, the competent authority may take an appropriate decision thereon after providing an opportunity of hearing to the petitioner. 22. At this stage, we may usefully refer to the observations of the Gujarat High Court in the case of Patran Steel Rolling Mill Vs. Assistant Commissioner of State Tax, 2019 (20) GSTL 732 wherein it was emphasized that while exercising powers under section 83 of the CGST Act, authorities should try to balance the interest of the government revenue on the one hand and the interest of the dealer on the other hand. Authorities should ensure that the dealer is left in a position where he can continue with his business because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f making a representation in writing within such reasonable time as may be specified in the notice and, if that person so desires, of being heard, suspend for a period, as may be specified in the order, or cancel the Importer-exporter Code Number granted to that person. (2) Where any Importer-exporter Code Number granted to a person has been suspended or cancelled under sub-section (1), that person shall not be entitled to (import or export any goods or services or technology) except under a special licence, granted, in such manner and subject to such conditions as may be prescribed, by the Director-General to that person." 23.2. From a careful reading of sub-section (1) of section 8 it is seen that when there is contravention of the provisions of the Foreign Trade (Development and Regulation) Act, 1992 or the rules or orders made thereunder, or breach of the foreign trade policy or if the Director General of Foreign Trade or his authorized officer has reason to believe that any person has made an export or import in a manner which is prejudicial to the trade relations of India with any foreign country etc., the Director General or the authorized officer after calling for the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s solely in the name of Ms. Mansi Siddharth Mandavia shall be unfrozen forthwith; 2. The account numbers which are jointly in the names of the petitioner and either Mansi Mandavia alias Mansi Siddharth Mandavia and Hriaan Siddharth Mandavia at Sr. Nos.3, 5, 6, 11 and 12 of paragraph 8.8 shall be unfrozen forthwith subject to the condition that until otherwise directed, those accounts shall be in debit freeze to the extent of 50% of the amounts presently credited; 3. In so far the other accounts are concerned, petitioner may file objection before the Principal Additional Director General of GST Intelligence within a period of 7 days from today; 4. If such objection is filed as above, the Principal Additional Director General shall afford an opportunity of hearing to the petitioner and thereafter pass an appropriate order in accordance with law within a period of 3 weeks from the date of filing of the objection; 5. Blockage of importer exporter code of the petitioner by respondent No.3 or by any other authority shall be withdrawn forthwith. 6. List for further consideration on 15.12.2020. 26. This order will be digitally signed by the Private Secretary of this Court. All c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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