TMI Blog2021 (2) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... TICE AJAY TEWARI AND HON'BLE MR. JUSTICE RAJESH BHARDWAJ Present: Mr. Jagmohan Bansal, Advocate for the petitioner. Mr. T.K. Joshi, Advocate and Mr. Ruchir Bhatia, Advocate for respondent No.1. *** AJAY TEWARI, J. (Oral) 1. This petition has been filed challenging the provisional attachment of the bank account of the petitioner purportedly under Section 83 of the Central Goods and Service Tax Act, 2017 (for short 'the CGST Act'). 2. As per the impugned order, the account has been frozen in view of Section 74 of the said CGST Act. Section 74 is reproduced herein below:- 74. Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised by reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fraud, or any wilful-misstatement or suppression of facts to evade tax, for periods other than those covered under subsection (1) are the same as are mentioned in the earlier notice. (5) The person chargeable with tax may, before service of notice under sub-section (1), pay the amount of tax along with interest payable under section 50 and a penalty equivalent to fifteen per cent. of such tax on the basis of his own ascertainment of such tax or the tax as ascertained by the proper officer and inform the proper officer in writing of such payment. (6) The proper officer, on receipt of such information, shall not serve any notice under sub-section (1), in respect of the tax so paid or any penalty payable under the provisions of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luded . 3. The precise contention of the learned counsel for the petitioner is that the proceedings under Section 74 can be initiated only once notice under sub-Section (1) is issued and in the present case, no such notice has been issued even till today. 4. Learned counsel for respondent No.1 has pointed out to sub-Section (5) to contend that once the petitioner had voluntarily deposited some amount, the notice would not be required and it would not be deemed that the proceedings under Section 74 are pending. 5. Learned counsel for the petitioner pointed out to sub-Section (7) and has argued that if the assertion of learned counsel for respondent No.1 is accepted then this sub-Sections would become otiose. 6. We find that sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfied if all of their bank accounts were de-frozen and the account which they have in the HDFC Bank be kept under the lien of the Department to the extent of the demand of the revenue viz. ₹ 3.31 crores. As per learned counsel for the respondent-revenue, this action was taken pursuant to the request of the petitioner. 9. Learned counsel for the petitioner has then argued that this offer was made because the petitioner was facing a situation where all its accounts were frozen and it had to remit payment on time. The request was made without prejudice to the rights of the petitioner. Consequently, this argument of the learned counsel for the respondent No.1 has to be rejected. 10. Resultantly, in the end we are left with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o ruin business of any taxable person. Primarily Section 83 permits to attach property. Property means an asset which may be movable, immovable, tangible, intangible or in the form of some instrument. Cash in hand as well bank account is property, in the form of liquidity which is better than immovable property and directly affects working in the form of working capital of a dealer. A dealer may be having 15 of 17 CWP No.31382 of 2019(O M) #16# cash in hand or in account in the form of fixed deposit or saving account. The mandate of Section 83 in our considered opinion is to attach amount lying in an account in the form of FDR or saving and it cannot be intention or purport of Section 83 to attach an account having debit balance. No purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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