TMI Blog2021 (5) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment revenue, the bank had chosen to follow the directions from the respondents, not to intimate to the petitioner as to why his account was freezed is wholly impermissible. There are already proceedings initiated under Section 79 against the present petitioner, who is the third party. Against such initiation of proceedings under Section 79 of the Act, no challenge in the present petition is made and a limited prayer is to the actions of initiating proceedings under section 83 and freezing of the account which has already been addressed. The attachment is ordered to be lifted and the petitioner is permitted to operate his bank account - Petition allowed - decided in favor of petitioner. - R/SPECIAL CIVIL APPLICATION NO. 16360 of 2020 - - - Dated:- 19-4-2021 - HONOURABLE MS. JUSTICE SONIA GOKANI AND HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI Appearance: MANAN K PANERI(7959) for the Petitioner(s) No. 1 MR DEVANG VYAS(2794) for the Respondent(s) No. 1 NOTICE SERVED(4) for the Respondent(s) No. 3 UNSERVED WANT OF TIM(31) for the Respondent(s) No. 2 ORAL ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI) 1. The petitioner herein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Civil Application No. 13132 of 2019 in case of Valerius Industries Vs. Union of India , as also the decision of the Bombay High Court rendered in case of Kaish Impex Pvt. Ltd. Vs. Union of India and others dated 17.01.2020 in Writ Petition No.3145 of 2019 . Prayers sought in this petition are the following prayers: A. Your Lordships may be pleased to issue a Writ of Certiorari or any other Writ or direction quashing and setting aside the attachment order passed by the Respondent No.2 and be further pleased to direct the Respondents to de freeze/detach the Current Bank Account No.3785569992 of the Petitioner with the Central Bank of India, Rajkot Main Branch from provisional attachment under Section 83 of the Central Goods and Services Tax Act, 2017; (B) Pending admission and final hearing of the Petition, this Hon ble Court may be pleased to direct the Respondents to de freeze/detach the Current Bank Account No.3785569992 of the Petitioner with the Central Bank of India, Rajkot Main Branch from provisional attachment under Section 83 of the Central Goods and Services Tax Act, 2017 on terms and conditions as this Hon ble Court may deem fit; (C) Your Lordsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2017 for recovery of proceeds of crime; a notice was issued to the Central Bank of India, Rajkot Branch in the name of M/s. Global Corporation. The Central Bank of India was also requested to hold a sum of ₹ 48,25,000/ and pay the same to the government in compliance of the provisions contained in clause (c)(i) of sub section (1) of Section 79 of the Act. According to the respondents, it is the case of fraud, willful misstatement and suppression of the facts under Section 29(2)(e) of the CGST Act, 2017. The show cause notice was also issued on 24.11.2020 under Section 74 of the CGST Act, 2017 and Order in Original dated 11.12.2020 is passed. The same was addressed to M/s. Belluxa Trading Company, and the Speed Post was returned with the endorsement of insufficient address/not known . On the email address of Sajid Imam Shaikh, the show cause notice or the order in original could not be served. The fraudulent transactions and the refund of huge sum of amount (₹ 3,15,52,578/ ), with diversion of substantial portion to the present petitioner of ₹ 48,25,000/ , the company account has been frizzed. It is the further say of the respondents that the communication d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tending that the freezing of account as a proceedings under Section 79 has already been initiated against the present petitioner. He has emphasized that for protecting the interest of the revenue, section 79 certainly would come to the rescue of the respondents. This is a gross case of a trading company not existing and by willfully mistaking its proceedings, the facts the huge amount of refunds being taken, out of which the substantial sum of deposit of the refund of about 3.15 crores, sum of 42.25 lakhs have been diverted to the account of the present petitioner. Therefore, as such, the proceedings initiated under Section 79 of the CGST Act, 2017 shall continue against the petitioner. 11. Having heard both the sides, firstly, the decision rendered by this Court in case of Piyush Shamijibhai Vasoya vs. Union of India (Supra) delivered on 27.01.2021, shall need to be regarded. There also the controversy was in relation to the third party, in whose case the bank account in exercise of the powers under Section 83 of the CGST Act, 2017 had been freezed. It was a question of some actions taken by the authority concerned against few other individuals. The Court having noted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Annexure-C to this writ-application is hereby quashed and set aside. The attachment is ordered to be lifted. The bank shall permit the writ-applicant to operate his bank account. 9. Mr. Vyas would submit that the proceedings under Section 79 of the Act, 2017 have been initiated against the writ-applicant and they are pending as on date. We may only say that if such proceedings have been initiated and are pending, the same may continue in accordance with law. We do not express any opinion on merits as regards the proceedings initiated under Section79 of the Act, 2017. 12. We have given to understand by the learned advocate, Mr. Paneri that as the proceedings under Section 79 of the Act have already been initiated against the writ applicant under jurisdiction of the Bombay High Court, he earlier also have challenged such proceedings initiated under Section 79 of the Bombay high Court and the same have not been initiated here as he was waiting for this writ petition to be taken up and the action on the part of the bank of freezing his account also be interfered with. 13. We have noticed that in the instant case also, there are no proceedings against the present petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money as is sufficient to pay the amount due from such person or the whole of the money when it is equal to or less than that amount. Such person to whom such a notice is issued, is bound to comply with the notice and where the notice is issued to a post office, banking company or an insurer, it shall not be necessary to produce any pass book, deposit receipt, policy or any other document for the purpose of entry, endorsement or the like being made before payment is made. Section (1) (C)(iii) also provides that in case of a person to whom the notice has been issued, fails to make the payment in pursuance to thereof of the government despite of the notice, he shall be deemed to be a defaulter in respect of the amount specified in the notice and all the consequences of this Act or the rules made thereunder shall follow. The proper officer may detain any movable or immovable property belonging to such person and detain the same until the amount payable is paid. 15. We are conscious of the fact that there are already proceedings initiated under Section 79 against the present petitioner, who is the third party. Against such initiation of proceedings under Section 79 of the Act, no c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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