TMI Blog2021 (8) TMI 519X X X X Extracts X X X X X X X X Extracts X X X X ..... gs do not survive and, a fortiori, such termination would have the effect of terminating the life of the order of provisional attachment. The order of provisional attachment, which is the subject matter of challenge in the writ petition, suffers from an error of jurisdictional fact. Proceedings under Section 73 had been initiated against the petitioner for reclaiming the erroneous refund, which was earlier effected on its prayer. The order of provisional attachment was made not during pendency of any proceedings under Sections 62 or 63 or 64 or 67 or 73 or 74 of the CGST Act but was made in view of contemplation of proceedings under Section 73 thereof - the proceedings under Section 73 of the CGST Act having been taken to its logical conclusion, the purpose for which the order of provisional attachment had been made has also ceased to survive and, therefore, the petitioner is justified in its claim that such order of provisional attachment ought to be set aside. The writ petition as well as the interim application stands disposed of. - INTERIM APPLICATION NO. 1322 OF 2021 IN WRIT PETITION NO. 2127 of 2021 - - - Dated:- 10-8-2021 - DIPANKAR DATTA, CJ. G.S. KULKARNI, J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the said account or any other account operated by the petitioner without prior permission. 4. A bare reading of the order dated December 1, 2020 would reveal that the petitioner was accused of claiming fraudulent refund under Section 54 of the CGST Act. It is also noted therefrom that the respondent no.2 was given to understand by the Dongri Police Station, Mumbai (vide correspondence dated November 27, 2020) that upon a written request being made, the said bank account having ₹ 5,20,13,134/- had been temporarily frozen by the respondent no.3. 5. The petitioner mounted a challenge to the said order dated December 1, 2020 on the ground that the condition precedent for provisional attachment of a bank account, as referred to in Section 83 of the CGST Act, was non-existent. Since no proceedings against the petitioner were pending under Sections 62 or 63 or 64 or 67 or 73 or 74 of the CGST Act, it was claimed that the respondent no.2 had acted without jurisdiction. 6. The writ petition was considered by a co-ordinate Bench on March 2, 2021. The Bench noted that on January 13, 2021, a show-cause notice was issued to the petitioner whereafter an order in original dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in Radha Krishan Industries vs. State of Himachal Pradesh Ors., reported in 2021 SCC OnLine SC 334. According to the petitioner, proceedings which were initiated stand terminated by reason of the final order dated February 12, 2021 and, therefore, there could be no cause for the respondents to keep the order of provisional attachment of its bank account alive. 8. Having regard to the nature of relief claimed in the writ petition as well as the interim application, set out above, we are tasked to decide a simple issue: whether, having regard to the decision in Radha Krishan Industries (supra), the order of provisional attachment dated December 1, 2020 can be kept alive? 9. Mr. Jetly contended that the decision in Radha Krishan Industries (supra) was rendered considering a very different fact situation and, therefore, the ratio of such decision is not applicable here; and notwithstanding the decision in Radha Krishan Industries (supra) and culmination of the proceedings initiated against the petitioner by the order dated February 12, 2021, since carried in appeal which is pending, the respondents are justified in not lifting the order of provisional attachment because ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry proceedings for the balance are deemed to be stayed. Thus, in any event, the order of provisional attachment must cease to subsist. The appellant, having filed an appeal under Section 107, is required to comply with the provisions of sub-Section (6) of Section 107 while the recovery of the balance is deemed to be stayed under the provisions of sub-Section (7). As observed hereinabove and under Section 83, the order of provisional attachment may be passed during the pendency of any proceedings under Section 62 or Section 63 or Section 64 or Section 67 or Section 73 or Section 74. Therefore, once the final order of assessment is passed under Section 74 the order of provisional attachment must cease to subsist. Therefore, after the final order under Section 74 of the HPGST Act was passed on 18 February, 2021, the order of provisional attachment must come to an end. (emphasis supplied) 11. It has not been shown by Mr. Jetly that the provisions of the HPGST Act and the rules framed thereunder, which were under consideration in Radha Krishan Industries (supra), are in any manner different from the CGST Act and the rules framed thereunder with which we are concerned. It also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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