9911796707
Advanced Search 
TMI Blog2021 (8) TMI 519X X X X Extracts X X X X X X X X Extracts X X X X ..... in Writ Petition No. 2127 of 2021. The prayers in the interim application read as follows: - (a) That this Hon'ble Court be pleased to modify its order dated 02.03.2021 and the direction given in paragraph 6 of the said order dated 02.03.2021 that "the remaining amount of 90% continuing under debit freeze which shall be subject to outcome of the appeal or such order that may be passed by the appellate authority" be deleted. (b) That this Hon'ble Court be pleased to quash and set aside the impugned attachment order dated 01.12.2020 issued by Respondent No.2 and de-freeze the balance amount of 90% kept in debit freeze vide order dated 02.03.2021 passed by this Hon'ble Court. (c) That this Hon'ble Court be pleased rectify the word 'Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 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 Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Since petitioner has a statutory right of filing appeal against the order in original, to make such right meaningful, we direct that provisional attachment of the aforesaid bank account of the petitioner shall be withdrawn to the extent of 10% of the credited amount as on today with the remaining amount of 90% continuing under debit freeze, which shall be subject to outcome of the appeal or such order that may be passed by the appellate authority. 7. Stand over to 20th April, 2021." 7. Availing the leave granted by the order dated March 2, 2021, the petitioner carried the order dated February 12, 2021 in an appeal under Section 107 of the CGST Act. As required by sub-section (6) of Section 107, requisite amount has been pre-deposited fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visional attachment because new facts of the revenue being defrauded by the petitioner have been unearthed. Mr.Jetly, by referring to the reply affidavit of the respondent no.2 to the additional affidavit of the petitioner, more particularly paragraphs 5 to 8, contended that investigations against the petitioner are in progress and that further proceedings in terms of Section 74 of the CGST Act are in contemplation; in view thereof, it would hit the interest of the revenue hard if relief claimed by the petitioner is granted. 10. In Radha Krishan Industries (supra), an order of provisional attachment was challenged before the relevant Himachal Pradesh High Court in a writ petition. Such petition was dismissed on the ground that an alternati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g amount of tax in dispute arising from the order has to be paid in relation to which the appeal has been filed. Upon the payment of the amount under sub-Section (6) the recovery 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. From its inception, i.e., December 1, 2020, the order of provisional attachment was not at all a valid order. The show-cause notice having been issued on January 13, 2021 under Section 73(1) of the CGST Act, i.e., almost 45 days after the order of provisional attachment was made, the latter suffered from an error of jurisdictional fact in that, as on December 1, 2020, no proceedings of the nature referred to in sub-section (1) of Section 83 had been initiated; and, therefore, question of penden ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
