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TMI Blog2021 (9) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... and also as regards other entities relating to the alleged issuance of bogus/fake invoices without supply of goods and were seeking to claim Input Tax Credit of Goods and Service Tax. It is stated that the petitioner was purchasing the mobile hand sets from these suppliers and was selling to its customers. The respondent No.2 on 02.09.2020 conducted a search at the Head Office of the petitioner. It is submitted that during the search, the respondent No.2 issued summons to Mr.Rishi Raj Singh Rathore, Director and Mr.Nishant Gupta, Associate Director of the petitioner Company and had recorded their statements. 3. It is further made out in the petition that the said representatives of petitioner Company responded to the notice, appeared before the Authorities and also made their statements, which has been duly recorded. 4. It is made out in the petition that on 21.09.2020, the respondent No.2 had sought details of the bank accounts of the petitioner which was provided on the same day. It is stated that the respondent No.2 has attached the bank accounts of the petitioner purportedly in exercise of power under Section 83 of the Central Goods and Services Tax Act, 2017 ('CGST Act& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the matter, learned counsel for the petitioner has advanced detailed arguments and has relied on the judgment of Apex Court in the case of Radha Krishan Industries v. State of Himachal Pradesh and Others reported in (2021) SCC OnLine SC 334 and contends that a detailed consideration has been made regarding the procedure to be adhered to while effecting the provisional attachment of property, including the bank account belonging to a taxable person and that the pre-conditions for exercise of proceedings under Section 83 of CGST Act is that the pendency of proceedings under Sections 62, 63, 64, 67, 73 and 74 of CGST Act, that the Commissioner must form an opinion and that for the purpose of protecting the interest of government revenue, it must be necessary the that provisional attachment has to be resorted to. 12. It is contended that the mode of attachment is as prescribed in Form GST DRC-22 and the manner of such provisional attachment is prescribed under Rule 159 of CGST Rules. It is further pointed out that Rule 159(5) of CGST Rules also provides for an opportunity that a person whose property is attached is permitted to file objections to make out a case that the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that while learned counsel for the petitioner has drawn attention to Annexure-A dated 21.09.2020 addressed to the Bank Manager, HDFC Bank, Bengaluru regarding the provisional attachment of bank account of the petitioner in exercise of power under Section 83 of the CGST Act, it is pointed out that such communication does not have any copy addressed to the petitioner. 20. The petitioner has also specifically asserted that no such communication was sent to him and that he came to know about the same only from his bankers. As regards such assertion, the only response of learned counsel appearing for the respondent Authority is that there has been a communication to the petitioner and has placed reliance on the letter dated 21.09.2020 which contains a handwritten endorsement indicating that a copy has been sent to the petitioner's address, viz., M.s.Sterne India Pvt. Ltd., 249, 19th Main Road, HSR Layout, Sector-4, Bengaluru. However, there is no material forthcoming to establish that such communication has been sent to the petitioner, nor any material has been produced to indicate that such notice has been served on the petitioner. 21. What is of significance is the opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2020, it must be noted that the receipt of such representation is not in dispute. The only point raised by the Revenue is that the representation ought to have been made within seven days as contemplated under Rule 159(5) of CGST Rules and in light of absence of condonation of delay, the said representation was not considered. 27. It must be noted that the exercise of right under Rule 159(5) of CGST Rules presupposes the communication of provisional order of attachment. The fact that the petitioner came to know of the said provisional attachment order from his bankers would be of no relevance vis-à-vis in the absence of demonstration by the respondent Authority with legally acceptable material to communicate such order, the contention taken that the representation to seek the relief as provided under Rule 159(5) of CGST Rules is belated, cannot be accepted. 28. In the facts of the present case, as noticed above, there was an obligation for the respondent Authority to have considered the representation of the petitioner under Rule 159(5) of the CGST Rules. Though learned counsel for the respondent Authority would submit that even if the procedural lapse as pointed out by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch has been conducted with respect to the petitioner. Admittedly, no proceedings have been initiated under Section 74 of CGST Act as against the petitioner till date. What must also be noticed is that though the statement of objections of the respondent Authority seeks to make out a case that the proceedings under Section 74 of CGST Act are sought to be instituted and in the context of which the provisional attachment under Section 83 of CGST Act is resorted to, the impending proceedings under Section 74 of the CGST Act cannot be a ground to exercise power under Section 83 for the provisional attachment. If the only ground made out in the statement objections and the very order of attachment at Annexure-A is the proceedings under Section 74 of the CGST Act, even if there are other proceedings that may be considered to be pending against the petitioner as long as the proceedings under Section 74 are not initiated by issuing a show-cause notice, the order of attachment purportedly relating to the proceedings under Section 74 cannot be upheld. The respondent Authority cannot be permitted to contend that any other proceedings contemplated under Section 83 of CGST Act have been initia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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