TMI Blog2022 (5) TMI 1418X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 83 of the TNGST Act may suggest that, if the Commissioner is of an opinion that, for the purpose of protecting the interest of the Government Revenue, he can invoke Section 83 of the TNGST Act and to attach the property provisionally including the bank account of the assessee. On what basis, the Commissioner has decided to invoke Section 83 to go for a provisional attachment before which, whether the Commissioner has formed an opinion to do so, before forming such opinion, what are all the tangible material available before him or placed before him, so as to enable him to form such an opinion, all these aspects have not been even indicated in the order of provisional attachment. The order of provisional attachment made by the first respondent dated 20.12.2021, shall not stand in the legal scrutiny. Therefore, it is liable to be interfered with, accordingly, it is set aside. As a sequel, the consequential order, informing the petitioner by the respondent Bank authorities dated 30.12.2021 is also set aside - It is made clear that, this order, setting aside the provisional attachment order and the consequential Bank communication in respect of these two cases, shall not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 83 of the Act, the Bank i.e., the respondents referred to above i.e., R6 and R7 R8 issued communication on 30.12.2021, informing the petitioners that in view of the provisional attachment order under Section 83 dated 20.12.2021 from the first respondent i.e., the Additional Chief Secretary / Commissioner of Commercial Tax, to attach the accounts of the petitioners, the current account numbers of the petitioners have been freezed and no debit transaction would be allowed till the provisional attachment is lifted by the said authority. 7. Aggrieved by the said action on the part of the 1st respondent, which culminated in the communication of the Bank authority dated 30.12.2021, the petitioners moved these writ petitions with the respective prayers. 8. Heard Mr.Nithyaesh Natraj, learned counsel appearing for the petitioners, who would submit that, no doubt, under the Act, the first respondent is empowered to invoke Section 83 for making an order of provisional attachment of movable and immovable properties of the assessees, which includes the Bank account. 9. However, in the case in hand, according to the learned counsel, before invoking Section 83, the first respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt of India in Radhakrishnan case (cited supra) subsequently has been followed by this Court in W.P.No.32 of 2021 in the matter of M/s.Mutharamman Co. vs. The Principal Additional Director General, Directorate General of GST Intelligence (DGGI), Chennai and others dated 05.10.2021. In the said judgment, a learned Judge of this Court, according to the learned counsel for the petitioner, having discussed this issue threadbare after having taken note of the finding given by the Hon'ble Supreme Court of India in Radhakrishnan case (cited supra), was pleased to set aside the provisional attachment order in that case under Section 83 of the Act and given six weeks time to the respondent/Revenue to complete the assessment. 13. The learned counsel for the petitioner would further submit that, the said order of the learned Single Judge was appealed by the Revenue before the Hon'ble Division Bench of this Court in W.A.No.3048 of 2021. In the said writ appeal, while passing order on 21.12.2021 in the matter of The Principal Additional Director General DGGI, Chennai Zonal Unit and another Vs. M/s. Mutharamman Co., the Hon'ble Division Bench of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detail in the order to be passed under Section 83 of the TNGST Act, and in this regard, the learned Special Government Pleader, would submit that, if the file is produced, that would reveal the reasons as to on what basis, such an opinion was formed by the Commissioner before invoking Section 83 of the TNGST Act. 17. Therefore, at the threshold, according to the learned Special Government Pleader, the order impugned cannot be assailed on the reasons that the forming of opinion must have been on the basis of tangible material available with, as to how he formed an opinion should be stated in the order itself. 18. The learned Special Government Pleader would further submit that, insofar as the mandatory guidelines prescribed by the Hon'ble Supreme Court in Radhakrishna's case (cited supra) is concerned, though the said judgment, in respect of those guidelines, is binding all other authorities including this Court, under what circumstances, that judgment was passed, has to be looked into, he contended. 19. In this Context, the learned Special Government Pleader would further add that, in that case, the preliminary objection was raised by the State Counsel to invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule(5), seeking the lifting of the provisional attachment and if such an application was filed, certainly the Commissioner would have considered the same and if ultimately, the Commissioner rejected such a plea to be made by the assessee under Sub-Rule(5) of Rule 159 of the Rules, then only he can come before this Court invoking Article 226 of the Constitution of India. 23. Therefore, the learned Special Government Pleader would contend that, in the present case, since the petitioner has approached this Court by filing the writ petition without filing an application under Sub- Rule (5) of Rule 159 of the Rules, on that ground, the writ petition can be rejected as not maintainable because the guidelines fixed in the Radhakrishna's case (cited supra) by the Hon'ble Supreme Court may not be applicable to the present facts of the case, as the petitioner has straightaway approached this Court to file the writ petition, whereas, in Radhakrishna's case (cited supra), it was factually found that the petitioner/assessee in that case could not file any appeal because, the Appellate Tribunal was not constituted. 24. I have considered the aforesaid rival submissions m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial that the assessee is likely to defeat the demand, if any, and that therefore, it is necessary so to do for the purpose of protecting the interest of the government revenue. (vi) The expression necessary so to do for protecting the government revenue implicates that the interests of the government revenue cannot be protected without ordering a provisional attachment; (vii) The formation of an opinion by the Commissioner under Section 83(1) must be based on tangible material bearing on the necessity of ordering a provisional attachment for the purpose of protecting the interest of the government revenue; (viii) In the facts of the present case, there was a clear non-application of mind by the Joint Commissioner to the provisions of Section 83, rendering the provisional attachment illegal; (ix) Under the provisions of Rule 159(5), the person whose property is attached is entitled to dual procedural safeguards: (a) An entitlement to submit objections on the ground that the property was or is not liable to attachment; and (b) An opportunity of being heard; There has been a breach of the mandatory requirement of Rule 159(5) and the Commissioner was clearly m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, certainly this Court without hesitation, can come to a conclusion that, the said criterion fixed by the Hon'ble Supreme Court in Radhakrishna's case (cited supra) has not been met in the present case by the Commissioner, who passed the order under Section 83 of the Act. 30. The Commissioner in the impugned order under Section 83, merely says, in order to protect the interest of the Revenue and in exercise of the powers conferred under Section 83 of the TNGST Act, I Thiru.K.Phanindra Reddy, I.A.S, Additional Chief Secretary / Commissioner of State Taxes, Chennai 600 005 hereby provisionally attach the aforesaid account. 31. On what basis, the Commissioner has decided to invoke Section 83 to go for a provisional attachment before which, whether the Commissioner has formed an opinion to do so, before forming such opinion, what are all the tangible material available before him or placed before him, so as to enable him to form such an opinion, all these aspects have not been even indicated in the order of provisional attachment. 32. This kind of exercise of power under Section 83, which, in the words of the Hon'ble Supreme Court, is a draconian one, ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner that, within one week time as provided under Sub Rule (5), on 23.12.2021, a detailed objections and request has been made to withdraw the attachment orders issued under Section 83 of the TNGST Act. However, the said objection cum appeal / application made by the petitioner as against the order of provisional attachment as contemplated under Rule 159 (5) has not been considered so far. 37. Therefore, in this case, it cannot be stated that the petitioner without taking a chance, by making an application under Rule 159 (5) of the Rules, has approached this Court, therefore, on that ground, the writ petitions can be rejected as not maintainable. 38. Instead, in this case as stated supra, the petitioners did approach the first respondent by filing an application / appeal / objection on 23.12.2021, which, for all practical purposes can be treated as an application / appeal within the meaning of Rule 159 (5) of the Rules. Therefore, in this regard, the objection raised by the learned Government Pleader is liable to be rejected and accordingly, it is rejected. 39. However, in respect of cases of this nature, where if the Commissioner or any other authority, who exercis ..... 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