TMI Blog2021 (8) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... ently, in view of the fact that the impugned provisional orders are cryptic, unreasoned, non-speaking and laconic, the same deserve to be quashed. In so far as the apprehension of the respondents that in the event huge tax payments are to be raised as against the petitioner-assessees, the assessee may not make payment of the same causing loss to the Revenue is concerned, in the light of the undisputed fact that the proceedings under section 153A of the said Act of 1961 have already been initiated coupled with the fact that section 281 of the said Act of 1961, contemplates that any alienation of any property belonging to the petitioners would be null and void, in addition to the specific assertion made by the petitioner that they own and possess immovable property to the tune of more than Rs. 300 crores, the said apprehension of the respondents is clearly unfounded and without any basis and consequently the said apprehension of the respondents cannot be accepted.The petition is allowed. - W. P. No. 102272 of 2021 (T-IT). - - - Dated:- 12-8-2021 - S. R. Krishna Kumar J. For the Petitioners : M. V. Sheshachala , Senior Counsel, for Gangadhar J. M. and Praveen P. Tarikar , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tra, learned counsel for respondent Nos. 1, 2 and 5 submits that the impugned order satisfies and fulfils the requirements under section 281B of the said Act of 1961 and consequently, the impugned order does not warrant interference by this court in the present petition. 6. I have given my anxious consideration to the rival submissions and perused the material on record. 7. In Radha Krishan's case (supra), while dealing with the provisions contained in section 83 of the Himachal Pradesh Goods and Services tax Act, who are in para materia to that of the said Act of 1961, the apex court held as under (pages 260, 261, 262, 268, 276, 277 of 88 GSTR) : Now in this backdrop, it becomes necessary to emphasize that before the Commissioner can levy a provisional attachment, there must be a formation of 'the opinion' and that it is necessary 'so to do' for the purpose of protecting the interest of the Government revenue. The power to levy a provisional attachment is draconian in nature. By the exercise of the power, a property belonging to the taxable person may be attached, including a bank account. The attachment is provisional and the statute has contemplated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity in other words postulates a more stringent requirement than a mere expediency. A provisional attachment under section 83 is contemplated during the pendency of certain proceedings, meaning thereby that a final demand or liability is yet to be crystallized. An anticipatory attachment of this nature must strictly conform to the requirements, both substantive and procedural, embodied in the statute and the rules. The exercise of unguided discretion cannot be permissible because it will leave citizens and their legitimate business activities to the peril of arbitrary power. Each of these ingredients must be strictly applied before a provisional attachment on the property of an assessee can be levied. The Commissioner must be alive to the fact that such provisions are not intended to authorize Commissioners to make pre-emptive strikes on the property of the assessee, merely because property is available for being attached. There must be a valid formation of the opinion that a provisional attachment is necessary for the purpose of protecting the interest of the Government revenue. These expressions in regard to both the purpose and necessity of provisional attachment implicate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a position to recover the amount thereafter, in such a case only, however, on for mation of subjective satisfaction/opinion, the Commissioner may exercise the powers under section 45 of the VAT Act.'. . . 60. Now, it is in this backdrop that we proceed to a determination of whether the petition under article 226 was maintainable and if it was, whether Commissioner exercised, the powers under section 83 read with rule 159 in accordance with law. . . . For the above reasons, we hold and conclude that : (i) The Joint Commissioner while ordering a provisional attachment under section 83 was acting as a delegate of the Commissioner in pursuance of the delegation effected under section 5(3) and an appeal against the order of provisional attachment was not available under section 107(1) ; (ii) The writ petition before the High Court under article 226 of the Constitution challenging the order of provisional attachment was maintainable ; (iii) The High Court has erred in dismissing the writ petition on the ground that it was not maintainable ; (iv) The power to order a provisional attachment of the property of the taxable person including a bank account is draconian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and stay on the recovery of the balance as stipulated in those provisions, pending the disposal of the appeal. 8. As held by the apex court in the aforesaid decision, mere apprehension on the part of the respondents that huge tax demands are likely to be raised on completion of assessment is not sufficient for the purpose of passing a provisional order of attachment. It has also been held that apart from the fact that a writ petition under article 226 of the Constitution of India challenging the provisional attachment order was maintainable, having regard to the fact that the provisional attachment order of a property of a taxable person including the bank account of such person is draconian in nature and the conditions which are prescribed by the statute for the valid exercise of power must be strictly fulfilled, the exercise of power for order of provisional attachment must necessarily be preceded by formation of an opinion by the authorities that it is necessary to do so for the purpose of protecting the interest of Government revenue. Before the order of provisional attachment, the Commissioner must form an opinion on the basis of the tangible material available for attach ..... X X X X Extracts X X X X X X X X Extracts X X X X
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