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TMI Blog2023 (12) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Director General, DGGI, Guwahati, being bank account (Bank A/c No. 50200052826471) maintained with the respondent no. 6 (HDFC Bank Ltd., Kolkata). The main issues involved in this writ petition which require consideration are as hereunder: (i) Whether this Court has got territorial jurisdiction under Article 226 of the Constitution of India to entertain this Writ Petition challenging the impugned provisional attachment order dated 22.03.2023, under Section 83 of the CGST Act, 2017 passed by the Additional Director General, DGGI, Guwahati/respondent no. 1 making provisional attachment of bank account of Petitioner No. 1 which is a registered person at Kolkata maintained with the HDFC Bank, Kolkata? (ii) Whether in the facts and circumstances of the case respondent no. 1 has the jurisdiction to invoke Section 83 of the CGST Act for provisional attachment of bank account of the petitioner no. 1 without initiation of any proceeding or having pendency of any proceeding against the Firm/petitioner no. 1 which is a partnership firm in which respondent no. 3 is one of its partners against whom incriminating documents have been found in course of investigation of other entities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner submits that the order of provisional attachment dated March 22, 2023 would clearly indicate that the order of provisional attachment has not been issued in form GST DRC-22 and not provided to the RTP. 7. Petitioner submits that it would appear from statutory form being GST DRC- 22 that the jurisdictional Commissioner or his delegate would have to disclose the nature of proceedings pending as on the date of issuance of the provisional attachment. The impugned order dated March 22, 2023 does not disclose pendency of any proceeding under Chapters- XII, XIV and XV of the CGST Act. Petitioner submits that impugned order of provisional attachment is an order entailing adverse civil or evil consequences against any RTP or other persons under Section 122(1A) of the CGST Act. Therefore, the provisions and the form are to be followed strictly. The Form GST DRC-22 also requires details to be specified in case where the order is sought to be issued against a person specified in Section 122(1A) of the Act which is absent in the instant case according to the petitioner. 8. Petitioner submits that at the stage of final hearing of the writ petition, the desperate attempt was made on be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. Further, even a fraction of case of action accrued within the State, the Court of that state will have jurisdiction to entertain the petition. High Court will have jurisdiction if cause of action wholly or in part arises within the territorial limits and relies on the following judgments in support of its contention: (a) Rejendra Chingaravelu - (2010) 1 SCC 457 (para 9 & 10) (b) Om Prakash Srivastava Vs Union of India- (2006) 6 SCC 207 (para 7 & 8) (c) Radhey Shyam Pandey Vs Union of India in WPA 10668 of 2021 dated April 6, 2022 (para 5) (d) Nawal Kishore Sharma - (2014) 9 SCC 3239 (para 9 to 15) (e) Sri Pankar Panwar Vs Lalit Kala Ademi & Ors. reported in 2014 SCC Online Cal 14154 (para 3,23,28,34) 16. Petitioner submits that the impugned provisional attachment order dated March 22, 2023 passed under Section 83 of the CGST Act by the respondent no. 1 is absolutely illegal, arbitrary, perverse, contrary to law and wholly without jurisdiction and is liable to be quashed and/or set aside with a direction upon the respondents to immediately de-freeze the petitioner no. 1's bank account in question maintained with the respondent no. 6 (HDFC Bank Ltd., Kolkata). Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in support of his contention relies on the decision of the Hon'ble Delhi High Court in the case of Bombay Snuff Pvt. Ltd. -Vs- Union of India, reported [2006 (194) ELT 264 (Del.).] 20. The respondent submits that during the course of investigation in respect of M/s. Vishal Metal and Mining Ltd. and M/s. NRS Steel Traders by way of search at the declared Principal place of its Business at Kolkata, records and documents pertaining to the petitioner M/s. Arramva Corporation were also recovered and it was also found that the petitioner has the same Principal Place of business at Kolkata as of others. 21. Respondents further submit that the Petitioner No. 1 is a partnership firm and its two partners are Shri Om Sharma and Shri Vishal Jain. Om Sharma and Vishal Jain are holding various portfolios in multiple firms. Shri Vishal Jain is holding the post of Director in the company M/s. Vishal Metal & Mining Ltd. and is partner of M/s. NRS Steel as well as partner of M/s. Arramva Corporation. 22. Respondents submit that Shri Vishal Jain in his statement dated 02.02.2023 submitted that all the aforesaid firms are actually being operated by him either as Director or partner but is looked af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Tax Intelligence, Guwahati appointed under Section 3(d) of the CGST Act for initiation of action under Section 83(1) was based on tangible material bearing on the necessity of ordering a provisional attachment for the purpose of protecting the interest of the government revenue which could not have been done without ordering a provisional attachment. Before going to attachment of the petitioner's bank account the concerned authority has found that the petitioner is very much involved in the case of availing ITC without actual receipt of any goods from the fake/non-existent firms as well as issued ineligible ITC without any actual supply of goods as such it is opined for attachment of the bank account. 28. Respondents submit that in terms of Section 83 of the Act where after the initiation of any proceedings under Chapter XII, XIV and XV of the CGST Act the Commissioner is of the opinion that for the purpose of protecting the interest of the government revenue it is necessary so to do, he may, by order in writing, attach provisionally, any property including bank account belonging to the taxable person or any person specified in sub-section (1A) of Section 122 of the Act, in suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and as such action taken by the respondent authorities against the petitioners cannot be construed as without jurisdiction or bad under Section 83 of the said Act. 34. Respondents by relying on a decision of the Hon'ble Bombay High Court in the case of Bharat Parihar [2023 (75) GSTL 129 (Bom.)] submit that it has been categorically held that sub-section (1) of Section 83 empowers the Commissioner for the purpose of protecting the interest of the revenue to provisionally attach any property, including bank account belonging to the taxable person or "any person" specified in Section 122(1A) of the Act in such manner as may be prescribed. The Hon'ble High Court further held that Section 122 (1A) of the Act provides that any person who retains the benefit of a transaction covered under clause (i, ii, iv or x) of Section 121 (1) of the Act and at whose instance such transaction is conducted shall be liable to a penalty of a sum equivalent to the tax evaded or ITC availed of or passed on thus power conferred under Section 83(1) of the Act can be exercised in respect of a person, who may not be within the territorial jurisdiction of Maharashtra GST Authorities. 35. Respondents further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the bank account of the petitioner company was passed by the Principal Commissioner, CGST, Meerut Commissionerate who has no jurisdiction over the petitioner and the said judgment has not dealt with the power of the Directorate General of Goods and Services Tax who has pan India jurisdiction and as such the ratio of the said judgment is not applicable in the present case as the same has not dealt with the power of the Commissionerate who has jurisdiction over the petitioners and further the said order is a consent order. 39. Learned Advocate for the respondents distinguishes the decision of the Hon'ble Supreme Court in the case of Radha Krishan Industries reported in 2021 (6) SCC 771 relied upon by the petitioner by submitting that the jurisdiction of Directorate General of Goods and Service Tax, has not been dealt with in the said decision who has all India jurisdiction as well as the action taken by the respondent authorities in this case is very much within their jurisdiction the said decision is not applicable in the facts of the present case. Therefore, the Hon'ble Court may be pleased to dismiss the said writ petition for the interest of justice. 40. Before reachi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ... he shall be liable to pay a penalty of ten thousand rupees or an amount equivalent to the tax evaded or the tax not deducted under Section 51 or short-deducted or deducted but not paid to the Government or tax not collected under section 52 or short-collected or collected but not paid to the Government or input tax credit availed of or passed on or distributed irregularly, or the refund claimed fraudulently, whichever is higher. (1A) Any person who retains the benefit of a transaction covered under clauses (i), (ii), (vii) or clause (ix) of sub-section (1) and at whose instance such transaction is conducted, shall be liable to a penalty of an amount equivalent to the tax evaded or input tax credit availed of or passed on." "Rule 159 of the CGST Rules, 2017: 159. Provisional attachment of property ............................ ............................. (5) Any person whose property is attached may, [file an objection in FORM GST DRC-22A] to the effect that the property attached was or is not liable to attachment, and the Commissioner may, after affording an opportunity of being heard to the person filing the objection, release the said property by an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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