TMI Blog2024 (3) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... y held that the Principal Commissioner had the power to issue orders of provisional attachment, protecting the interest of the government revenue. It has been emphatically held by Gujarat High Court in the case of M/S ANJANI IMPEX VERSUS STATE OF GUJARAT [ 2020 (10) TMI 760 - GUJARAT HIGH COURT] and Andhra Pradesh High Court also in the case of M/S ARHAAN FERROUS AND NON FERROUS SOLUTIONS PVT LTD VERSUS THE SENIOR INTELLIGENCE OFFICER [ 2022 (5) TMI 560 - ANDHRA PRADESH HIGH COURT] that once when Rule 159(5) provides for filing an objection, the person who intends to file an objection must know the reasons and grounds under which the order was passed, so that he can effectively file his objection and made the objections and grounds on the basis of which, the order of provisional attachment was passed. There are no doubt for the aforesaid reasons that the impugned order is un-sustainable and the same deserves to be and is accordingly set aside. Nonetheless, the right of the respondents stands reserved if they so want to pass a fresh order under Section 83 after framing of an opinion which may not be spell out in the order enabling the petitioner to avail the remedy available to him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of provisional attachment is un-just, arbitrary and with malafied intentions. The same has also not in conformity to the principles of natural justice and is liable to be set aside/quashed. 6. According to the learned counsel for the petitioner it was incumbent upon the Department to have first issued in Form GST ASMT 10, as is required his explanation. Should the respondents have resorted the proceedings drawn under Section 73 or under Section 74. Learned counsel for the petitioner relied upon the decisions of the Madras High Court in the case of M/s.Vadivel Pyrotech v. Assistant Commissioner 2022(10) TMI 784 Madras High Court , there was yet another decision from Madras High Court in the case of Amutha Metal Industries v. Deputy State Tax Officer 2022 (6) TMI 358 - Madras High Court, Madras High Court and in the case of Syska Led Lights Private Limited v. Union of India 2021 377 ELT 33 (Bom). 7. According to the learned counsel for the petitioner, the party is facing enormous inconvenience and difficulties as a consequence of the provisional attachment of the account. It was also the contention of the petitioner that even though the impugned order has passed as early as on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r shall form an opinion that for the purpose of protecting the interest of the Government Revenue, it is necessary to pass an order under Section 83 ordering provisional attachment. The said forming of opinion is missing from the impugned order. Therefore, the same is liable to be interdicted on this ground also. 10. Per contra, the learned Standing Counsel for the respondent/Department on the other hand opposing the petition submits that upon scrutiny of the return submitted by the petitioner, it has been reflected that the invoices on the basis of which the petitioner is said to have availed the benefit of ITC are all invoices which have been issued by fake and non-existing units and therefore, prima facie, it appears that the petitioner has wrongfully availed the ITC knowing fully well that it cannot had been availed. Referring to the invoices issued from M/s Hindustan Enterprises vs. K. enterprises Kolkata, the counsel for the Department contended that these are non-operating units so also the good which is reflected in the different invoices are only invoices which have been issued for the purpose of availing ITC and that infact, there has been no physical involvement of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/circumstances that compelled the Principal Commissioner to pass the order of provisional attachment. If we look at section 83, what is envisaged is upon initiation of any proceedings under Chapter XII, Chapter XIV or Chapter XV, the Commissioner has to make up an opinion that opinion is to be formed on the basis of the reasons which formed in the course of proceedings from the circumstances that prevailed in between etc., etc. If the opinions were not to be revealed and reflected in the order, the framers of law would have simply held that the Principal Commissioner had the power to issue orders of provisional attachment, protecting the interest of the government revenue. The very fact that the section provides for, moreover, to form an opinion before issuance of order of provisional attachment itself is sufficient enough to accept that it is required law that the order attachment in itself should disclose the reasons/circumstances and grounds which in the opinion of the Principle Commissioner required issuance of the order of provisional attachment. This view of the bench stands fortified from the decision of the Gujarat High Court in the case of M/s.Anjani Impex v. State of Guj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e equated with the attachment in the course of the recovery proceedings. [7] The authority before exercising power under Section 83 of the Act for provisional attachment should take into consideration two things: (i) whether it is a revenue neutral situation (ii) the statement of output liability or input credit . Having regard to the amount paid by reversing the input tax credit if the interest of the revenue is sufficiently secured, then the authority may not be justified in invoking its power under Section 83 of the Act for the purpose of provisional attachment. 16. We are of the view that none of the above referred conditions are fulfilled in the present case. 17. In the result, this writ application stands partly allowed. The relief with regard to the order in Form GST DRC- 01A is not granted, whereas the order of provisional attachment of immovable property under Section 83 of the Act is quashed and set aside . 15. Relying upon the said Division Bench decision of the Gujarat High Court, the Andhra Pradesh High Court also in the case of M/s.Arhaan Ferrous Non ferrous Solutions others v. Senior Intelligence Officer others, wherein the Andhra Pradesh High Court had referred to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order lacks reasons/grounds and circumstances on the basis of which the Principal Commissioner had formed an opinion that there was requirement for issuance of the order of provisional attachment. 17. We are fully endorsing the view of the two High Courts, wherein it has been emphatically held by both the High Courts that once when Rule 159(5) provides for filing an objection, the person who intends to file an objection must know the reasons and grounds under which the order was passed, so that he can effectively file his objection and made the objections and grounds on the basis of which, the order of provisional attachment was passed. We do not have any doubt for the aforesaid reasons that the impugned order is un-sustainable and the same deserves to be and is accordingly set aside. Nonetheless, the right of the respondents stands reserved if they so want to pass a fresh order under Section 83 after framing of an opinion which may not be spell out in the order enabling the petitioner to avail the remedy available to him under Rule 159(5) of the CGST Rules. 18. With the aforesaid observation and direction this writ petition stands allowed. Consequently, miscellaneous petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
