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TMI Blog2024 (3) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... bility after adjustments alleging inupt tax credit. 4. The 1st respondent issued summons to the petitioner seeking for production of records. The petitioner appeared before the 1st respondent along with relevant records including the tax invoices of outward tax invoices and inward supply to bank statement and way bill etc., subsequently, the 2nd respondent issued Form GST DRC 01A, dated 28.04.2023, ascertaining the taxes to the tune of Rs. 7,85,36,006/-, directing the petitioner to pay the said amount along with the interest and penalty. It was alleged that the petitioner has availed benefit of Input Tax Credit from invoices issued from non-existing firms, beyond this there has been no further proceedings drawn by the respondents either by issuance of show cause notice or by any proceedings drawn under Section 73 or for that matter under Section 74 of the CGST Act. 5. Assailing the said order of provisional attachment issued by the respondent, the petitioner contends that before the issuance of the provisional attachment order, the respondents have not served the petitioner with any notice in Form ASMT-10. In the process, the petitioner was not provided with any notice calling fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said decision being too harsh. The same should be interfered with by this Court. 8. The learned Senior Counsel for the petitioner in the course of his submissions also contended that the impugned order on the part of the respondents is also bad in law for the reason that the order of provisional attachment under Section 83 has never been issued as such he was not intimated by any person inspite of the action of attachment, that he came to know before the attachment only from the bank authorities when the petitioner found it difficult to carry further transactions from the said account that they were informed about the provisional attachment by the respondent/Department. This according to the learned counsel for the petitioner was also in contravention to the provisions of Rule 159 of the CTST Rules 2017. He further submits that since the copy of the attachment was not served upon the petitioner, he cannot avail the remedy that is otherwise provided under Sub-Rule (5) of Rule 159. 9. The learned Senior Counsel for the petitioner also contended that the impugned order is also bad in law in as much as the same on being inconsonance to the provisions of section 83 of the CGST Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing reproduced hereunder: Section 83(1): Where, after the initiation of any proceeding under Chapter XII, Chapter XIV or Chapter XV, 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 subsection (1A) of section 122, in such manner as may be prescribed. Rule 159(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 order in FORM GST DRC-23. 13. After reproducing the aforesaid provisions of law, it would be relevant at this juncture also necessary to take note of the operative part of the impugned order. In order to protect the interests of revenue and in exercise of the powers conferred under section 83 of the CGST Act 2017, I Smt.V Sangeetha, Principal Commissioner, Hyderabad GST Commissionerate, here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chment could be termed as a very drastic and far reaching power. Such power should be used sparingly and only on substantive weighty grounds and reasons. [3] The power of provisional attachment under Section 83 of the Act should be exercised by the authority only if there is a reasonable apprehension that the assessee may default the ultimate collection of the demand that is likely to be raised on completion of the assessment. It should, therefore, be exercised with extreme care and caution. [4] The power under Section 83 of the Act for provisional attachment should be exercised only if there is sufficient 11 W.P.No.12360 of 2022 material on record to justify the satisfaction that the assessee is about to dispose of wholly or any part of his / her property with a view to thwarting the ultimate collection C/SCA/9822/2020 ORDER of demand and in order to achieve the said objective, the attachment should be of the properties and to that extent, it is required to achieve this objective. [5] The power under Section 83 of the Act should neither be used as a tool to harass the assessee nor should it be used in a manner which may have an irreversible detrimental effect on the business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of provisional attachment are passed in order to protect the interest of the Government revenue, no other reasons are assigned by the fourth respondent in the impugned orders of provisional attachment. When sub-Rule (5) of Rule 159 of the Rules specifically provides for filing objections against the orders of provisional attachment, the contention that the reasons for ordering provisional attachment were recorded in the Note File and that there is no need to extract the same or state the same in the provisional order of attachment, in the considered opinion of this Court, cannot stand for judicial scrutiny. The Hon'ble Supreme Court, in the above referred judgment, also categorically ruled that the formation of opinion on the basis of tangible material which indicates the necessity to order provisional attachment to protect the interest of the Government revenue is mandatory. Unless reasons are recorded broadly, the assessee cannot be expected to file any objections under the provisions of sub-Rule (5) 13 of Rule 159 of the Rules. 16. In view of the aforesaid two decisions, i.e., the Division Bench of the Gujarat High Court and the Division Bench of Andhra Pradesh High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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