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TMI Blog2024 (11) TMI 1398X X X X Extracts X X X X X X X X Extracts X X X X ..... led. According to the petitioners, they were thus forced to close down their business in the year 2022. Ext. P1 show cause notice was issued to the petitioners on 04.05.2023, calling upon the petitioners to show cause regarding the following:- "8.1 the Input Tax Credit of Rs. 8,59,16,757/- (Rupees Eight Crores, Fifty Nine Lakhs, Sixteen Thousand, Seven Hundred and Fifty-Seven only) availed by M/s SR Traders on the strength of fake invoices, as discussed above, should not be declared fake and inadmissible and recovered under sub-section (1) of Section 74 of the CGST Act, 2017, read with Section 20 of the IGST Act, 2017; 8.2 interest payable on 8.1 above, should not be demanded and recovered from them, under Section 50 of the CGST Act, 2017 read with Section 20 of the IGST Act, 2017; 8.3 for the said violation at 8.1, penalty should not be imposed upon them under Section 74 read along with Section 122 (1) (vii) of the CGST Act, 2017 and Section 20 of the IGST Act, 2017." The aforesaid show cause notice is pending adjudication. Through Ext. P2 series of proceedings dated 10.03.2023/13.03.2023, orders were issued by the Additional Director General, Directorate General of GST Int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nications to the 1st respondent, praying that the orders of provisional attachment may be lifted. However, the 1st respondent did not favour the petitioners with any reply and instead, proceeded to issue Ext. P6 series of orders, again provisionally attaching the properties belonging to the petitioners which were already subjected to orders of attachment through Ext. P2 series of orders. The petitioners are thus before this Court, challenging Ext. P6 series of orders, principally, on the ground that the 1st respondent has no jurisdiction, whatsoever, to issue such orders after the expiry of the period prescribed in Sub-section (2) of Section 83 of the CGST/SGST Acts. 2. Sri. Mayankutty Mather, the learned Senior Counsel appearing for the petitioners, on the instructions of Adv. Nikitha Susan Paulson would vehemently contend with reference to the provisions contained in Section 83 of the CGST/SGST Acts that, an order of provisional attachment cannot extend beyond the period satisfied in Sub-section (2) of Section 83 of the CGST/SGST Acts. He contends that, if the 1st respondent is permitted to pass fresh orders of provisional attachment after the period specified in Sub-section (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T Acts. Learned Senior Counsel also referred to the judgment of a learned Single Judge of the Calcutta High Court in Amazonite Steel Pvt. Ltd v. Union of India; 2020 SCC OnLine Cal 3279, in support of his contention that Ext. P6 series of orders, being not different in content from Ext. P2 series of orders, would have to be set aside on that ground alone. Learned Senior Counsel submits that though the Calcutta High Court had conceded the power of the authorities to pass a fresh order after the expiry of the initial period prescribed in Sub-section (2) of Section 83 of the CGST/SGST Acts, the said judgment did not consider the provisions of Rule 159 of the CGST/SGST Rules or to the analogous provisions in Section 281B of the Income Tax Act, 1961, where again the time limit has been set for the period for which orders of provisional attachment would continue. It is submitted that though the provisions of Section 281B of the Income Tax Act contemplate an extension after the initial period of attachment, there is no provision in the CGST/SGST Acts which enables the extension of the period of attachment and on analysis of the wordings used in Sub-section (2) of Section 83 of the CGST/SG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intention behind the incorporation of such a provision is evident, the Court must lean in favour of an interpretation that would effectuate the intention of the Parliament and any other interpretation which would defeat the intention of the Parliament must be avoided. Learned Senior Standing Counsel also referred to a Division Bench judgment of the Gujarat High Court in Shrimati Priti W/o. Anil Amrutlal Gandhi v. State of Gujarat Thro' Assistant Commissioner & 1; 2011 SCC OnLine Guj 1869 to contend that a contention similar to the contention taken in this writ petition had been rejected by the Gujarat High Court while considering the analogous provisions in Section 45 of the Gujarat Value Added Tax Act. It is submitted that the Court had categorically held that there is nothing in the provision under consideration (in that case) which would indicate that a fresh order of attachment could not be passed after the expiry of the period prescribed in the provision in question. Learned Senior Standing Counsel further submits that though the provisions of Section 83 of the CGST/SGST Acts were extensively considered by the Supreme Court in Radha Krishnan Industries (supra), the Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in such manner as may be prescribed. (2) Every such provisional attachment shall cease to have effect after the expiry of a period of one year from the date of the order made under sub-section (1)." The provisions of Section 83 of the CGST/SGST Act were amended with effect from 1.1.2022 and now read as follows:- "83. Provisional attachment to protect revenue in certain cases.- (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 sub-section (1A) of section 122, in such manner as may be prescribed. (2) Every such provisional attachment shall cease to have effect after the expiry of a period of one year from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is supported by the plain meaning of the words used. As can be seen from the provision of Section 83 (2) of the CGST/SGST Acts, an order of provisional attachment under Sub-section (1) of Section 83 will cease to have effect after the expiry of the period of one year from the date of the order made under Sub-section (1). As distinct from the provisions of Section 281B of the Income Tax Act, 1961, the provisions of Section 83 (2) of the CGST/SGST Acts do not even provide for the extension of the period of provisional attachment. Therefore, it must be held that on the plain meaning of the words used in Sub-section (2) of Section 83 of the CGST/SGST Acts, an attachment cannot extend beyond the period specified in Sub-section (2) of Section 83. In paragraph 42 of Radha Krishnan Industries (supra) it was observed:- "42. Under sub-section (2) of Section 83, a provisional attachment ceases to have effect upon the expiry of a period of one year of the order being passed under sub-section (1) " The contention of the learned Senior Standing Counsel that after the amendment the order can continue even after final orders are passed has no bearing on the question as to whether such an ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aphs 49 & 50 of the report). The provisions, therefore, require strict interpretation. 9. The learned Senior Standing Counsel appearing for the Revenue may be justified in contending that it is necessary that the law is equipped to deal with persons who engage in fraudulent activities to avoid the payment of tax legally due from them or engage in activities which would result in wrongful loss of revenue to the State Exchequer. However, it is not the duty of the Court to change the plain meaning of the statute and concede to the Revenue a right or authority which was never in the contemplation of the Legislature. Policy making is not the duty of the Court and the Court must interpret the law as it finds it. In C.A. Abraham v. ITO, (1961) 41 ITR 425, the Supreme Court held:- "6. The Legislature has expressly enacted that the provisions of Chapter IV shall apply to the assessment of a business carried on by a firm even after discontinuance of its business, and if the process of assessment includes taking steps for imposing penalties, the plea that the Legislature has inadvertently left a lacuna in the Act stands refuted. It is implicit in the contention of the appellant that it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 949 observed:- ".....It may seem hard that a cunningly advised taxpayer should be able to avoid what appears to be his equitable share of the general fiscal burden and cast it on the shoulders of his fellow citizens. But for the courts to try to stretch the law to meet hard cases (whether the hardship appears to bear on the individual taxpayer or on the general body of taxpayers as represented by the Inland Revenue) is not merely to make bad law but to run the risk of subverting the rule of law itself. Disagreeable as it may seem that some taxpayers should escape what might appear to be their fair share of the general burden of national expenditure, it would be far more disagreeable to substitute the rule of caprice for that of law. The most famous warning in the history of our fiscal law is constituted by Rex v. Hampden, Ship-Money Case (1637) 3 St.Tr. 826. It could be strongly argued that it was contrary to fiscal equity that the financial burden of providing warships (or their money equivalent) for the defence of the whole realm should fall exclusively on the inhabitants of maritime towns and districts, to the exoneration of inland citizens: yet such, it seems, was the law of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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