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TMI Blog2024 (8) TMI 1540X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 28.05.2024 (hereafter the impugned order) passed by the Commissioner under Section 83 of the Central Goods and Services Tax Act, 2017 (hereafter the CGST Act) provisionally attaching the petitioner's bank Account No.915020013765104. 4. Mr. Ramesh Singh, learned senior counsel appearing for the petitioner has founded his challenge to the impugned order, essentially, on two fronts. First, he submits that the impugned order has been passed without the respondents initiating any other proceedings and the same is impermissible. He contends that although the summons under Section 70 of the CGST Act were issued but the same was posted after the impugned order was passed. Therefore, no proceedings could have been stated to have co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner has undertaken the exercise of examining the extent of investment in capital of the petitioner to conclude that if the bank accounts were not frozen, the interest of the revenue would not be protected. He further contended that it was necessary for the Commissioner to spell out the reasons for issuing the impugned order. According to him, it is necessary that the impugned order expressly records the reasons to believe as well as the tangible material on the basis of which such belief is formed. 7. We find no merit in the aforesaid contentions. The fact that the summons under Section 70 of the CGST Act was posted immediately after the date of the impugned order does not mean that the proceedings were not commenced prior to trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order is necessary to protect the interest of the Government revenue. Further, the said opinion must be based on tangible material. 11. The Supreme Court in Radha Krishan Industries v. State of Himachal Pradesh: (2021) 6 SCC 771 had in the context of provisions of Section 83 of the CGST Act concluded as under: "76. For the above reasons, we hold and conclude that: 76.1. 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). 76.2. The writ petition before the High Court under Article 226 of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner to the provisions of Section 83, rendering the provisional attachment illegal. 76.9. Under the provisions of Rule 159(5), the person whose property is attached is entitled to dual procedural safeguards: (a) An entitlement to submit objections on the ground that the property was or is not liable to attachment; and (b) An opportunity of being heard. There has been a breach of the mandatory requirement of Rule 159(5) and the Commissioner was clearly misconceived in law in coming into conclusion that he had a discretion on whether or not to grant an opportunity of being heard. 76.10. The Commissioner is duty-bound to deal with the objections to the attachment by passing a reasoned order which must be communicated to the tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout the taxpayer asking for the same. 14. In the present case, the impugned order records that the investigation has revealed that the petitioner had made suspicious and fraudulent payments to certain bank accounts and wrongfully availed and passed Input Tax Credit (hereafter ITC) to the extent of Rs.87,54,083/ -. The Show Cause Notice dated 20.06.2024 sets out in detail the allegations regarding wrongful availment of the ITC. It is alleged that the petitioner had availed of the ITC from two suppliers namely M/s Brighton Sales Inc. & M/s Caretech System. According to the department, the said suppliers were found to be non-existent. The petitioner allegedly availed of the ITC amount to Rs.87,54,083/- during the relevant period from the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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