Utkarsh Ispat LLP Vs State of Gujarat (Gujarat High Court)
In the case on hand, HC do not approve the provisional attachment of the goods, stock and receivables, more particularly, when the entire stock and receivables have been pledged and a floating charge has been created in favour of the Kalupur Commercial Bank Limited for the purpose of availing the cash credit facility with the provisional attachment of the goods, stock and receivables the entire business will come to a standstill.
FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT
By this writ application under Article 226 of the Constitution of India, the writ applicant, a registered partnership firm, through one of its partners, has prayed for the following reliefs:
“a) To quash and set aside the following orders of provisional attachment of properties in FORM GST DRC-22 dated 25.11.2021, 26.11.2021 and 27.11.2021 issued by Respondent No.3 as the same being dehors the provisions of section 83 of the CGST Act, 2017:
(i) Form GST DRC 22 for attachment of Factory & Shed Dated 25/11/2021;
(ii) Form GST DRC 22 for attachment of Plant & machinery including 66 KVA Substation Dated 25/11/2021;
(iii) Form GST DRC 22 for attachment of stock lying at factory premises Dated 25/11/2021;
(iv) Form GST DRC 22 for attachment of Bank Current Accounts and FDs Dated 25/11/20 21;
(v) Form GST DRC 22 for attachment of Sundry Debtors (Utkarsh Bars Pvt. Ltd.) Dated 26/11/2021;
(vi) Form GST DRC 22 for attachment of immovable property of Mr. Niraj Jaydev Arya dated 27.11.2021;
(b) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the Respondent No.4 to allow the petitioner to utilize its drawing power and allow the petitioner to conduct business operations on the ground that the risk of respondent no.4 is sufficiently covered and secured;
c) To issue a writ of mandamus or any other appropriate writ, order or direction, as an ad-interim relief, to release the provisionally attached stock and the debtors so as to enable the petitioner to run his business smoothly and other ad-interim relief as the Court deems fit;
d) To issue order(s), direction(s), writ(s) or any other relief(s)) as this Hon’ble Court deems fit and proper in the facts and circumstances of the case and in the interest of justice;
e) To award Costs of and incidental to this application be paid by the Respondents.”
2 The facts giving rise to this writ application may be summarized as under:
3 The writ applicant is a limited liability partnership firm and is engaged in the business of procuring various type of M.S. Scrap used for the manufacturing of the TMT bars. The writ applicant is duly registered under the Goods and Services Tax Act. Its principal place of business is at Rajkot.
4 On 19th November 2021, the officials of the GST Department undertook search proceedings at the registered premises of the writ applicant and also at the residential premises of one of the partners namely Niraj Jaydev Arya under Sub-section (2) of Section 67 of the Central Goods and Services Tax Act, 2017 [for short, “the Act, 2017”]. The search proceedings were undertaken on the allegation that the writ applicant has availed Input Tax Credit on the basis of fake invoices issued by fictitious firms without any movement of goods by the said fictitious firms for the period of May 2019 till the date of the search proceedings.
5 It appears that during the pendency of the search proceedings, the respondent No.3 passed an order provisionally attaching multiple properties like the factory premises, plant and machinery and bank accounts including the fixed deposits. The respondent No.3 issued multiple Form GST DRC – 22 in relation to the attachment of the aforesaid properties. The multiple Form GST DRC – 22 came to be issued by the respondent No.3 in exercise of powers under Section 83 of the CGST Act, 2017.
6 The details of the properties which have been provisionally attached are as under:
