Case Law Details
S K S Traders Vs Assistant Commissioner of State Tax and Others (Andhra Pradesh High Court)
Andhra Pradesh High Court held that continuation of order of attachment and Garnishee impermissible since petitioner has preferred an appeal against the assessment order and has paid 10% of the disputed tax as required under section 107 of the CGST Act.
Facts- The petitioner had suffered an order of assessment, under the A.P. Goods and Services Tax, 2017 (for short GST Act), issued by the 2nd respondent dated 13.01.2023. Under this order of assessment, the petitioner was declared to be liable to pay Rs.2,84,10,044/-. The 2nd respondent for recovery of the said amounts, had initiated proceedings whereby attachment order in FORM GST DRC – 22, dated 03.11.2022 and Garnishee notice in FORM GST DRC -13, dated 20.04.2023, were issued to respondents 3 to 5.
The petitioner contended that they have filed an appeal against the said order of assessment and had also paid 10% of the disputed tax, as required u/s. 107 of the Central Goods and Services Tax Act, 2017 and consequently, the orders of Garnishee and attachment would have to be raised.
The petitioner has approached this Court by way of the present writ petition, complaining inaction on the part of respondents 1 and 2 in lifting the said order of attachment and Garnishee and in considering the representation of the petitioner dated 07.07.2023, despite passage of more than one year.
Conclusion- Held that the petitioner has preferred an appeal and has paid 10% of the disputed tax, as required under Section 107 of the CGST Act, no further tax can be recovered from the petitioner, in pursuance of the order of assessment under appeal. In such circumstances, continuation of the order of attachment and Garnishee is clearly impermissible and against the provisions of Section 107 of the CGST Act. Thus, this writ petition is disposed of setting aside the order of attachment dated 03.11.2022 of the 2nd respondent and Garnishee notice issued by the 1st respondents 20.04.2023. There shall be no order as to costs.
FULL TEXT OF THE JUDGMENT/ORDER OF ANDHRA PRADESH HIGH COURT
Heard Sri J.N. Venkata Suresh Kumar, learned counsel appearing for the petitioner and learned G.P. for Commercial Tax for the respondents.
2. The petitioner had suffered an order of assessment, under the A.P. Goods and Services Tax, 2017 (for short GST Act), issued by the 2nd respondent dated 13.01.2023. Under this order of assessment, the petitioner was declared to be liable to pay Rs.2,84,10,044/-.
3. The 2nd respondent for recovery of the said amounts, had initiated proceedings whereby attachment order in FORM GST DRC – 22, dated 03.11.2022 and Garnishee notice in FORM GST DRC -13, dated 20.04.2023, were issued to respondents 3 to 5.
4. The petitioner had approached respondents 1 and 2, by way of a representation dated 07.07.2023, contending that the petitioner had filed an appeal against the said order of assessment and had also paid 10% of the disputed tax, as required under Section 107 of the Central Goods and Services Tax Act, 2017 and consequently, the orders of Garnishee and attachment would have to be raised.
5. The petitioner has approached this Court by way of the present writ petition, complaining inaction on the part of respondents 1 and 2 in lifting the said order of attachment and Garnishee and in considering the representation of the petitioner dated 07.07.2023, despite passage of more than one year.
6. In view of the fact that the petitioner has preferred an appeal and has paid 10% of the disputed tax, as required under Section 107 of the CGST Act, no further tax can be recovered from the petitioner, in pursuance of the order of assessment under appeal. In such circumstances, continuation of the order of attachment and Garnishee is clearly impermissible and against the provisions of Section 107 of the CGST Act.
7. Though, the relief sought is only a direction to dispose of the representation of the petitioner, dated 07.07.2023, there would be no point in driving the petitioner to go before respondents 1 and 2 for determination of a predetermined fact.
8. In the circumstances, this writ petition is disposed of setting aside the order of attachment dated 03.11.2022 of the 2nd respondent and Garnishee notice issued by the 1st respondents 20.04.2023. There shall be no order as to costs.
As a sequel, pending miscellaneous applications, if any, shall stand closed.
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