Case Law Details

Case Name : Piyush Shamjibhai Vasoya Vs Union of India (Gujarat High Court)
Appeal Number : R/Special Civil Application No. 16437 of 2020
Date of Judgement/Order : 27/01/2021
Related Assessment Year :

Piyush Shamjibhai Vasoya Vs Union of India (Gujarat High Court)

Indisputably, in the case on hand, no proceedings under Section 62 or Section­ 63 or Section ­64 or Section ­67 or Section ­73 or Section ­74 of the Act have been initiated or pending against the writ ­applicant. In the absence of pendency of any such proceedings referred to above, the respondent no.2 could not have invoked Section­ 83 of the Act for the purpose of provisional attachment. Assuming for the moment that something has surfaced in the course of any inquiry or investigation against the writ ­applicant as regards some business transaction with any other individuals, the same by itself will not confer jurisdiction to the respondent no.2 to invoke the Section­ 83 of the Act. The language of Section­ 83 of the Act is plain and simple. In the absence of any proceedings pending as on date against the writ ­applicant under the provisions of the GST Act as referred to under Section­ 83 of the Act, the order of provisional attachment could not have been passed.

In such circumstances referred to above, we are left with no other option to quash and set aside the impugned order of provisional attachment. However, we clarify that in future if any proceedings are initiated as referred to in Section­ 83 of the Act and if the authority deems fit, then he may proceed to invoke the Section­ 83 of the Act in
accordance with law. However, as on date, the order of provisional attachment cannot continue.

FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT

1. By this writ ­application under Article­226 of the Constitution of India, the writ ­applicant has prayed for the following reliefs:­

8(A) be pleased to issue a writ of certiorari or any other writ or direction quashing and setting aside the attachment order passed by the respondent no.2 and be further pleased to direct the respondents to de­freeze/detach the Current Bank Account No.3785553187 of the petitioner with the Central Bank of India, Rajkot Main Branch form provisional attachment under section­83 of the Central Goods and Services Tax At, 2017;

(B) pending admission and final hearing of the petition, be pleased to direct the respondents to de­freeze/ detach the Current Bank Account No.3785553187 of the petitioner with the Central Bank of India, Rajkot Main Branch from provisional attachment under Section 83 of the Central Goods and Services Tax Act, 2017 on terms and conditions as this Hon’ble Court may deem fit;

(C) be pleased to dispense with the filing of the requisite Court due to Global Covid­19 Pandemic. The petitioner undertakes to pay and affix the same as and when directed by this Hon’ble Court;

(D) be pleased to pass any other and further order as this Hon’ble Court may deem fit interest of justice;

(E) Award Costs.

2. The controversy involved in the present litigation is in a very narrow compass. It appears from the materials on record that the writapplicant is a Proprietor of a Proprietory Firm running in the name and style of “M/s. Sky Corporation”. The said firm mainly acts as a commission agent at the Agricultural Produce Market Committee, Gondal. The firm also holds a valid license issued by the market committee as per Section­27 of the Gujarat Agricultural Produce Markets Act, 1963 [ for short ‘the GAPMC’].

3. It appears that the respondent no.2 thought fit to pass an order of provisional attachment of the bank account of the writ­applicant in exercise of his power under Section­83 of the CGST Act, 2017. This action prima­facie appears to have been taken as an offshoot of some action taken by the authority concerned under the Act against few other individuals who may be involved in some manner or the other with the writ­applicant in the business. We do not propose to go any further in this regard.

4. In the afore­said context, the short point falling for our consideration is whether the respondent no.2 could have invoked the Section­83 of the Act, 2017 for the purpose of passing an order of provisional attachment or not?

5. We have heard Mr. Manan Paneri, the learned counsel appearing for the writ­applicant and Mr. Devang Vyas, the learned Additional Solicitor General of India appearing for the respondents.

6. Section­ 83 of the Act, 2017 reads thus:­

SECTION 83. Provisional attachment to protect revenue in certain cases. — (1) Where during the pendency of any proceedings under section 62 or section 63 or section 64 or section 67 or section 73 or section 74, 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 in such manner as may be prescribed.

7. Indisputably, in the case on hand, no proceedings under Section 62 or Section­ 63 or Section ­64 or Section ­67 or Section ­73 or Section ­74 of the Act have been initiated or pending against the writ ­applicant. In the absence of pendency of any such proceedings referred to above, the respondent no.2 could not have invoked Section­ 83 of the Act for the purpose of provisional attachment. Assuming for the moment that something has surfaced in the course of any inquiry or investigation against the writ ­applicant as regards some business transaction with any other individuals, the same by itself will not confer jurisdiction to the respondent no.2 to invoke the Section­ 83 of the Act. The language of Section­ 83 of the Act is plain and simple. In the absence of any proceedings pending as on date against the writ ­applicant under the provisions of the GST Act as referred to under Section­ 83 of the Act, the order of provisional attachment could not have been passed.

8. In such circumstances referred to above, we are left with no other option to quash and set aside the impugned order of provisional attachment. However, we clarify that in future if any proceedings are initiated as referred to in Section­ 83 of the Act and if the authority deems fit, then he may proceed to invoke the Section­ 83 of the Act in accordance with law. However, as on date, the order of provisional attachment cannot continue.

9. In the result, this writ ­application succeeds and is hereby allowed. The impugned communication at Page­24, Annexure­ C to this writ application is hereby quashed and set aside. The attachment is ordered to be lifted. The bank shall permit the writ ­applicant to operate his bank account.

9. Mr. Vyas would submit that the proceedings under Section ­79 of the Act, 2017 have been initiated against the writ ­applicant and they are pending as on date. We may only say that if such proceedings have been initiated and are pending, the same may continue in accordance with law. We do not express any opinion on merits as regards the proceedings initiated under Section­79 of the Act, 2017.

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