HC lifts Provisional GST assessment as no Section 73 & 74 proceedings were pending

Mahavir Enterprise Vs State of Gujarat (Gujarat High Court)

Provisional assessment order lifted as no proceedings were pending under Section 73 and 74 of the CGST Act

Hon’ble High Court of Gujarat in its order has directed Assistant Commissioner of Sales Tax (Respondent No. 4) to lift the provisional attachment of the property of M/s Mahavir Enterprise (Appellant) under Section 83 of the Central Goods and Services Tax Act, 2017 (CGST Act).

The powers as mentioned in Section 83 ibid can only be exercised in case of pendency of proceedings under Section 62 or 63 or 64 or 73 or 74 of the CGST Act.

Noted, no proceedings were pending neither under Section 73 nor Section 74 on the date on which the order under Section 83 was passed by the Respondent No. 4.

Further directed the Respondent No. 4 to state on affidavit the circumstances under which the order of provisional assessment has been passed.

FULL TEXT OF THE GUJARAT HIGH COURT ORDER /JUDGEMENT

Learned AGP Trupesh Kathiriya for respondent – State has placed on record a copy of the remarks by the Assistant Commissioner of State Tax, Unit-60, Surat – respondent No. 4. From the said remarks, it appears that no proceedings under either Sections 73 or 74 were pending on the date of order passed for the provisional attachment of the property of the petitioner under Section 83 of the GST Act. It is needless to say that the powers under Section 83 of the GST Act with regard to provisional attachment could be exercised only during pendency of proceedings either under sections 62 or Section 63 or Section 64 or Section 67 or Section 73 or Section 74. Hence, prima-facie the exercise of powers under Section 83 of the GST Act appears to be arbitrary and dehors the said provision. Under the circumstances respondent No. 4 is called upon to state on affidavit as to under what circumstances the impugned order of attachment was passed.

Put up on 02.09.2021.

In the mean time, the respondent No. 4 is directed to lift the provisional attachment forthwith, if not done so far.

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