2022 (2) TMI 997 - HC - GST

GST authorities cannot attach personal property of LLP partners as LLP is separate taxable entity under Section 83

M/s UTKARSH ISPAT LLP Versus STATE OF GUJARAT

Gujarat HC quashed provisional attachment orders under GST Act Section 83. The court held that tax authorities cannot attach personal property of LLP ... Provisional attachment of multiple properties - factory premises - plant and machinery - bank accounts including the fixed deposits - whether the respondent No.3 could have provisionally attached the property owned by Shri Niraj Jaydev Arya (one of the partners of the LLP) in exercise of power under Section 83 of the Act, 2017? - Applicability of Section 90 of GST Act - HELD THAT:- The respondent No.3, having realized that it is only the property belonging to a taxable person that can be provisionally attached under Section 83 of the Act and the partner of an LLP not being a taxable person in the case on hand, thought fit to take the aid of Section 90 and Section 137 resply of the Act for the purpose of provisionally attaching a property owned by the partner of the LLP. Sub-section (84) of Section 2 of the Act, 2017 defines the term “person” to include an individual, a Hindu Undivided Family, a company, a firm, a limited liability partnership, etc. Therefore, the Act recognizes a firm as a dealer and as a person. The legislature having treated an LLP as a taxable entity, distinct from the individual partners constituting it, it was not open for the respondent No.3 to provisionally attach the immovable property owned by a partner of the firm - This Court is of the view that the respondent No.3 was wholly unjustified in provisionally attaching a personal property owned by a partner of the firm under Section 83 of the Act, 2017. Whether the respondent No.3 was justified in provisionally attaching the stock lying at the factory premises and the attachment of sundry debtors? - HELD THAT:- The authority should ensure that the attachment does not hamper the normal activities of the taxable person. It has been clarified that the raw materials and input required for the production or finished goods should not normally be attached by the department - In the case on hand, it is not approved that 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. The Form GST DRC – 22 for attachment of the stock lying at the factory premises dated 25th November 2021, the Form GST DRC – 22 for attachment of the sundry debtors (M/s. Utkarsh Bars Private Limited) dated 26th November 2021 and the GST DRC – 22 for attachment of the immovable property of Shri Niraj Jaydev Arya (one of the partners of the firm) dated 27th November 2021 are hereby quashed and set aside - this writ application succeeds in part. Issues Involved:1. Provisional attachment of properties under Section 83 of the CGST Act, 2017.2. Attachment of properties owned by a partner of the LLP.3. Attachment of stock lying at the factory premises.4. Attachment of sundry debtors.Detailed Analysis:1. Provisional Attachment of Properties under Section 83 of the CGST Act, 2017:The writ applicant, a registered partnership firm, challenged the provisional attachment of its properties by the GST Department under Section 83 of the CGST Act, 2017. The attachments included factory premises, plant and machinery, bank accounts, fixed deposits, sundry debtors, and immovable property of a partner. The court noted that Section 83 allows for provisional attachment to protect government revenue during the pendency of proceedings under specific sections of the Act. The court emphasized that the property to be attached must belong to a 'taxable person,' defined under Section 2(107) of the Act. The court found that the respondent No.3 had wrongfully invoked Section 90 and Section 137 of the Act to attach the partner's property, as these sections pertain to the liability of partners and offences by companies, not provisional attachment under Section 83.2. Attachment of Properties Owned by a Partner of the LLP:The court examined whether the respondent No.3 could attach the property owned by a partner of the LLP under Section 83. It was noted that Section 90 fixes the liability of partners for the firm's tax dues, and Section 137 addresses offences by companies and the vicarious liability of partners. However, the court clarified that these sections do not authorize the provisional attachment of a partner's personal property under Section 83. The court reiterated that only the property of the 'taxable person,' i.e., the LLP, could be attached. The court cited the Supreme Court's decision in Kapurchand Shrimal vs. Tax Recovery Officer, which held that the manager of a Hindu Undivided Family could not be treated as the assessee for recovery purposes when the assessment was against the family. Similarly, the court held that the partner of an LLP is not a taxable person, and the attachment of the partner's property was unjustified.3. Attachment of Stock Lying at the Factory Premises:The court addressed the provisional attachment of the stock lying at the factory premises. It referred to the guidelines issued by the Central Board of Indirect Taxes and Customs, which state that provisional attachment should not hamper the normal business activities of the taxable person. The guidelines specifically mention that raw materials and finished goods should not normally be attached. The court found that the attachment of the stock, which was already pledged to the bank, would bring the business to a standstill. Therefore, the court quashed the attachment of the stock lying at the factory premises.4. Attachment of Sundry Debtors:The court also considered the attachment of sundry debtors, specifically M/s. Utkarsh Bars Private Limited. Similar to the stock, the court noted that the attachment of receivables, which were pledged to the bank, would disrupt the business operations. The court referred to the guidelines that emphasize minimal disruption to the business activities of the taxable person. Consequently, the court set aside the attachment of the sundry debtors.Conclusion:The court quashed and set aside the provisional attachments of the stock lying at the factory premises, the sundry debtors, and the immovable property of the partner of the firm. All other properties remained under provisional attachment in accordance with the law. The writ application was disposed of accordingly.