2025 (9) TMI 48 - HC - GST

Authorities cannot repeatedly re-impose provisional bank attachments without statutory power; repeated renewals impermissible where statute allows no extension

Smt. Lalita Versus Union of India And Another

HC held that authorities lack power to repeatedly re-impose provisional attachments absent statutory authority, following the Supreme Court ratio that ... Validity of second provisional attachment order - initial provisional attachment order ceases, by reason of efflux of a year from the date of its issuance - power of authorities to impose the provisional attachment time and again - HELD THAT:- In light of the ratio laid down by the Supreme Court in Kesari Nandan Mobile [2025 (8) TMI 992 - SUPREME COURT], no doubt remains with regard to the power of the authorities to impose the provisional attachment time and again. The Supreme Court has clearly held that when the statute does not provide for an extension, renewal, re-issuance, revival, the same cannot be done by the authorities and such an action would amount the executive overreaching the statute. The impugned order dated May 1, 2025 attaching the bank account of the petitioner for the 4th time is quashed and set aside. The authorities are directed to immediately de-freeze the bank account of the petitioner within three days from date. Petition disposed off. ISSUES PRESENTED AND CONSIDERED 1. Whether a revenue authority may issue repeated or successive provisional attachment orders under Section 83(1) of the Central Goods and Services Tax Act, 2017 after an earlier provisional attachment has ceased to have effect by efflux of one year under Section 83(2). 2. Whether issuance of a fresh provisional attachment order premised on substantially the same grounds as a previously lapsed order is permissible in the absence of any statutory provision authorising renewal, re-issuance or extension. 3. The appropriate remedy where a bank account has been provisionally attached repeatedly in violation of the statutory scheme governing provisional attachment. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Power to issue repeated provisional attachment orders under Section 83 CGST Act Legal framework: Section 83(1) confers power on revenue authorities to provisionally attach property to protect revenue; Section 83(2) provides that such provisional attachment ceases to have effect after one year from its issuance (subject to the statute's terms). The statutory scheme distinguishes provisional attachment (a pre-emptive protective measure) from recovery proceedings available under other provisions. Precedent treatment: The Court follows the binding exposition of law by the Supreme Court in Kesari Nandan Mobile, which examined whether a second provisional attachment can be issued after the initial order has lapsed by efflux of time and answered the question negatively. Interpretation and reasoning: The Court accepts the Supreme Court's reasoning that (a) there is no statutory conferment of power to renew or re-issue a provisional attachment after lapse; (b) allowing renewal would render Section 83(2) otiose and defeat the legislative choice of a one-year temporal limit; (c) issuing a fresh attachment on substantially the same grounds would undermine the statutory safeguard and enable abuse of power; and (d) provisional attachment is intended as a pre-emptive protective device, not a tool for recovery beyond the statutory period. Ratio vs. Obiter: The holding that renewal/re-issuance of a lapsed provisional attachment by the executive is impermissible is ratio decidendi as applied by the Court. Observations that the legislature could have provided for renewals (as in other statutes) are explanatory and supportive but not dispositive beyond the statutory scheme at issue. Conclusion: Repeated provisional attachment orders, including issuance of a fresh order after the earlier order has ceased by operation of Section 83(2), are not permissible under the CGST Act; such action amounts to executive overreach and is unlawful. Issue 2 - Validity of fresh provisional attachment premised on substantially the same grounds Legal framework: Principle that statutory safeguards must be given effect (ut res magis valeat quam pereat); administrative action cannot be used to circumvent a statutory limit by doing indirectly what is statutorily prohibited. Provisional attachment must be justified within the statutory period and cannot be converted into an instrument of recovery. Precedent treatment: The Court adopts the Supreme Court's application of principles that (i) a fresh order on substantially the same grounds after lapse frustrates the protection in subsection (2); and (ii) the maxim that an act not permitted directly cannot be accomplished indirectly applies to bar such renewals. Interpretation and reasoning: The Court reasons that issuing successive orders in the guise of 'renewal' without statutory authority would allow continuous de facto attachment despite the statutory cut-off; absent a change in circumstances or statutory sanction, continuing attachments would be contrary to due process and the legislative design. Ratio vs. Obiter: The conclusion that a fresh attachment on substantially the same grounds is impermissible is ratio where the factual matrix demonstrates repetition; commentary on comparative statutes and policy is obiter but persuasive. Conclusion: A fresh provisional attachment based on the same grounds as a lapsed order is unlawful and cannot be sustained where the statute does not permit extension or renewal. Issue 3 - Remedy where provisional attachment has been repeatedly imposed contrary to statutory scheme Legal framework: Judicial power under Article 226 to quash administrative orders that are ultra vires the statute and to grant consequential relief, including directions to de-freeze bank accounts improperly attached. Precedent treatment: The Court follows the remedial direction given in Kesari Nandan Mobile, which directed de-freezing of bank accounts affected by impermissible provisional attachments upon production of the judgment. Interpretation and reasoning: Given the declaratory and prohibitory ratio that repeated provisional attachments are not authorised, the appropriate remedial step is immediate quashing of the impugned order and direction for restoration of the status quo (making the bank account operable) within a short, specified time frame to prevent ongoing prejudice to the affected person. Ratio vs. Obiter: The grant of relief (quashing and direction to de-freeze forthwith) flows directly from the ratio and is a necessary consequential order; procedural observations regarding alternative recovery mechanisms under the statute are explanatory. Conclusion: The impugned provisional attachment is quashed and set aside; the authority is directed to de-freeze the bank account immediately (within the time fixed by the Court), as a necessary consequence of the finding that repeated attachments contravene Section 83. Cross-references and synthesis 1. Issues 1 and 2 are interlinked: both derive from reading Section 83(1) and (2) together and from the interpretive principle that statutory temporal limits cannot be circumvented by administrative practice. The Court applies the Supreme Court's authoritative interpretation to hold that neither renewal nor re-issuance after lapse is tenable. 2. Issue 3 is consequential upon Issues 1 and 2: once repeated or fresh attachments after lapse are held unlawful, judicial relief by quashment and de-freezing is appropriate and restorative, not punitive. Final disposition The impugned provisional attachment order that effected the fourth consecutive attachment of the bank account is quashed and set aside; the revenue authority is directed to de-freeze and make the account operable within a short specified period. The writ petition is disposed of accordingly.