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TaxTMI 
TaxTMI 
2021 (8) TMI 519
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..... 1322 OF 2021 dated June 6, 2020 is filed in Writ Petition No. 2127 of 2021. The prayers in the interim application read as follows: - (a) That this Hon'ble Court be pleased to modify its order dated 02.03.2021 and the direction given in paragraph 6 of the said order dated 02.03.2021 that "the remaining amount of 90% continuing under debit freeze which shall be subject to outcome of the appeal or such order that may be passed by the appellate authority" be deleted. (b) That this Hon'ble Court be pleased to quash and set aside the impugned attachment order dated 01.12.2020 issued by Respondent No.2 and de-freeze the balance amount of 90% kept in debit freeze vide order dated 02.03.2021 passed by this Hon'ble Court. ....
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....reveal that the petitioner was accused of claiming fraudulent refund under Section 54 of the CGST Act. It is also noted therefrom that the respondent no.2 was given to understand by the Dongri Police Station, Mumbai (vide correspondence dated November 27, 2020) that upon a written request being made, the said bank account having Rs. 5,20,13,134/- had been temporarily frozen by the respondent no.3. 5. The petitioner mounted a challenge to the said order dated December 1, 2020 on the ground that the condition precedent for provisional attachment of a bank account, as referred to in Section 83 of the CGST Act, was non-existent. Since no proceedings against the petitioner were pending under Sections 62 or 63 or 64 or 67 or 73 or 74 of the CG....
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....e, we find that the order in original is appealable before Commissioner (Appeals) subject to payment of 10% of the demand. Since petitioner has a statutory right of filing appeal against the order in original, to make such right meaningful, we direct that provisional attachment of the aforesaid bank account of the petitioner shall be withdrawn to the extent of 10% of the credited amount as on today with the remaining amount of 90% continuing under debit freeze, which shall be subject to outcome of the appeal or such order that may be passed by the appellate authority. 7. Stand over to 20th April, 2021." 7. Availing the leave granted by the order dated March 2, 2021, the petitioner carried the order dated February 12, 2021 in an ....
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.... order dated February 12, 2021, since carried in appeal which is pending, the respondents are justified in not lifting the order of provisional attachment because new facts of the revenue being defrauded by the petitioner have been unearthed. Mr.Jetly, by referring to the reply affidavit of the respondent no.2 to the additional affidavit of the petitioner, more particularly paragraphs 5 to 8, contended that investigations against the petitioner are in progress and that further proceedings in terms of Section 74 of the CGST Act are in contemplation; in view thereof, it would hit the interest of the revenue hard if relief claimed by the petitioner is granted. 10. In Radha Krishan Industries (supra), an order of provisional attachment was c....
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....tax, interest, fine, fee and penalty arising from the impugned order as is admitted. In addition, under clause (b), ten per cent of the remaining amount of tax in dispute arising from the order has to be paid in relation to which the appeal has been filed. Upon the payment of the amount under sub-Section (6) the recovery proceedings for the balance are deemed to be stayed. Thus, in any event, the order of provisional attachment must cease to subsist. The appellant, having filed an appeal under Section 107, is required to comply with the provisions of sub-Section (6) of Section 107 while the recovery of the balance is deemed to be stayed under the provisions of sub-Section (7). As observed hereinabove and under Section 83, the order of provi....
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....of jurisdictional fact. Proceedings under Section 73 had been initiated against the petitioner for reclaiming the erroneous refund, which was earlier effected on its prayer. The order of provisional attachment was made not during pendency of any proceedings under Sections 62 or 63 or 64 or 67 or 73 or 74 of the CGST Act but was made in view of contemplation of proceedings under Section 73 thereof. From its inception, i.e., December 1, 2020, the order of provisional attachment was not at all a valid order. The show-cause notice having been issued on January 13, 2021 under Section 73(1) of the CGST Act, i.e., almost 45 days after the order of provisional attachment was made, the latter suffered from an error of jurisdictional fact in that, as....