2022 (2) TMI 998

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....ect matter of challenge in the present writ-application is the action on the part of the respondent no.2 in passing three orders of provisional attachment of three individual bank accounts of the writ-applicant in exercise of powers under Section-83 of the CGST Act. The first order with respect to provisional attachment of a Current Account maintained with the Bank of India is at Page-76 of the paper-book. The second order with respect to provisional attachment of a Current Account maintained with the Kotak Mahindra Bank Ltd. is at Page-87 of the paper-book and the third order with respect to provisional attachment of a Current Account maintained with the ICICI Bank is at Page-109 of the paper-book. 4. Mr. Shah, the learned senior counse....

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....nt is draconian in nature and the conditions which are prescribed by the statute for a valid exercise of the power must be strictly fulfilled; 76.5 The exercise of the power for ordering a provisional attachment must be preceded by the formation of an opinion by the Commissioner that it is necessary so to do for the purpose of protecting the interest of the government revenue. Before ordering a provisional attachment the Commissioner must form an opinion on the basis of tangible material that the assessee is likely to defeat the demand, if any, and that therefore, it is necessary so to do for the purpose of protecting the interest of the government revenue. 76.6 The expression "necessary so to do for protecting the governm....

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....e original file or from the notings. Such satisfaction should be reflected in the very order passed by the authority. 6. The second limb of Mr. Shah's submission is that at a point of time, when the powers under section-83 of the Act came to be exercised, the proceedings of the search under Section-67 of the Act had already come to an end. He would submit that as on date, there are no proceedings pending. Mr. Shah says so because till this date, the Department has not even thought fit to issue any show-cause notice. In such circumstances, according to Mr. Shah, the orders of provisional attachment cannot remain in force. 7. Let Notice be issued to the respondents, returnable on 16.02.2022. Direct service to the respondents nos.2 to 5 ....