TaxTMI 
TaxTMI 
2022 (3) TMI 183
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....is writ-application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following reliefs:- "11(a) be pleased to issue a writ of Certiorari or a writ in the nature of certiorari or any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the petitioner's case and after going into the validity and legality thereof to quash and set aside (i) impugned orders dated 11.03.2021, 16.03.2021 and 12.10.2021 passed by respondent no.2 purporting to attach the bank accounts of the petitioner and (ii) impugned order dated 29.06.2021 passed by respondent no.2 in rejecting the representation filed by the petitioner; (b) be pleased to issue a wr....
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....ion 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 counsel would submit that before the Commissioner can proce....
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....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 government revenue" implicates that the interests of the government revenue cannot be protected witho....
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....mb 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 is permitted. The respondent no.1 shall be served at the earliest by E-mail. In the meantime, Mr. Dhaval Shah, the learned counsel ....
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....dent no.2 herein. The representation was considered under Rule 159(5) of the Rules, 2017 and ultimately came to be rejected. 6. Manifold contentions have been raised by Mr. Prakash Shah, the learned senior counsel appearing for the writ-applicant. One of the principal submissions of Mr. Shah is that if the entire amount lying in the three bank accounts is freezed, its going to very difficult for the writ-applicant to continue with his business. 7. When the matter was first taken up for hearing, we inquired with Mr. Shah whether his client would be ready and willing to furnish some tangible security so as to protect the interest of the revenue. The whole idea in putting this question to Mr. Shah was that upon furnishing of such tangible se....