TaxTMI 
TaxTMI 
2022 (3) TMI 183
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....the parties, the matter is taken up for final disposal. 2. By this 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 reje....
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....commodities. The writ-applicant is registered under the CGST Act. 3. The subject 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 ....
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....o order a provisional attachment of the property of the taxable person including a bank account 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 go....
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....uld submit that it is not just necessary for the concerned authority to point out such satisfaction from the 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.  ....
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.... it appears that as on date, the aggregate of Rs. 2,37,13,192=96 is lying to the credit of the writ-applicant in the three bank accounts. It also appears that after the three orders came to be passed under Section-83 of the Act, the writ-applicant filed a representation addressed to the respondent 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....
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....before this Court on oath by tomorrow that ultimately if any liability of the Company is fixed, they would discharge the same so far as the balance amount is concerned i.e. approximately 1.12 crore. 11. We dispose of this writ-application with a direction to the respondent no.2 to de-freeze the three bank accounts upon the writ-applicant furnishing a bank guarantee of Rs. 1.25 Crore and individual undertakings of the Directors of the company as above. 12. The bank guarantee shall continue till the statutory time period of all the three orders passed under Section-83 of the Act comes to an end. If the Department deems fit to continue with the provisional attachment or pass a fresh order, it may do so, but then, the bank guarantee shall....