TaxTMI 
TaxTMI 
2022 (6) TMI 359
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....ect the interest of the Revenue", can be passed or not have been considered by this Court in the case of M/s.Sree Meenashi Industries Vs. The Additional Chief Secretary & Ors. [W.P.Nos.3079 & 3083 of 2022] 4. Relying upon the said case, wherein the order was passed on 16.02.2022, Mr.Nithyaesh Nataraj, learned counsel appearing for the petitioner would submit that, the said order in M/s.Sree Meenashi Industries (cited supra) was passed of-course following the dictum of the Hon'ble Supreme Court in the case of M/s.Radha Krishnan Vs. State of Himachal Pradesh & Ors. [Civil Appeal No.1155 of 2021]. Therefore, he would submit that, the issue raised in these writ petitions is fully covered by the order of this Court as well as the Hon'ble Supreme Court and hence, these impugned orders would not stand in the legal scrutiny. 5. However Mr.V.Sundareswaran, learned Senior Standing Counsel appearing for the Revenue would submit that, nowhere in the provisions i.e., Section 83 of the Act, it has been stated that, the detail reasons as to how the Revenue has come to the conclusion based on the tangible material has to be given. Therefore, since it is a format, under which, such a proc....
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....he said account of any other account operated by the aforesaid entry or its directors on the same PAN without the prior permission of this department. Sd/- (MAYANK KUMAR) (PRINCIPAL ADDITIONAL DIRECTOR GENERAL)" (Emphasis supplied) Similar orders have been passed in respect of other Bank accounts, which are challenged in these writ petitions. 10. In the impugned orders, we can easily find that only one line reason has been stated that, in order to protect the interest of the Revenue, the powers conferred on the official concerned under Section 83 of the Act was invoked for provisionally attaching the bank accounts of the petitioner. 11. This kind of one line reason to say that, "in order to protect the interest of the Revenue", cannot be permitted to be accepted because of the dictum of the Hon'ble Supreme Court in the case of M/s.Radha Krishnan (cited supra). 12. In para 72 of M/s.Radha Krishnan case (cited supra), the principle, as has been culled out, has been enumerated, which has been extracted in M/s.Sree Meenashi Industries case (cited supra) also. To have a better understanding and quick reading of the said decision, the following text of M/s.Sree Meenashi Indu....
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..... 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. (vi) The expression "necessary so to do for protecting the government revenue" implicates that the interests of the government revenue cannot be protected without ordering a provisional attachment; (vii) The formation of an opinion by the Commissioner under Section 83(1) must be based on tangible material bearing on the necessity of ordering a provisional attachment for the purpose of protecting the interest of the government revenue; (viii) In the facts of the present case, there was a clear non-application of mind by the Joint Commissioner to the provisions of Section 83, rendering the provisional attachment illegal; (ix) Under the provisions of Rule 159(5), the person whose property is attached is entitled to dual procedural safeguards: (a) An entitlement to submit objections on the ground that the property was or is not liable to attachment; and (b) An opportunity of being heard; There h....
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....hose property is attached. 29. If we apply the said 4 clauses in the facts of the case, certainly this Court without hesitation, can come to a conclusion that, the said criterion fixed by the Hon'ble Supreme Court in Radhakrishna's case (cited supra) has not been met in the present case by the Commissioner, who passed the order under Section 83 of the Act. 30. The Commissioner in the impugned order under Section 83, merely says, in order to protect the interest of the Revenue and in exercise of the powers conferred under Section 83 of the TNGST Act, I Thiru.K.Phanindra Reddy, I.A.S, Additional Chief Secretary / Commissioner of State Taxes, Chennai - 600 005 hereby provisionally attach the aforesaid account. 31. On what basis, the Commissioner has decided to invoke Section 83 to go for a provisional attachment before which, whether the Commissioner has formed an opinion to do so, before forming such opinion, what are all the tangible material available before him or placed before him, so as to enable him to form such an opinion, all these aspects have not been even indicated in the order of provisional attachment. 32. This kind of exercise of power under Section 83, ....
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.... of the present case, this has been specifically dealt with in the order of M/s.Sree Meenashi Industries case (cited supra) at paragraph 28 to 35, which are quoted herein above. 15. Therefore these cases also are nowhere superior to the said case in M/s.Sree Meenashi Industries case (cited supra) and therefore the principle of the Supreme Court in M/s.Radha Krishnan case (cited supra) certainly can be invoked in this case also and if it is applied, the necessary corollary would be that, the impugned orders would not stand in the legal scrutiny. 16. Though an argument was advanced by the learned Standing Counsel appearing for Revenue that based on the tangible materials, which are available with the Revenue, they can very well sustain the order of attachment, this Court however feels that, the present order shall not stand in the legal scrutiny as it does not reveal any such tangible material. Therefore, if these orders are set aside, it does not preclude the Revenue to proceed further by once again invoke Section 83 of the Act and this has been indicated in para 42 of the order in M/s.Sree Meenashi Industries case (cited supra), which reads thus: "42. It is made clear that, thi....