TaxTMI 
TaxTMI 
2022 (7) TMI 758
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.... Act, 2017 It is to inform that M/s. S.G. Industries (proprietor Sh. Varun Gupta) having principal place of business at B-19, Roop Nagar Industrial Area, Loni, Ghaziabad bearing registration number as 09ANFPG1119E1ZH and PAN ANFPG1119E is a registered taxable person under the Act. Proceedings have been launched against the aforesaid person under Section 67 and Section 74 of the said Act to determine the tax or any other amount due from the said person. As per information available with the department, it has come to my notice that the said person has a bank account in your bank having account no. 916010071529025. In order to protect the interests of revenue and in exercise of the powers conferred under Section 83 of the Act, I, Alok Jha, Commissioner, CGST, Ghaziabad hereby provisionally attach the aforesaid account. No debit shall be allowed to be made from the said account or any other account operated by the aforesaid person on the same PAN without the prior permission of this department. (ALOK JHA) Commissioner Copy to - M/s. S G Plastic Industries B-19, Roop Nagar Industrial Area, Loni, Ghaziabad." (3) Today learned Additional Solicitor General of India and ....
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....ed by issuance of Authorization for search at principal place of business of M/s. S. G.Plastic Industries and its inward suppliers under section 67 ibid, issuance of summons to and recording of statements under Section 70 ibid of Sh. Varun Gupta, proprietor of M/s. S.G. Plastic Industries under Section 69 ibid, determination of tax liability (ITC) of Rs.38.29 crores fraudulently taken on invoices of 17 major fake non-existent suppliers, provisional attachment of bank accounts has been legally done as per the provisons entailed in Section 83 ibid." (4) Despite being being repeatedly asked by us, learned ASGI and learned counsel for respondent no. 2 could not produce any opinion of the respondent no. 2 before this Court under Section 83 of the CGST Act, 2017 indicating that the Commissioner has recorded his opinion on some materials that it is necessary to attach the bank account of the petitioner to protect the interest of revenue. (5) We may refer to paragraph 48, 49, 66, 71 & 72 of the judgement of the Hon'ble Supreme Court in the case of Radha Krishan Industries vs. State of Himachal Pradesh, reported in 2021(48) G.S.T.L. 113(S.C.) which has explained the provision of Secti....
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.... opinion to an unguided subjective discretion of the Commissioner. The formation of the opinion must bear a proximate and live nexus to the purpose of protecting the interest of the government revenue. 49. By utilizing the expression "it is necessary so to do" the legislature has evinced an intent that an attachment is authorized not merely because it is expedient to do so (or profitable or practicable for the revenue to do so) but because it is necessary to do so in order to protect interest of the government revenue. Necessity postulates that the interest of the revenue can be protected only by a provisional attachment without which the interest of the revenue would PART D stand defeated. Necessity in other words postulates a more stringent requirement than a mere expediency. A provisional attachment under Section 83 is contemplated during the pendency of certain proceedings, meaning thereby that a final demand or liability is yet to be crystallized. An anticipatory attachment of this nature must strictly conform to the requirements, both substantive and procedural, embodied in the statute and the rules. The exercise of unguided discretion cannot be permissible because it will ....
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....terial change in circumstances. Another order of provisional attachment came to be issued by another Joint Commissioner. Therefore, it was the contention of the petitioner before the High Court that the subsequent order of provisional PART E attachment is in substance and effect an order reviewing the earlier order withdrawing the order of provisional attachment which was not permissible and therefore the subsequent order of provisional attachment is without jurisdiction. The High Court has not considered this aspect. Both the earlier and the subsequent orders of provisional attachment are on the same grounds. Therefore, unless there was a change in the circumstances, it was not open for the Joint Commissioner to pass another order of provisional attachment, after the earlier order of provisional attachment was withdrawn after considering the representations made by the petitioner. This is an additional ground to set aside the subsequent order of provisional attachment. PART E (E) Summary of findings 72 For the above reasons, we hold and conclude that (i) The Joint Commissioner while ordering a provisional attachment under section 83 was acting as a delegate of the Commissi....