TaxTMI 
TaxTMI 
2023 (2) TMI 537
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....en preferred. 3. The petitioner as a registered person is liable to pay GST on his taxable supplies by paying the tax in cash, or by utilizing Input Tax Credit (ITC). The tax paid on the input transactions is allowed as ITC under Section 16 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as "the CGST Act") and ITC so allowed on Input transactions can be utilized for discharging the GST liability on the transaction of the outward supplies. 3.1 It is the say of the petitioner that since the inputs in the raw-materials like M.S. scraps utilized by the petitioner are tax paid is been availing the ITC benefits of the taxes paid on the input/materials like M.S. scraps supplied to it by the registered persons under their tax invoices. The GST officers investigated in respect of certain suppliers of materials like M.S. scrap. The inputs that those persons were involved in passing on ITC on tax invoices issued by them without actually supplying tax paid materials under such invoices. It is averred that some of such suppliers who has sold and supplied to the petitioners during the period from May, 2019, the business premises of the petitioner had been searched ....
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....ered the normal business activities of the petitioner. No reply was given by the respondent authorities although the petitioner's representatives that consistently pursued the matter. Petitioner's financial conditions is going from bad to worse; once again requested the 3rd respondent in writing vide application dated 21.04.2022 and requested the authority concerned to lift the provisional attachment of the FDs and the current accounts of the bank. The said been also forwarded to the Chief Commissioner of State GST at Ahmedabad, the Special Commissioner of State GST at Ahmedabad and also to the Additional Commissioner of State GST (Enforcement) at Ahmedabad. No reply was given by any of these authorities, and therefore, he approached this Court by preferring Special CA No.10659 of 2022 (Hon'ble Mr. Justice A.J.Desai and Hon'ble Mr. Justice Bhargav D. Karia). The Court disposed of the petition by a following directions: "Having heard learned advocate Mr. Paresh Dave with learned advocate Mr. Pankaj D. Rachchh for the petitioners as well as having considered the prayers made in the petition and the judgement delivered by Co-ordinate Bench of this Court dated 27.01.2022 in Sp....
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....e GIDC plots are easily transferable and are sold and bought in the market. The bank also grants loan against the mortgaged on such plots. Aggrieved by this entire rejection, the petitioner is before this Court seeking following reliefs: "(A) That Your Lordships may be pleased to issue a Writ of Mandamus, or any other appropriate writ, order or direction, directing Respondent Nos. 3 and 2 herein to allow the Petitioners to make use of funds lying by way of Fixed Deposits and bank accounts (listed at Annexure-"A") with the banks thereby quashing and setting aside, or modifying appropriately, the GSTDRC- 22 dated 25.11.2021 and letter dated 16.07.2022 for provisionally attaching and continuing the above Fixed Deposits and Current accounts with the banks; (B) That Your Lordships may be pleased to issue a Writ of Mandamus, or any other appropriate writ, order or direction, directing Respondent Nos. 3 and 2 herein to accept factory land of the Petitioner firm or Residential Plots of the Petitioner No. 2 as a security in lieu of Fixed Deposits and the money lying as balance in the Petitioner's three Current accounts with the banks and thereupon lifting provisional a....
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....the petitioner firm shall remain under provisional attachment in accordance with law. 4.2 The petitioner firm addressed two communications on 28.03.2021 and 21.04.2022 on the Office of the respondent, where the firm had shown its inclination to have the provisional attachment of the 3 Current Accounts and 24 Fixed Deposits maintained by it in the various banks to be lifted. It approached this Court by way of Special CA No.10659 of 2022 where the Court directed the authorities to decide the applications within a period of four weeks. 4.3 The communication of 24.06.2022 indicates the inclination of the petitioner to have land bearing Plot No. 702+717, 718 and 719 situated at the address given in the communication to be provisionally attached in lieu of Fixed Deposits and the Current Accounts that continued to remain provisionally attached. The petitioner firm vide another communication addressed to the respondent on 24.06.2022 itself, has shown its inclination to have the Fixed Deposits and Current Accounts to be provisionally attached. Both these communications would reflect, according to the respondent, that the petitioner firm was inclined to have the factory land provisiona....
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..... v. The Petitioner Firm has proposed to have its residential Plot situated at Rev. Sr. No. 49/IP/3, Plot No. 7,8,9,10 & 11, "Maruti Park", Nr. 150 Ft. Ring Road, Opp. H.P. Petrol Pump, Ronki, Dist- Rajkot- 360003 be attached as a security in-lieu of its Fixed Deposits and Current Accounts maintained with the various other Banks. The afore-mentioned proposal cannot be accepted as the residential Plot is of the personal ownership of the Petitioner No. 1 and the same cannot be attached as per the judgment dated 27.01.2022 passed in Special Civil Application No. 188 of 2022, whereby the Hon'ble Court has quashed aside the very action of the Respondent authorities of attaching the very same afore-mentioned personal property belonging to the Petitioner No. 1. Therefore, the fresh proposal to have the said residential property being reattached provisionally would be in violation in the afore-mentioned Judgment and Order. Moreover, guideline no. 3.4.3 prescribes that provisional attachment can be made only of the property belonging to the taxable person against whom the proceedings is mentioned under section 83 of the Act are pending. The Petitioner Firm has been regarded as ....
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....y movable property including bank account belonging to the taxable person when has been attached, the same can be released when the taxable person offers in lieu of it any other immovable property, if the same is sufficient to protect the interest of the revenue and such immovable property should be of the value not less than the tax amount in dispute. The same should be free from any charges, liens, mortgaged or encumbrance, the property's tax also needs to be fully paid up and the same is not to be involved in any legal dispute. The original title deeds and other necessary information relating to the properties for the satisfaction of the concerned officer shall be produced before it by the taxable person. What can be noticed by this Court is that the amount of tax as shown in form GST-DRC-22 dated 25.11.2021 is Rs.31,02,53,631/- where of course, the penalty of matching amount and the interest of Rs.6.78 Crores making it total Rs.68.83 Crores. Going by this circular of CBIC dated 23.02.2021, the immovable property's value should be not less than the tax amount in dispute. What is being presently offered by the petitioner is the land ownership of petitioner No.1, having its addres....
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.... Explanation.--For the purposes of this section,-- (i) the expression "aggregate turnover" shall include all supplies made by the taxable person, whether on his own account or made on behalf of all his principals; (ii) the supply of goods, after completion of job work, by a registered job worker shall be treated as the supply of goods by the principal referred to in section 143, and the value of such goods shall not be included in the aggregate turnover of the registered job worker; (iii) the expression "special category States" shall mean the States as specified in sub-clause (g) of clause (4) of article 279A of the Constitution." 20 Section 24 of the Act reads thus: "24. Compulsory registration in certain cases.- Notwithstanding anything contained in sub-section (1) of section 22, the following categories of persons shall be required to be registered under this Act,-- (i) persons making any inter-State taxable supply; (ii) casual taxable persons making taxable supply; (iii) persons who are required to pay tax under reverse charge; (iv) person who are required to pay tax under sub-section (5) of section 9....
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....take the aid of Section 90 and Section 137 resply of the Act for the purpose of provisionally attaching a property owned by the partner of the LLP. 23 The moot question is whether Section 90 of the Act has any application to the case on hand. 24 Section 90 of the Act is nothing, but the very same principle of law, as enunciated under Section 25 of the Partnership Act. Section 25 of the Partnership Act reads thus: "25. Liability of a partner for acts of the firm.-Every partner is liable, jointly with all the other partners and also severally, for all acts of the firm done while he is a partner." 25 In the case of Her Highness Maharcmi Mandalsa Devi vs. H. Ramnarain Private Ltd. reported in 65 B.L.R. 31, it has been laid down by the Supreme Court that a partnership firm is to be treated as a corporate body only for the purpose of Order XXX of the Code of Civil Procedure. The legal fiction created by Order XXX cannot be carried too far. The partnership firm has no legal entity. The persons, who are individually called partners, are collectively called a firm, and the name under which their business is carried on is called the firm name. Therefore, a suit against the ....
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....o.3 to provisionally attach the immovable property owned by a partner of the firm. 30 In the aforesaid context, a reference is made of the decision of the Supreme Court in the case of Kapurchand Shrimal vs. Tax Recovery Officer, Hyderabad and others [AIR 1969 SC 682] wherein the Supreme Court has held as under: "5. The scheme of the Income-tax Act, 1961, is to treat the assessee failing to pay the tax due within the period prescribed a defaulter. The Income-tax Officer may, where the assessee is found to be in default, issue a certificate for recovery and forward it to the Tax Recovery Officer specifying the amount of arrears due from the assessee. The amount due may be recovered by resort to any one or more of the four modes prescribed by Sec. 222 of the Act. If the defaulter fails to comply with a notice issued by the Tax Recovery Officer requiring the defaulter to pay the amount within fifteen days from the date of the service of the notice, proceedings for recovery may be taken against the assessee for recovery of the tax. But under the scheme of the Act and the Rules, the assessee alone may be treated in default. The Act and the Rules contemplate that the notice fo....
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....ied in provisionally attaching the personal property owned by the partner of the firm under Section 83 of the CGST Act, as she is not a taxable person for being the partner of the firm. 9. We noticed from the guideline issued by the Central Board of Indirect Taxes and Customs (CBIC) dated 23.02.2021 that the movable property, when is attached, the taxable person can offer in lieu of such movable property, any other immovable property which is sufficient to protect the interest of the revenue. It is one thing for the Court to hold that there is a fetter on the powers of the officer concerned in attaching the properties which is not of the taxable person. When it comes to offering the immovable property, it is one of the partners, who though is not held to be a taxable person by the Court, it is offering that property which is unencumbered with a clear title and which is sufficient to protect the interest of the revenue. It is also incidental to be noted that both the spouses are the partners of the firm. This immovable property is also of a value not less than the tax amount in dispute. There is nothing which is come on the record on the part of the revenue to show that this is n....