TaxTMI 
TaxTMI 
2023 (11) TMI 350
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....eferred to as the 'CGST Act'). 2. The brief facts leading to the present petition are as follows:- 2.1. On 25.02.2020, the Superintendent of Central Excise, Vadodara conducted a search and seizure at the premises of the petitioner located at 2/3 Dharamnagar Village- Bholav, Bharuch and thereafter investigation in respect of evasion of GST was conducted. The petitioner was summoned and his statement was recorded. 2.2. On 09.06.2020, the present petitioner was arrested and later he was sent to the judicial custody. Mr. Dilip Babulal Jain was a promoter and existing director of Glamox Solution Private Limited ('GSPL' for short) which is a registered company engaged in the business of finding angel investor for its customers. Mr. Jain is also a promoter and primary partner in Grabdeal Advertisement and Tourism LLP ('GATL' for short) and also a sole proprietor of M/s. Genesis Group which are engaged in the business of providing other financial services such as advisory and consulting services as also in relation to the investment and capital market, derivate market, money market, commodity market, insurance market, real estate market, infrastructure, mutual fund, systematic inv....
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...., Section 3 of the Gujarat Protection of Interest of Depositors Act and Sections 4, 5, 6 and 7 of the Prize Chits and Money Circulation Schemes (Prohibition) Act, 1978. Mr. Dilip Babulal Jain was released on regular bail in connection with the offences under the GST Act by this Court by passing the order in Criminal Misc. Application No. 16486 of 2020. 2.8. The grievance on the part of the petitioner, made emphatically is that the offence is registered although the GST department itself is not clear whether any offence actually occurred or not. The documentary evidences, according to Mr. Jain are such that he would be surely acquitted and hence, there are no logical reasons for implicating him in the matter. The investigating agency is also acting highhandedly and in arbitrary manner. 2.9. According to the petitioner, the action of the respondent no. 2 of freezing the bank account by exercising the powers under Section 83 of the CGST Act is arbitrary and illegal. It is a case where the provisions of CGST Act are not applicable at all and the department is not sure whether the provisions would apply against the petitioners. Because of the attachment of the bank accounts, the p....
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....under the Act and the Rules seeking the same to be quashed and set aside. 3. Affidavit-in-reply is filed for and on behalf of the respondent no. 2 - Joint Commissioner having the office at the office of the Principal Commissioner, Central GST, GST Bhawan, Subhanpura, Vadodara which has denied all the allegations emphatically. 3.1. It is contended that information from the reliable sources was received that Mr. Dilip Jain, resident of Bharuch was running businesses in the name of Genesis Group, Grabdeal International, Grabdeal Advertisement and Tourism LLP, Glamox Solution Private Limited without obtaining registration under the Service Tax / GST and evading the huge amount of Service Tax and GST. 3.2. Based on the inputs received, it appeared that this person was running either a pyramid scheme or a similar type of scheme. Based on the intelligence, investigation was initiated against Mr. Jain and his firms and a search was conducted under Section 67(2) of the CGST Act at the premises located at Bholav, Bharuch on 25.02.2020 under the authorization issued by the Joint Commissioner, Vadodara-II Commissionerate. The documents were seized under INS-02. 3.3. During the cour....
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....ion 83(1) of the CGST Act, 2017. The investigation is in progress and as Mr. Jain has no intention to pay government dues, the respondent department under the powers vested vide Section 83(2) had sent letters 09.02.2021 to the bank directing to freeze the debit facility/withdrawal from these bank accounts for one year. 3.7. It is further the say of the respondent that the transactions worth Rs. 430 crores have been entered into and he had evaded Rs. 74 crores of GST/ Service Tax. This huge economic offence committed by him during his activities would make him liable to be punished under Section 132 of the CGST Act which are punishable under Sections 132(1)(i) and (iv) of the CGST Act, 2017 read with Section 132(5) of the CGST Act, 2017. 4. The rejoinder affidavit has been filed denying all these aspects and also further alleging that per-force he had been directed to admit the tax liability of Rs. 51 crores. 5. This Court has heard extensively learned Senior Advocate Mr. Nirupam Nanavati appearing with learned advocate Mr. Chetan Pandya for the petitioner and learned advocate Ms. Kruti Shah appearing for the respondent no. 1, 3 to 9 and learned Senior Standing Counsel Mr. ....
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....thout acceptance that service tax is payable, the gross amount shall be considered as inclusive of tax. Under Section 67(2) when new taxes are collected separately, the gross amount has to be considered to be inclusive of tax liability as value of taxable service plus service tax payable and this has been substantiated by the decision of the Apex court in case of Commissioner vs. Advantage Media Consultant [2009 (14) S.T.R. J49 (S.C).] 5.4. The attachment of the bank accounts by the order for afurther period of one year under Section 83 of CGST act passed on 09.02.2021 is also seriously challenged. Some of the decisions pressed into service to support this version of submissions are:- I. JSK and Sons vs. State of Gujarat [2020 (43) G.S.T.L. 154 (Guj.) II. Radha Krishan Industries vs. State of Himachal Pradesh [2021 (48) G.S.T.L. 113 (S.C.)] III. Amazonite Steel Private Limited vs. Union of India [2020 (36) G.S.T.L. 184 (Cal.)] 6. According to the learned senior standing counsel Mr Raval, investigation is in progress and the petitioner till date has not come forward to discharge the government dues and he also does not appear to have any intention to....
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.... of one year. 8.1. For appreciating this, apt would be to refer to the provision of law which needs its appreciation in the backdrop of factual details of search and seizure as also of initiation of criminal prosecution against the petitioner. 8.2. Section 83 is reproduced herein under for the better appreciation of the controversy in question. This Section provides that for the purpose of protecting the interest of government revenue, the provisional attachment of any property including bank account belonging to the taxable person as prescribed in this provision, is permissible. 8.3. Apt would be to refer and reproduce Section 83 of the CGST Act 2017:- "83. Provisional attachment to protect revenue in certain cases:- (1) Where after the initiation during the pendency of any proceedings under section 62 or section 63 or section 64 or section 67 or section 73 or section 74, Chapter XII, Chapter XIV or Chapter XV the Commissioner is of the opinion that for the purpose of protecting the interest of the Government revenue, it is necessary so to do, he may, by order in writing attach provisionally any property, including bank account, belonging to the taxable ....
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....he GST liability would be applicable on the amount of consideration received by him in his individual capacity. There is a joint venture also between him and the subscribers and the CBEC circular on the subject matter of service tax on the joint-venture is also said to have applied in case of the petitioner. Whereas according to the Petitioner, the business model of his is not attracting any service tax and the very initiation of process by the respondents is ill conceived. 9. Entertainment of the challenge to the merit is not desirable at this juncture at all as appropriate Authority would determine that aspect and statutory remedies would also demand address to such core issue at the relevant point of time. Therefore, this Court has chosen not to enter into the details of business model as explained in the statement of the petitioner and whether the transaction in money amounts to service attracting taxability under the Statute, except for the limited purpose of examining the apt exercise of powers under Section 83 of the Act prior to the finalization of assessment and raising of demand. Otherwise, let the same be agitated at an appropriate stage by the petitioner before the A....
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....g that the assessment/reassessment proceedings with the income tax department when it believes that such attachment is necessary to protect the interest of the revenue. The provisions of Section 281B of the Act is extracted to demonstrate that the provision of Section 83 has been framed along the identical line as Section 281B. The Court noticed that there are certain guidelines for making provisional attachment which are missing so far as Section 83 of the act is concerned and the balance in both the bank accounts being negligible, it did not continue the provisional attachment. 11. What has also been pressed into service before this Courtis the decision of the Apex Court in case of Radha Krishan Industries vs. State of Himachal Pradesh [2021 (48) G.S.T.L. 113 (SC)] where the Apex court has held that the nature of provisional attachment being a draconian power, exercised before finalization of assessment or raising of the demand, the same has to be exercised with due caution. It is provisional as an aid of something else and its purpose is to protect revenue. Its validity depends on strict observance of statutory preconditions. Formation of commissioner's opinion must approxima....
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....urisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field." (emphasis supplied) 26. Following the dictum of this Court in Whirlpool(supra), in Harbanslal Sahnia v Indian Oil Corpn. Ltd., this court noted that "7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. I....
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....s is a rule of policy, convenience and discretion; and (vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with. 28 These principles have been consistently upheld by this Court in Seth Chand Ratan v Pandit Durga Prasad (2003) 5 SCC 399, Babubhai Muljibhai Patel v Nandlal Khodidas Barot (1974) 2 SCC 706 and Rajasthan SEB v. Union of India (2008) 5 SCC 632, among other decisions. C.2 Provisional Attachment 29. At this stage, we will advert to relevant precedents outlining the contours of the power of provisional attachment and specifically, in the context of provisions worded similarly to Section 83 of the HPGST Act. 30. The decision of this Court in Raman Tech Process Engg Co and Anr v Solanki Traders 2008(1) R.C.R.(Civil) 195 was concerned with the power of a civil court under Order 38 Rule 5 of the CPC to order an attachment before judgment. In that case, proceedings had been institut....
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.... subjective satisfaction, absent any cogent or credible material, constitutes malice in law. It further outlined the principles for the exercise of the power: "52. [...] The order of provisional attachment before the assessment order is made, may be justified if the assessing authority or any other authority empowered in law is of the opinion that it is necessary to protect the interest of revenue. However, the subjective satisfaction should be based on some credible materials or information...It is not any and every material, howsoever vague and indefinite or distant, remote or far-fetching, which would warrant the formation of the belief. (1) The power conferred upon the authority under Section 83 of the Act for provisional attachment could be termed as a very drastic and far reaching power. Such power should be used sparingly and only on substantive weighty grounds and reasons. (3) The power of provisional attachment under Section 83 of the Act should be exercised by the authority only if there is a reasonable apprehension that the assessee may default the ultimate collection of the demand that is likely to be raised on completion of the assessment. It....
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....' and if the assessee will not be able to pay its dues after assessment. 34 Similar to the decisions of the Gujarat High Court, other High Courts have recognized the restrictive nature of the power of provisional attachment under Section 83 of the SGST Act and the need for it to be based on adequate substantive material. The High Courts have also underscored the extraordinary nature of this power, necessitating due caution in its exercise. 35 The Delhi High Court, in Proex Fashion Private Limited v Government of India32 outlined the following statutorily stipulated conditions for the invocation of Section 83 of the SGST Act: ("i) Order should be passed by Commissioner; (ii) Proceeding under Section 62 or 63 or 64 or 67 or 73 or 74 should be pending; Bindal Smelting Private Limited v Addl. Director General of GST Intelligence, 2020 (34 G.S.T.L 592 (P&H); Society for Integrated Development of Urban and Rural Areas v Commissioner of Income Tax, A.P. II, Hyd, 2001 (252) ITR 642; Vinod Kumar Murlidhar Prop. Of Chechani Trading Co v. State of Gujarat, Special Civil Application No. 12498 of 2020 dated 9 December 2020 WP(C) 11245 of 2020 dated 6 January ....
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....erson indicating a nexus between the proceedings to be initiated against a taxable person and provisional attachment of bank account of such taxable person." (emphasis supplied) C.3 Delegation of authority under CGST Act 38. The learned counsel for the respondent State, during the course of his submissions, has also sought to justify the delegation of powers by the Commissioner to the Joint Commissioner by way of the impugned notification dated 21 October 2020 for the purpose of attachment of properties under Section 83 of the HPGST Act. In this regard, reliance was placed on Nathanlal Maganlal Chauhan v State of Gujarat 2020 SCC Online Guj 1811, where the Gujarat High Court was considering the validity of a notification by which the Commissioner of State Tax had delegated all the functions under the SGST Act to the Special Commissioner and Additional Commissioners of State Tax. In rejecting a challenge to this notification, the High Court held that: "39. As pointed out by the Supreme Court in the case of Sahni Silk Mills [internal citation omitted], the courts should normally be rigorous while requiring the power to be exercised by the persons or the ....
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....e Commissioner is of the opinion that for the purpose of protecting the interest of the Government revenue, it is necessary so to do, he may, by order in writing attach provisionally any property, including bank account, belonging to the taxable person in such manner as may be prescribed. (2) Every such provisional attachment shall cease to have effect after the expiry of a period of one year from the date of the order made under subsection (1)." 40. The marginal note to Section 83 provides some indication of Parliamentary intent. Section 83 provides for "provisional attachment to protect revenue in certain cases". The first point to note is that the attachment is provisional - provisional in the sense that it is in aid of something else. The second point to note is that the purpose is to protect the revenue. The third point is the expression "in certain cases" which shows that in order to effect a provisional attachment, the conditions which have been spelt out in the statute must be fulfilled. Marginal notes, it is well-settled, do not control a statutory provision but provide some guidance in regard to content. Put differently, a marginal note indicates the dri....
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....ection (2) of Section 83, a provisional attachment ceases to have effect upon the expiry of a period of one year of the order being passed under sub-Section (1). The power to levy a provisional attachment has been entrusted to the Commissioner during the pendency of proceedings under Sections 62, 63, 64, 67, 73 or as the case may be, Section 74. Section 62 contains provisions for assessment for non-filing of returns. Section 63 provides for assessment of unregistered persons. Section 64 contains provisions for summary assessment. Section 67 elucidates provisions for inspection, search and seizure. Before we dwell on Section 74, it would be material to note the provisions of Section 70 which are extracted below: "70. Power to summon persons to give evidence and produce documents. - (1) The proper officer under this Act shall have powers to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry in the same manner, as provided in the case of a civil court under the provisions of the Code of Civil Procedure, 1908, (5 of 1908). (2) Every such inquiry referred to in sub-section (1) sha....
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....y the amount of tax alongwith interest payable under section 50 and a penalty equivalent to fifteen per cent of such tax on the basis of his own ascertainment of such tax or the tax as ascertained by the proper officer and inform the proper officer in writing of such payment. (6) The proper officer, on receipt of such information, shall not serve any notice under subsection (1), in respect of the tax so paid or any penalty payable under the provisions of this Act or the rules made thereunder. (7) Where the proper officer is of the opinion that the amount paid under sub-section (5) falls short of the amount actually payable, he shall proceed to issue the notice as provided for in sub-section (1) in respect of such amount which falls short of the amount actually payable. (8) Where any person chargeable with tax under sub-section (1) pays the said tax alongwith interest payable under section 50 and a penalty equivalent to twenty five per cent of such tax within thirty days of issue of the notice, all proceedings in respect of the said notice shall be deemed to be concluded. (9) The proper officer shall, after considering there presentation, if any, ....
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.... and (4) lay down procedural provisions which are to be followed by the proper officer. Secondly, under sub-Section (5) of Section 74, before the service of a notice under sub-Section (1), the person who is chargeable with tax may pay the tax together with interest and a penalty equivalent to fifteen per cent of the tax on the basis of their own ascertainment of the tax or as ascertained by the proper officer and inform the proper officer of the payment having been made upon receipt of the information. Sub-Section (6) stipulates that the proper officer shall not serve any notice under sub-Section (1) in respect of the tax so paid or any penalty payable under the provisions of the Act or the Rules. 47. On the other hand, when the proper officer is of the opinion that the amount which has been paid under sub-Section (5) falls short of the amount which is actually payable, a notice under sub-Section (1) is to issue for the amount which falls short of what is actually payable. Sub-Section (8) contains a stipulation that where a person who is chargeable with tax under sub-Section (1) pays the tax together with interest and a penalty of twenty-five per cent of the tax within thi....
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....th, the observance by the Commissioner of the provisions contained in the rules in regard to the manner of attachment. Each of these components of the statute are integral to a valid exercise of power. In other words, when the exercise of the power is challenged, the validity of its exercise will depend on a strict and punctilious observance of the statutory pre- conditions by the Commissioner. While conditioning the exercise of the power on the formation of an opinion by the Commissioner that "for the purpose of protecting the interest of the government revenue, it is necessary so to do", it is evident that the statute has not left the formation of 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....
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....ommissioner to pass the order of provisional attachment of any property belonging to the dealer during the pendency of any proceedings of assessment or reassessment of turnover escaping assessment. However, the order of provisional attachment can be passed by the Commissioner when the Commissioner is of the opinion that for the purpose of protecting the interest of the Government Revenue, it is necessary so to do. Therefore, before passing the order of provisional attachment, there must be an opinion formed by the Commissioner that for the purpose of protecting the interest of the Government Revenue during the pendency of any proceedings of assessment or reassessment, it is necessary to attach provisionally any property belonging to the dealer. However, such satisfaction must be on some tangible material on objective facts with the Commissioner. In a given case, on the basis of the past conduct of the dealer and on the basis of some reliable information that the dealer is likely to defeat the claim of the Revenue in case any order is passed against the dealer under the VAT Act and/or the dealer is likely to sale his properties and/or sale and/or dispose of the properties and in cas....
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....der this Act until the time for presenting an appeal to the Appellate Authority under section 107 has expired without an appeal having been presented or the appeal, if presented, has been disposed of. Explanation. - In the case of firm, company or other association of persons, the names of the partners of the firm, directors, managing agents, secretaries and treasurers or managers of the company, or the members of the association, as the case may be, may also be published if, in the opinion of the Commissioner, or any other officer authorised by him in this behalf, circumstances of the case justify it." 53. Under sub-Rule (1) of Rule 159, an attachment of property by the Commissioner under Section 83 is effected by passing an order mentioning the details of the property which is attached. The form in which the order is to be made is prescribed in form GST DRC22. This form is extracted below: FORM GST DRC - 22 [See rule 159(1)7] Reference No.: To Date: .........................Name ........................Address (Bank/ Post Office/Financial Institution/Immovable property registering authority) Pr....
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.... Date - Restoration of provisionally attached property / bank account under section 83 Please refer to the attachment of << saving / current / FD/RD>> account in your << bank/post office/financial institution>> having account no. ‹<..........>>, attached vide above referred order, to safeguard the interest of revenue in the proceedings launched against the person. Now, there is no such proceedings pending against the defaulting person which warrants the attachment of the said accounts. Therefore, the said account may now be restored to the person concerned. or Please refer to the attachment of property << ID /Locality>> attached vide above referred order to safeguard the interest of revenue in the proceedings launched against the person. Now, there is no such proceedings pending against the defaulting person which warrants the attachment of the said property. Therefore, the said property may be restored to the person concerned. Signature Name Designation Copy to - 55 A significant aspect of Rule 159(5) is that upon the levy of a provisional attachment, the person whose property is attached is empowered to file an obj....
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....rty. Where a bank account is attached, it prevents the person from operating the account. A business entity whose bank account is attached is seriously prejudiced by the inability to utilize the proceeds of the account for the purpose of business. The dual procedural safeguards inserted in sub-Rule 5 of Rule 159 demand strict compliance. The Commissioner who hears the objections must pass a reasoned order either accepting or rejecting the objections. To allow the Commissioner to get by without passing a reasoned order will make his decision subjective and defeat the purpose of subjecting it to judicial scrutiny. The Commissioner must deal with the objections and pass a reasoned order indicating whether, and if not, why the objections are not being accepted. Sub- Rule 6 of Rule 159 allows for the release of a property which either was or is no longer liable for attachment. The form in which such an order has to be passed, namely form GST DRC-23, states that "now there is no such proceeding pending against the defaulting person which warrants attachment" of the account or as the case may be, the property. Sub- Rules 5 and 6 do not expressly contemplate a situation in which t....
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....s which were required by the department. The partners of GM Powertech were arrested under the provisions of Sections 69 and 132 of the HPGST Act on 3 December 2018, on the allegation that they had made fraudulent claims of ITC from fake/fictitious firms of Delhi and Kanpur. On 15 December 2018, the representatives of the appellant were directed to remain present on 17 December 2018 for explaining the allegedly illegal claim of ITC for 2017-18 and 2018-19. A representative of the appellant attended the enquiry on 17 December 2018. On 9 January 2019, an order of provisional attachment was issued under Section 83 by the Joint Commissioner of State Taxes and Excise by which a payment of Rs 5 crores due to the appellant from M/s Fujikawa Power was attached on the ground that the appellant had availed of ITC of Rs 3.25 crores against the purchase of goods valued at about Rs 21 crores from GM Powertech for 2017-18 and 2018-19 and a case of GST fraud had been instituted against the alleged supplier. On 19 January 2019, Form GST DRC-22 was issued to Fujikawa Power regarding the attachment of Rs 5 crores. On 29 January 2019, the appellant made a representation under Rule 159(5) for unblockin....
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.... from GM Powertech and had claimed and utilized ITC on that basis. However, all suppliers from whom GM Powertech had shown inward supplies of goods were found to be fictitious, fake and non-existent. The GST registration of GM Powertech had been cancelled and by an order under Section 74(9), an additional demand of Rs 39.48 crores was confirmed. The appellant was called upon to show cause as to why interest, tax and penalty should not be imposed. The appellant instituted writ proceedings before the Himachal Pradesh High Court inter alia for (i) Challenging the delegation by the Commissioner on 21 October 2020; (ii) The proceedings initiated under Section 83; and (iii) Revocation of the provisional attachment. The writ petition was dismissed by the High Court on the ground that the appellant had an alternative remedy available in law. 59 The sole ground which has weighed with the High Court in holding that the writ proceedings were not maintainable is that "the writ petitioner has not only (an) efficacious remedy, rather alternative remedy under the GST Act". In addition, the High Court has observed that the writ petition filed by GM Powe....
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....rt of the petitioner of non-availment of the opportunity in the post provisional attachment period, at the same time, this Court notices that investigation is continuing for a long time. The charge-sheet is also late in case of the present petitioner and his release on regular bail also is following the part of the record while holding that this petition is maintainable and also holding that there appears to be prima facie material for passing an order of provisional attachment exercising the powers under Section 83 of the Act, the score of the opinion that entire investigation since is continued for a long time, let the same be wound up in three (03) months' period. If the opportunity of hearing has been missed the second time in post provisional attachment order let the same be effected to the petitioner and if the same has been allowed, the investigation be completed in three months period while not interfering with the attachment provisionally made the score of the opinion that if investigation is not completed within the said period, attachment shall need to go thereafter. 13. Provisional attachment of bank account without passing any fresh order after expiry of statutory p....