TaxTMI 
TaxTMI 
2024 (7) TMI 1025
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....ng attention of this Court to the said provisional orders of attachment, dated 3rd February, 2023 and 10th February, 2023 submits that the aforesaid orders of attachment though, could have been issued by invoking the provisions of the said Act, however, in terms of the provisions contained in Section 83 of the said Act, the same could not have continued beyond a period of one year from the date of issue of such order as the same ceases to have effect after expiry of the period of one year from the date when such order was issued. According to him, admittedly, in this case, the above five orders of attachment which were issued on 3rd February, 2023 and 10th February, 2023 have ceased to have effect, on the expiry of the period of one year from the date of issuance of such orders. It is submitted, that from the aforesaid orders of attachment it would transpire that in connection with a purported investigation initiated by the respondents that the aforesaid provisional orders of attachment had been issued, on the premise that the petitioner is in control of certain separate entities, despite the fact that the petitioner has no connection with such entities. 4. In support of his afo....
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....tries v. State of Himachal Pradesh and Ors., reported in (2021) 6 SCC 771. 6. He has also placed reliance on the Guidelines issued by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs, GST Policy Wing dated 23rd February, 2021 to demonstrate that the provisional attachment of property under Section 83 of the said Act, can only be made in terms of paragraphs 3.2.4 and 3.2.5 of the said Guidelines and the order of attachment shall automatically cease to have effect after expiry of period of one year. 7. By further placing reliance on paragraph 3.6 of the said Guidelines, he submits that without resorting to an investigation, the department cannot be permitted to continue with the provisional order of attachment. The present stand of the respondents, in continuing with the orders of attachment, by issuing fresh orders, without taking any steps for investigation would go to demonstrate that the aforesaid exercise of the jurisdiction by the respondents is in colourable exercise of power. In the facts, as stated hereinabove, he submits that the orders of attachment should be quashed. 8. Mr. Banerjee, learned advocate....
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....b & Haryana at Chandigarh in the case of Magna Wires Pvt. Ltd. v. Union of India, reported in 2021 (51) G.S.T.L. 5 (P&H). He has also placed reliance on a judgment delivered by a coordinate Bench of this Court in the case of Amazonite Steel Pvt. Ltd. v. Union of India, reported in 2020 (36) G.S.T.L. 184 (Cal), on the question whether there is any embargo in issuing fresh provisional order of attachment under Section 83 of the said Act. 12. Having regard to the above, it is submitted that no case for interference having been made out, the writ petition deserves to be dismissed. 13. Heard the learned advocates appearing for the respective parties and considered the materials on record. Admittedly, in this case, the provisional orders of attachment had been issued under Section 83 of the said Act. It may be noted, that once, a provisional order of attachment has been issued under Section 83 of the said Act, the statute itself considering the drastic nature of the order confers a right on the person whose property is attached to file an objection under Rule 159 (5) of the said Rules. The guidelines for provisional order of attachment of property under Section 83 of the said Act, ....
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....hment could be issued and has attempted to claim that the present case does not fall within the exception provided in the said judgment for the respondents either to pass or continue with the orders of attachment, I may, however, notice that in the instant case, it is the petitioner who at the first instance did not come forward to file any objection in terms of Rule 159 (5) of the said Rules. From the copies of the envelopes bearing postal endorsement, it would appear that the petitioner could not be located. Interestingly, the petitioner for one entire year from the date of issuance of the provisional attachment orders dated 3rd February, 2023 and 10th February, 2023, chose not to apply in terms of Rule 159 (5) of the said Rules. Had the petitioner applied, the petitioner could have raised all objections before the respondents and the respondents could have, in such case, not got an opportunity to claim that the petitioner was avoiding service of notice, which prompted them to issue fresh provisional orders of attachment. 18. I may note here, that although, a lot of stress has been laid by the petitioner to, inter alia, contend that the orders of attachment cannot be continued....
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.... (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 should, therefore, be exercised with extreme care and caution. (4) The power under section 83 of the Act for provisional attachment should be exercised only if there is sufficient material on record to justify the satisfaction that the assessee is about to dispose of wholly or any part of his/her property with a view to thwarting the ultimate collection of demand and in order to achieve the said objective, the attachment should be of the properties and to that extent, it is required to achieve this objective. (5) The power under section 83 of the Act should neither be used as a tool to harass the assessee nor should it be used in a manner which may have an irreversible detrimental effect on the business of the assessee. (6) The attachment of bank account and trading assets should be resorted to only as a last resort or measure. The provisional attachment under section 83 of....