2025 (2) TMI 134

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....th the 4th Respondent Bank has been attached. 2. Mr. Sridharan, the learned Senior Counsel appearing for the Petitioner, brought to our attention the impugned order which is at page 38 of the paper book. He submitted that the aforesaid order has been passed on surmises, conjunctures and purely on a legal dispute. He submitted that the aforesaid order is passed in the teeth of the decision of the Hon'ble Supreme Court in the case of Radha Krishan Industries Vs. State of Himachal Pradesh [2021(48) G.S.T.L. 113(SC)] as well as the CBIC Guidelines dated 23rd February, 2021. He, therefore, submitted that the attachment order be raised immediately as the same is not only bringing the business of the Petitioner to a grinding halt but also embarra....

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....availed by him. 8. The taxpayer denied to reverse on the ground that - a. In future if he intends to sale the property before occupancy certificate (OC), he will liable to pay tax. b. In the light of Hon'ble Supreme Court in the matter of Safari Retreats. 9. This office brought to notice to the taxpayer that as per the legal provision he is a not promoter and therefore in future if he is converted himself a promoter, then he has to mandatorily obtain registration under RERA Act. From being that date, he is become a promoter, he is eligible to take ITC under the GST Act. 10. For his another query regarding the petition before the Hon'ble Supreme Court in the matter of Safari Retreats, this office has asked to him to reverse th....

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....id outstanding dues. No payment mentioned above shall be allowed to be made to the said taxpayer without the prior permission of this department. Given under my seal and hand on 28th day of January month of year 2025." (emphasis supplied) 4. On perusal of this order, it is clear that the dispute, if at all, is purely a legal one. The power to order provisional attachment of a property of a taxable person [including a bank account] under Section 83 is draconian in nature and the conditions which are prescribed in the statute for the aforesaid exercise of power must be strictly fulfilled. The exercise of the power for ordering a provisional attachment must be preceded by the formation of an opinion of the Commissioner that it is ne....

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....nd is presently constructing three projects worth Rs. 8,000 crores for which the Petitioner has not made any borrowings. In other words, these assets are free from any encumbrance. In these facts and circumstances, we fail to understand how the Commissioner of State Tax could have come to the conclusion that it was necessary for him to exercise the powers under Section 83 and attach the bank account of the Petitioner. It is clearly a colourable exercise of power. 7. Faced with these facts, we asked Ms. Chavan, the Addl.G.P. to take instructions. On taking the necessary instructions, Ms. Chavan stated that the impugned order will forthwith be withdrawn and the same shall be intimated to the 4th Respondent-Bank immediately. We accept the sai....