TaxTMI 
TaxTMI 
2025 (6) TMI 582
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....ashing and setting aside the search authorization issued by respondent No.5 with consequential and incidental relief and further also prayed for quashing and setting aside the attachment orders at Annexure D and blocking of ITC as passed by the respondents with consequential and incidental reliefs. 3. As the issues arising in all these petitions are common, the same were heard analogously and are being disposed of by this common order. 4. For sake of convenience, Special Civil Application No. 4910 of 2025 is treated as a lead matter. 5. Brief facts of the case of Special Civil Application No. 4910 of 2025 are as under : 5.1 The petitioner No.1 is a Private Limited Company engaged in the business of dealing in Building Materials, Steel etc. Petitioner No.2 is one of the two Directors of the Company. 5.2 On 06.03.2025, the petitioners were subjected to a search operation u/s. 67 of the Central Goods and Service Tax Act,2017 ['CGST Act' for short] and Gujarat Goods and Service Tax Act ['GGST Act' for short] at the principal place of business of petitioner No.1 and at the residence of petitioner No.2 by respondent No.5. The search authorization letter dated 05.03.2025 was is....
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.... was also issued by respondent no.4 to the petitioners asking the petitioner No.2 to produce Books of Accounts and give statement on 18.03.2025 at 11:00 A.M at GST Office at Gandhidham. 5.6 On 21.03.2025, respondent No.4 provisionally attached 'Sundry Debtors' of the petitioner No.1-Company directing the Debtors not to pay any amount to the petitioner No.1-company without prior permission of respondent No.4. 5.7 It is the case of the petitioners that the transactions of the petitioners were structured under "Bill to Ship To" and/or 'Bill from-Dispatch from' and/or "Combination of both" concept wherein, title of the goods change hands before or during the movement of the goods either one or multiple times. It is further the case of the petitioner that transferring the title of the goods, which is a unique physical movement of the goods, should be under the Unique E-Way bill whereas, the petitioners, due to incorrect understanding of the GST Law, has inadvertently issued duplicate E-Way Bill which created a misunderstanding, leading authorities to incorrectly assume a fraudulent transaction when in reality, the tax was fully accounted for, and no revenue loss has occurred. Being ag....
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....t and therefore, delegation of powers by the Commissioner to "Proper officer" being Deputy Commissioner and Assistant Commissioner of State Tax for assignment of the function of issue of provisional attachment order to protect the revenue is without jurisdiction. It was therefore, submitted that summons and the impugned orders passed by the Assistant Commissioner are without jurisdiction. 6.4 Learned senior advocate Mr. Soparkar submitted that the provisional attachment made by the respondent authority is without jurisdiction as the respondent-authority has not considered the fact that the petitioners have entered into the transactions of 'Bill To- Ship To' and therefore, there is no evasion of tax as alleged in the satisfaction note. It was further submitted that the petitioner has very good prima facie case as the respondent-authorities are invoking provision of section 16(2)(c)of the GST Act and as such, the impugned orders are liable to be quashed and set aside. 7. On the other hand, learned Assistant Government Pleader Ms. Puja Ashar for the respondent submitted that there is no circular issued by the State Tax authority similar to that of the Circular issued by the Central ....
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....ame shall be considered by the respondent-authority in accordance with law and therefore, at present, this petition is a premature petition and no interference should be made at this stage as the investigation is in process and the respondent-authorities are contemplating a huge evasion of tax by the petitioners. 8. With regard to the contention raised on behalf of the petitioner for not mentioning the DIN is concerned, it appears from the record that DIN on summons or provisional attachment order is not mentioned. The Circular relied upon by the petitioner is issued by the Central Board of Indirect Taxes and Customs addressed to all Principal Chief Commissioner of Customs, Principal Director General, Chief Commissioner of Customs, Director General, Principal Commissioner of Customs, Principal Additional Director General, Commissioner of Customs, Additional Director General and all Joint Secretaries and Commissioner, CBIC. The Circular is not addressed to any of the Commissioners of any of the State Tax who is an authorized person. Therefore, the application of the circular is rightly stated to have been not applicable to the State Tax Officer under the provisions of the GGST Act.....
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....nt 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." 13. It was further submitted that as per section 2(91), "Proper Officer" is defined and, as per the order dated 15.01.2018, the Commissioner has assigned the functions of provisional attachment to protect the revenue to Deputy Commissioner and Assistant Commissioner as a proper officer and therefore, it cannot be said that impugned orders are passed by the Commissioner who is only the authorised person. The above contention raised on behalf of the petitioner appears to be very attractive in the first blush however, on close scrutiny of the provisions of section 2(91) which defines the proper officer, it appears that the Commissioner himself is a proper officer and as such, once the one proper officer has assigned the functions while exercising power conferred under subsection (3) of section 5 of the Act, to other proper officer, it cannot be said that the delegation of assignment of the powers by the Commissioner by impugned order dated 15.01.2018 is contrary to the provisions of the GST ....
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....uthority to others. The individual/s or position/s having the delegation can exercise the authority in their own right. An example of an express power to delegate can be seen in section 5(3) of the Act, 2017. 2. Implied power to authorise: An implied power to authorise, arises where even though there may or may not be an express power to delegate in legislation, there can be an implied power for an official to exercise the power on the person's behalf - it is often termed the 'alter ego' principle, the 'Carltona principle' or an implied power to delegate. This principle arose from the decision Carltona Limited v Commissioner of Works [1943] 2 ALL ER 560. 47. The principle is: devolving power is permitted in the cases where the nature, scope, and purpose of the power in legislation means that it is unlikely that the Parliament intended that the power is to be exercised personally, and the only practical way the power can be exercised is by the officers who are responsible to the person (who has the power by legislation)." 14. Therefore, reliance placed by the petitioner on notification dated 05.07.2017 whereby the powers of the Commissioner are delegated ....