TaxTMI 
TaxTMI 
2026 (3) TMI 82
X X X X Extracts X X X X
X X X X Extracts X X X X
....ions and thereby maintaining provisional attachment of the said bank account. There is further order provisional attachment of the petitioner's bank account held with the HDFC Bank, Mahakali Caves Road, Andheri East, Mumbai, - respondent No.6, under Section 83 of the MGST Act. The substantive prayers as made in the petition are required to be noted which read thus:- "a) That this Hon'ble Court be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other writ, Order or direction under Article 226 of the Constitution of India calling for the records of the case leading to the issuance of the impugned Order dated 03.12.2025 (Exhibit "A") as well as the impugned Order dated 29.12.2025 (Exhibit "B") under Section 83 of the MGST Act and after going through the same and examining the question of legality thereof to quash, cancel and set aside the said impugned Orders; and/or b) That this Hon'ble Court be pleased to issue a Writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, Order or direction under Article 226 of the Constitution of India holding that the actions of the Respondent No. 3 are contrary to Sectio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment was entered into on 9 May 2011 by the petitioner with one Nityanand Nagar Vibhag IV Co-operative Housing Society (for short 'the society'), under which, the petitioner was to hand over 168 flats to the existing owners /members of the said society, without any consideration. The petitioner entered into separate agreements with each individual existing owner for the purpose of construction and hand over units/flat to each of the members of the society. The redevelopment work commenced in the year 2015, for which necessary permissions were obtained. Part occupation certificates for different sets of flats in the re-developed society were granted by the Building Permission Cell, Greater Mumbai / Maharashtra Area and Housing Development Authority (for short 'MHADA'). The relevant dates in that regard are 30 December 2022, 5 January 2024 and 16 February 2024. 3. Between the period November 2022 to June 2025, upon completion of construction and on receipt of respective part occupancy certificate, the process of handover of the flats to the existing owners were undertaken. Out of the flats constructed, 168 flats and 12 flats were handed over to the existing owners and MHADA respect....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sions were filed on 26 November, 2025 and 1 December, 2025. 6. It is the petitioner's case that even after conclusion of the investigation, respondent no. 3 passed the impugned order dated 3 December, 2025 attaching the petitioner's bank account with respondent no. 5-HDFC Bank. On the petitioner becoming aware of such attachment, it filed detailed objections in Form GST DRC-22A to the said attachment. However, as no response was received on the objections as taken by the petitioner, a follow up email was addressed by the petitioner on 18 December, 2025 to respondent No.4, requesting for a expeditious decision on the objections. 7. On such backdrop, immediately on the even date, respondent no. 4 issued a personal hearing notice to the petitioner scheduling personal hearing in relation to the attachment of petitioner's bank account under the order dated 3 December, 2025. A hearing was accordingly scheduled on 22 December, 2025 when the authorized representatives of the petitioner appeared, who made detailed submissions that the attachment be vacated. 8. On 29 December, 2025, respondent no. 3 passed the impugned Order rejecting the petitioner's objections and maintaining the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arise. Since, as this notification, class of registered persons were notified only on 25.01.2018 and in the present case point of taxation has already triggered on 09.05.2011, therefore, this notification would not apply to the present case." 11. In supporting the submissions that such coercive action could not have been taken and that to wholly overlooking the petitioners contention reliance is placed on the decision of the Supreme Court in Radha Krishan Industries Vs. State of Himachal Pradesh & Ors. (2021) 6 SCC 771, wherein the Supreme Court has made the following observations: "48. Now in this backdrop, it becomes necessary to emphasize that before the Commissioner can levy a provisional attachment, there must be a formation of "the opinion" and that it is necessary "so to do" for the purpose of protecting the interest of the government revenue. The power to levy a provisional attachment is draconian in nature. By the exercise of the power, a property belonging to the taxable person may be attached, including a bank account. The attachment is provisional and the statute has contemplated an attachment during the pendency of the proceedings under the stipulated statu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nse "was". The expression "is not liable to attachment indicates a situation in praesenti. Even if the property, arguably, was validly attached in the past, the person whose property has been attached may demonstrate to the Commissioner that it is not liable to be attached in the present. 56. The second significant aspect of sub-Rule (5) is the mandatory requirement of furnishing an opportunity of being heard to the person whose property is attached. This is in consonance with the principles of natural justice and ensures that a fair procedure is observed. Sub-Rule (5) provides for a post-provisional attachment right of: (i) Submitting an objection to the attachment: (ii) An opportunity of being heard. Sub-Rule (5) contains clear language to the effect that a person whose property is attached is entitled to two procedural entitlements: first, the right to submit an objection on the ground that the property was not or is not liable to be attached; and second, an opportunity of being heard to the person filing an objection. This is a clear indicator that in addition the filing of an objection, the person whose property is attached is entitled to an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urity that is furnished by the taxable person should be accepted and if so, its sufficiency, is a matter for the Commissioner to determine. Undoubtedly, the taxable person may not have a right to demand that only a particular form of security must be accepted. The Commissioner has to decide whether the form of security offered would secure the interest of the revenue. Where the taxable person sets up the plea that the extent of the attachment is excessive or where the taxable person offers an alternative form of security, these are also matters which ought to be determined by the Commissioner in the exercise of powers under Rule 159(5). The scope of objection can also extend to the nature of the property which is being provisionally attached. Now, it is in this backdrop that we proceed to a determination of whether the petition under Article 226 was maintainable and if it was, whether Commissioner exercised the powers under Section 83 read with Rule 159 in accordance with law." 12. It is submitted that in the context of Section 83 of the CGST Act and in similar circumstances, issues had fell for consideration of this Court in Originative Trading Pvt. L....
X X X X Extracts X X X X
X X X X Extracts X X X X
....longing to the taxable person in such manner as may be prescribed where during the pendency of any proceedings under section 62 or section 63 or section 64 or section 67 or section 73 or section 74. In this case, the proceedings under section 67 of the CGST Act are pending against the petitioners. 17. Under rule 159 of the CGST Rules the mode and manner of exercising powers by the Commissioner under section 83 of the CGST Act is provided. The Commissioner shall send a copy of the order of attachment to the concerned revenue authority or transport authority or any such authority to place the encumbrance on the said moveable or immovable property, which shall be removed only on the written instructions from the Commissioner to that effect. The Commissioner is required to attach any property under rule 159 by passing an order in form GST DRC-22 to that effect mentioning therein the details of property which is attached including the bank account in accordance with the provisions of section 83. 18. It is thus clear that the copy of such order in form GST DRC-22 has to be communicated to the party with which the assets of the assessee would be found. We are not incline....
X X X X Extracts X X X X
X X X X Extracts X X X X
....echanical manner and careful examination of all the facts of the case is important to determine whether the case is fit for exercising power under section 83. The collective evidence, based on the proceedings/enquiry conducted in the case, must indicate that a prima facie a case has been made out against the taxpayer, before attachment being, by its very nature, extraordinary, has to be resorted to with utmost circumspection and with maximum care and caution. 22. In our view, none of those safeguards set out in the said circular dated February 23, 2021 would affect the rights of the petitioner as the said circular though grants power to the Commissioner to record reasons in file, however with a caution that the power must not be exercised in the routine or mechanical manner and shall be exercised only after careful examination of the facts of the case. 23. A perusal of the affidavit in reply indicates that according to the respondents, there are certain material against the petitioner noticed by the respondents while carrying out investigation. At this stage we are not expressing any opinion on the correctness of the reasons recorded by the respondents in the affi....