ANKIT LOKESH GUPTA VERSUS STATE OF GUJARAT

Provisional attachment of Bank Accounts – copy of order not served to petitioner – principles of natural justice – HELD THAT:- On a plain reading of section 83 of the CGST/GGST Act, it is evident that the same contemplates provisional attachment of any property including bank account belonging to a person where during the pendency of any proceedings under sections 62, 63, 64, 67, 73 and 74, the Commissioner is of the opinion that for the purpose of protecting the interest of the Government revenue, it is necessary to do so.

In the present case, the requirements of section 83 of the Act are clearly not made out inasmuch as the concerned officer was not authorized or empowered to provisionally attach the property of the petitioner under section 83 of the CGST Act in respect of the proceedings under section 71(1) of the said Act.

The impugned action of the respondent of provisionally attaching the bank account of the petitioner is without authority of law – since the impugned order passed by the second respondent was totally without any authority of law, the petition is disposed of with costs of ₹ 10,000/-.

No.- R/SPECIAL CIVIL APPLICATION NO. 16632 of 2019

Dated.- October 1, 2019

MS HARSHA DEVANI AND MS SANGEETA K. VISHEN, JJ.

For The Petitioner (s) : MS VAIBHAVI K PARIKH (3238)

For The Respondent (s) : ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP (99)

For The Respondent (s) : DS AFF.NOT FILED (N)(11)

ORAL ORDER

(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)

1. By this petition under article 226 of the Constitution of India, the petitioner has challenged the order dated 19.09.2019 issued by the second respondent provisionally attaching the bank account bearing No. 385305000096 of the petitioner maintained with the ICICI Bank, Gandhidham.

2. By the impugned order dated 19.09.2019, the bank account of the petitioner came to be attached on 19.09.2019 without furnishing a copy of such order to the petitioner. The petitioner, however, obtained the copy of the said order from the concerned bank. The second respondent also issued summons dated 19.09.2019 under section 70(1) of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as ‘the CGST Act’) and Gujarat Goods and Services Tax Act, 2017 (hereinafter referred to as ‘the GGST Act’) and ordered the petitioner to remain present before him on 09.10.2019.

3. Since, according to the petitioner, the order dated 19.09.2019 passed by the second respondent was without any authority of law, the petitioner has filed the present petition challenging the said order of provisional attachment of bank account.

4. Ms. Vaibhavi Parikh, learned advocate for the petitioner invited the attention of the court to the provisions of section 83 of the CGST ACt/GST Act to submit that the same do not contemplate provisional attachment in respect of the proceedings under section 71(1) of the GGST Act. It was submitted that, therefore, the action of the respondent in attaching the bank account of the respondent is without any authority of law.

5. On the other hand, Ms. Maithili Mehta, learned Assistant Government Pleader has placed on record a copy of communication dated 27.09.2019 issued by the respondent No. 2, addressed to the Branch Manager, ICICI Bank, Gandhidham Branch informing him to unfreeze the account of the petitioner which was attached on 19.09.2019. Such order is served upon the ICICI bank on 30.09.2019.

5.1 It was submitted that, therefore, the respondent, upon noticing his mistake, has forthwith taken action and lifted the attachment of the bank account of the petitioner. It was submitted that, therefore, the grievance voiced in the petition no longer survives.

6. While it is true that by order dated 27.09.2019, which was served upon ICICI Bank, Gandhidham on 30.09.2019, the provisional attachment towards bank account of the petitioner has been released. However, on a perusal of the order of provisional attachment of property made under section 83 of the Act, which is subject matter of challenge in the present petition, it emerges that the respondent has passed the order on the ground that proceedings have been launched against the petitioner under section 71(1) of the SGST/CGST Act.

6.1 On a plain reading of section 83 of the CGST/GGST Act, it is evident that the same contemplates provisional attachment of any property including bank account belonging to a person where during the pendency of any proceedings under sections 62, 63, 64, 67, 73 and 74, the Commissioner is of the opinion that for the purpose of protecting the interest of the Government revenue, it is necessary to do so. In the present case, the requirements of section 83 of the Act are clearly not made out inasmuch as the concerned officer was not authorized or empowered to provisionally attach the property of the petitioner under section 83 of the CGST Act in respect of the proceedings under section 71(1) of the said Act.

6.2 Under the circumstances, the impugned action of the respondent of provisionally attaching the bank account of the petitioner is without authority of law. It may be noted that attachment of bank account has serious civil consequences which not only affects the economic standing of the assessee but also mars his reputation. Under the circumstances, the concerned authorities are required to be careful when they make any provisional attachment under section 83 of the CGST/GGST Act. In the present case, the second respondent appears to have mechanically resorted to the provisions of section 83 of the Act of provisionally attaching the bank account of the petitioner, despite, the fact that such an action could not have been taken in respect of the proceedings initiated under section 71(1) of the said Acts. While it may be true that subsequently, the officer has released the bank account of the petitioner from provisional attachment, the same does not detract from the fact that the impugned order was passed without any authority of law.

7. In the light of the fact that the impugned order of provisional attachment since been withdrawn, no further relief is required to be granted to the petitioner. However, since the impugned order passed by the second respondent was totally without any authority of law, the petition is disposed of with costs of ₹ 10,000/- (Rupees Ten thousand only). It is clarified that it shall be open for the respondent – State Government to recover the same from the concerned officer.

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