M/S. ANANDBHAVAN PROPERTIES PRIVATE LIMITED VERSUS THE UNION OF INDIA THE MINISTRY OF FINANCE GOVERNMENT OF INDIA, THE COMMISSIONER OF CENTRAL TAX,

Provisional attachment of Bank Accounts – time limitation for such attachment to be in effect – Section 83 of the CGST Act, 2017 – HELD THAT:- Perusal of Annexures-D and E, it is not relevant to Section 74 of the Act. Under Section 74 of the Act, petitioner has not been issued notice. The pendency of proceedings under Section 83 of the Act would be only after issuance of notice. In the absence of issuance of notice under Section 74 of the Act or any other Sections quoted in Section 83 of the Act, one cannot draw inference that there is pendency of any proceedings under Section 74 of the Act in the present case.

Respondents have not apprised by producing any documentary evidence to show that one of the ingredients under Section 74 of the Act has been invoked so as to pass the impugned order under Section 83 of the Act. Accordingly, writ petition stands allowed. Annexures-D and E are set aside.

Petition allowed.

No.- W.P. No.21494/2019 (T – RES)

Dated.- September 26, 2019

MR. P.B. BAJANTHRI J.

Petitioner (By Sri Anirudha, R J, Advocate)

Respondents (By Smt.M R Vanaja, Advocate)

ORDER

In the instant petition, petitioner has sought for the following reliefs:

(a) Issue a writ of certiorari or such other writ, order or direction as this Hon’ble Court may deem fit, quashing the provisional attachment notice (bearing Number C No.IV/06/113/2018 BN HPU) dated 30.03.2019 in Annexure-L as being illegal and untenable in law, in the facts and circumstances of the instant case;

b) Issue a writ of mandamus, or such other writ, order or direction as this Hon’ble Court may deem fit and proper, holding and declaring that the initiation of recovery proceedings in provisional attachment notice dated 30.03.2019 in Annexure-L by the respondents pending any adjudication proceedings, in the facts and circumstances of the case, is wholly illegal and untenable in law, in the facts and circumstances of the instant case.

(c) To pass such other orders, directions and writs as this Hon’ble High Court may deem fit in the facts and circumstances of the case, and in the interests of justice, including the costs of this writ petition.

2. Respondents have invoked Section 83 of the Central Goods & Services Tax Act, 2017 (for short `Act’) to the extent of Class-II viz: every such provisional attachment shall cease to have affected after one year from the date of order made under Section 85 of the Act.

3. Learned counsel for the petitioner vehemently contended that the ingredients stated under Section 83 of Act is not attracted. It was further contended that either Section 62 or 63 or 64 or 67 or 73 or 74 is pending consideration, which is one of the ingredients for passing attachment of Bank account.

4. On the other hand, learned counsel for the respondents pointed out that Annexure-D dated 27.8.2018 by which petitioner was asked to produce certain documents and it is undisputed that she has furnished the documents. Further, she relied on Annexure-E dated 17.10.2018 issuance of summons to the witness. Learned counsel for the respondents submitted that both Annexures-D and E would fall under Section 74 of the Act.

5. Perusal of Annexures-D and E, it is not relevant to Section 74 of the Act. Under Section 74 of the Act, petitioner has not been issued notice. The pendency of proceedings under Section 83 of the Act would be only after issuance of notice. In the absence of issuance of notice under Section 74 of the Act or any other Sections quoted in Section 83 of the Act, one cannot draw inference that there is pendency of any proceedings under Section 74 of the Act in the present case. Respondents have not apprised by producing any documentary evidence to show that one of the ingredients under Section 74 of the Act has been invoked so as to pass the impugned order under Section 83 of the Act. Accordingly, writ petition stands allowed. Annexures-D and E are set aside.

Respondents are at liberty to issue notice by invoking appropriate provision of law and to take further action in the matter. At this stage, learned counsel for the respondents submitted that in Annexures-D and E, respondents have not quoted relevant provision merely non-quoting of provision while passing the order would not vitiate order. Perusal of Annexures-D and E, it is evident that there were no ingredients of Section 74 of the Act. Respondents have not apprised which portion of Section 74 of the Act has been invoked in respect of Annexures-D ad E.

Therefore, the aforesaid contention is hereby rejected.

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