2018 (12) TMI 1441 – GUJARAT HIGH COURT – TMI – Provisional attachment of Bank Accounts – It was submitted that even if the case of the respondents is taken at face value, at best, the tax liability of the petitioner would come to ₹ 13,84,000/- and therefore, the amount of ₹ 17,00,000/- deposited by the petitioner should be sufficient to protect the interests of the revenue – Held that:- From the facts as emerging on record, it appears that the tax liability of the petitioner in terms of the goods seized as well as the transporter’s statement, the same would not exceed ₹ 13,00,000/-. The petitioner has already deposited a sum of ₹ 17,00,000/- with the respondent. Insofar as the amount assessed towards the penalty is concerned, in the absence of any proceedings having been undertaken under the provisions of the GGST Act as well as any penalty having been imposed, the respondent authorities were not justified in resorting to such a drastic coercive measure of att
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ANI) 1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner seeks the following substantive reliefs: [C] Your Lordships may be pleased to issue writ of mandamus or any other appropriate writ directing the respondent authorities to immediately remove attachment of bank accounts of (1) Axis Bank, Bhavnagar, viz., Nos. (a) C/C A/c No.917030053366001, (b) CURRENT A/c No.917020055857122 and (c) Savings A/c No.200010100069386 of Mr. Manish Bansal, (2) IndusInd Bank, Bhavnagar, viz., (a) Savings A/c No.159825708079 of Mr. Manish Bansal, and (b) Term Deposit A/c No.300723646746 and (3) State Bank of India, Bhavnagar, viz., (a) 31638538591 and (b) 31595134117, and that is how, the said bank accounts may immediately be defreezed; [D] Your Lordships may be pleased to direct the respondent authorities to immediately remove attachment of goods being attached vide Form GST INC – 02 (Order of seizure) dated 12/10/2018 (the date of order is wrongly typed as 12/11/2
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ved goods without payment of tax and therefore, the tax was payable. It is the case of the petitioner that under pressure, threat and duress, the first respondent obtained a statement of the proprietor of the petitioner firm and further pressurized the petitioner to deposit ₹ 17,00,000/-. The respondents also claimed that a total of ₹ 55,37,237/- was payable by the petitioner and obtained post-dated cheques of the differential amount from the petitioner under pressure, threat and duress. Subsequently, by an affidavit dated 26.10.2018, the proprietor of the petitioner firm retracted the statement recorded by the first respondent. 2.1 By an order of seizure dated 12.10.2018 issued in Form GST INS-02, the first respondent attached the goods which according to him were found in excess on the factory premises of the petitioner. It is the case of the petitioner that the respondent worked out the amount payable by the petitioner at ₹ 55,37,237/- and thereafter, on 22.10.2018
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provisional attachment in this case has been made under section 83 of the Gujarat Goods and Services Tax Act, 2017 (hereinafter referred to as the GGST Act ). It was submitted that sub-section (1) of section 83 of the GGST Act provides that 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, the Commissioner is of the opinion that for the purpose of protecting the interest of the Government 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. It was submitted that in this case, no proceedings are pending under any of the sections mentioned in sub-section (1) of section 83 of the GGST Act and hence, the orders of provisional attachment are bad in law. 3.1 It was submitted that the respondents have calculated the tax liability of the petitioner by making an addition of 10
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Utkarsh Sharma, learned Assistant Government Pleader, placed reliance upon the averments made in the affidavit-in-reply filed on behalf of the respondents. A perusal of the averments made in the affidavitin- reply shows that the respondents have mainly relied upon the admissions made by the petitioner on the day of the search, despite the fact that the statement was subsequently retracted by the proprietor of the petitioner firm. 5. A perusal of the computation of tax as made by the first respondent reveals that while assessing the tax liability as well as penalty, he has added 100% to the stock found during the course of search. Evidently therefore, the amount of 37,25,016/- sought to be recovered on the tax and penalty payable on the dues of stock is twice the amount of goods actually found. An amount of ₹ 18,00,000/- has been computed on the basis of statement of the transporter by adding 100% of the quantity stated by him. Thus, an inflated amount of ₹ 55,37,237/- has
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o, he may, by order in writing attach provisionally any property, including bank account, belonging to the taxable person. On a plain reading of the said provision, it is evident that before resorting to such drastic action, the Commissioner is required to form an opinion that it is necessary to do so to protect the interest of the revenue. For the purpose of arriving at such an opinion, the Commissioner should first form an opinion that the petitioner would not be in a position to pay the tax dues after the assessment proceedings are over. In the facts of the present case, the petitioner firm is a going business and the petitioner has readily deposited a sum of ₹ 17,00,00/- which covers more than the tax liability that may be assessed. It is not the case of the respondents that the petitioner is a fly by night operator or that it does not have the means to pay the dues that might to assessed at the end of assessment proceedings, which at present have not even been commenced. The
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ontinue with his business, because it is only if the dealer continues with the business that he would generate more revenue. The authorities should keep in mind that bringing the business of a dealer to a halt does not in any manner serve the interest of the revenue. Therefore, while taking action under section 83 or 67(2) of the GGST Act, the concerned authorities should take care to ensure that equities are maintained and while securing the interest of the revenue, they should attempt to see that the dealer is in a position to continue with the business. This court does not intend to lay down any absolute proposition that in no case drastic action should be taken, but that the respondents should consider the background and history of the dealer as well as his financial position to ascertain as to whether or not he would otherwise be in a position to pay the dues that may be assessed upon the culmination of any assessment proceedings that may be initiated. If the dealer is a fly by ni
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