The Bombay High Court, Nagpur Bench has quashed the Attachment Orders passed by the Commissioner/ADG-DGGI, being bereft of any reason for forming an opinion.
The bench of Justice Avinash G. Gharote and Justice M.S. Jawalkar has observed that as per section 83(1) of the Central Goods and Services Tax Act, 2017 it is mandatorily to be followed as it visits the petitioner with penal consequences. It was, therefore, necessary that the order under Section 83(1) of the Central Goods and Services Tax Act, 2017, indicate the reasons which weighed with the Commissioner to form an opinion, that for the purpose of protecting the interest of the Government of revenue and order of provisional attachment was necessary. The mandate of Section 83(1) enjoins upon the Commissioner to pass an order in writing in that regard, the very purpose of which is to embody the reasons for forming such an opinion, which then can be tested in a challenge raised.
The petitioner/assessee has questioned the order dated by which in exercise of powers under Section 83 of the Central Goods and Services Tax Act, 2017, order of provisional attachment of the petitioner has been passed by the respondent department.
The assessee contended that the order is infirm as it does not reflect the opinion of the Commissioner, that for the purpose of protecting interest of the Government revenue it is necessary to do so.
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Section 83 relates to the provisional attachment to protect revenue in certain cases where, after the initiation of any proceeding under Chapter XII, Chapter IIV, or Chapter XV, 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 or any person specified in sub-section (1-A) of section 122, in such manner as may be prescribed.
The court asked the department to point out the reasons for forming an opinion, as order does not reflect any reasons for recording the opinion.
The department in compliance with the direction of the court produced the copy of the original file and drew the attention of the court to the note No.5, which according to him would be the document indicating reasons for the Commissioner forming opinion.
The court stated, “though we are not legally entitled to appreciate the note, as the opinion has to be reflected from order itself, however, in order to satisfy ourselves, we took a look at the note and we find that even that does not contain any reason for forming an opinion by the Commissioner that for the purpose of protecting the interest of the Government revenue, it is necessary to issue an order of provisional attachment of the properties of the petitioner.”
The court while allowing the petition held that in absence of any reason for forming an opinion, the order cannot be sustained and it is quashed and set aside. The matter is remitted back to the Commissioner to record reasons in writing for forming an opinion in case he deems it fit and proper again to do so.
Case Title: Global Tabacc Legacy v/s Union of India
Case No.: Writ Petition No. 4932/2024
Date: 05/09/2024
Counsel For Petitioner: Dr. Sujay Kantawala, Advocate with Mr. Anupam Dighe, Ms.Chandani Tanna, Mr. A.M. Sudame, Advocates
Counsel For Respondent: Mr. N.S. Deshpande, DSGI
