Heard Sri Shailendra Jaiswal, learned counsel for the petitioner and Sri Gaurav Mahajan, learned counsel for the Revenue.

Challenge has been raised to the communication dated 1.2.2021 issued under Section 83 of the CGST Act, 2017 (hereinafter referred as the Act) read with Rule 159(1) of the CGST Rules, 2017 (hereinafter referred as the “Rules”).

By the impugned communication dated 1.2.2021 respondent no.2 has attached the petitioner’s bank Account No.01532320003030, HDFC 0000153, HDFC Bank LTD., C-29, RDC Raj Nagar, Ghaziabad, Uttar Pradesh in exercise of his power conferred under Section 83 of the Central Act read with Rule 159(1) of the Central Rules. Learned counsel for the petitioner submits, other than simple recital of the language of the statute there is no fact, circumstance or material existing on record nor is apparent from the face of the impugned communication as may have given rise to the harsh consequence of attachment of the petitioner’s bank account. It appears, the petitioner is engaged in a business activity for which purpose it is maintaining the aforesaid account. It has been pleaded, its business has been adversely impacted as a result of the impugned communication though the interest of the revenue had not been prejudiced in any manner by the petitioner.

He has relied on a decision of the Supreme Court in Civil Appeal No.1155 of 2021 (M/s Radha Krishan Industries Vs. State of Himanchal Pradesh and others) decided on 20.4.2021 wherein paragraph 72 (iv to vii) of the judgement it was held as under:

“(iv) The power to order a provisional attachment of the property of the taxable person including a bank account is draconian in nature and the conditions which are prescribed by the statute for a valid exercise of the power must be strictly fulfilled;

(v) The exercise of the power for ordering a provisional attachment must be preceded by the formation of an opinion by the Commissioner that it is necessary so to do for the purpose of protecting the interest of the government revenue. Before ordering a provisional attachment the Commissioner must form an opinion on the basis of tangible material that the assessee is likely to defeat the demand, if any, and that therefore, it is necessary so to do for the purpose of protecting the interest of the government revenue.

(vi) The expression “necessary so to do for protecting the government revenue implicates that the interests of the government revenue cannot be protected without ordering a provisional attachment;

(vii) The formation of an opinion by the Commissioner under Section 83(1) must be based on tangible material bearing on the necessity of ordering a provisional attachment for the purpose of protecting the interest of the government revenue.”

On the other hand, learned counsel for the Revenue contends that the investigation and adjudication are pending against the petitioner. It was therefore, incumbent on respondent no.2 to exercise his power and secure the demand likely to arise upon the conclusion of the adjudication proceeding.

He has relied on a decision of this Court in R.J.Exim Vs. Principal Commissioner of CGST reported in 2021(45) GSTL 104. In view of the case it was observed as under:

“11. The impugned Provisional attachment order has been issued by the competent authority under Section 83 of the Act for the purpose of protecting interest of the Government revenue. Against the order of Provisional attachment under Section 83(1) of the Act, the petitioners have an opportunity to file an objection under sub-Rule 5 of Rule 159 of the Rules. It has been admitted before us by Learned Counsel for the petitioners that the petitioners have not filed any objection against the impugned provisional attachment dated 22-7-2020. Therefore, the impugned orders cannot be said to suffer from any manifest error of law.”

To the same effect, reliance has been placed on an another decision of Punjab & Haryana High Court in Magna Wires Pvt Ltd Vs. Union of India reported in 2021(51) GSTL5 (P& H).

Having heard the learned counsel for the parties and having perused the record, we find that the issue brought before us is squarely covered by the decision of the Supreme Court in M/s Radha Krishan Industries (Supra).

In view of the undisputed facts, no useful purpose would be served in keeping the petition pending or calling for a counter affidavit, at this stage.

Applying the law laid down by the Supreme Court, the paragraph 72 (iv) to (vii) of M/s Radha Krishan Industries (Supra), the impugned communication dated 1.2.2021 issued under Section 83 of the CGST Act, 2017 is found to be wholly laconic and inadequate.

Accordingly, the impugned communication dated 1.2.2021 issued under Section 83 of the CGST Act, 2017 is set aside. The aforesaid bank account of the petitioner may be released from attachment, forthwith.

The writ petition succeeds and is allowed.

However, it is left open to respondent no.2 to pass a fresh order strictly in accordance with law, as noted above.