ORDER

PER : HONOURABLE MS. JUSTICE SONIA GOKANI

1. By way of the present petition under Article 226 of the Constitution of India, the petitioner seeks the direction upon the respondent authority to lift the attachment on Bank Accounts being (i) Current Account No.32444283699 with State Bank of India, Thakkar Bappa Nagar, Ahmedabad, (ii) Current Account No.918020097072117 with Axis Bank, Bapunagar and (iii) Savings Account No.919010045294509 with Axis Bank, Bapunagar, Ahmedabad. A search operation was carried out on 29/06/2022, which continued till 05/07/2022. The petitioner was served with the copy of Summons under Section 74(5) of GST Act. He was summoned as well. The order under section 83 dated 30/06/2022 in the FORM GST DRC-22 attaching the three bank accounts as mentioned above, had taken place. According to the petitioner, there is no separate order in FORM GST DRC-22 for attaching the current bank account of AXIS Bank of 918020097072117. It is further his grievance that representation filed by him, has not been paid any weight. There are no proceedings under any Acts pending and therefore, the very order of attachment under section 83, is contrary to the law. The power u/s.83 is a drastic power and Rule 159 of the GST Rules, needs to be followed strictly. Therefore, the present petition with the following prayers :

“17. In the premises aforesaid, the petitioner most humbly and respectfully prays that :

(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other writ, orders or directions to quash and set aside impugned order of attachment of bank account in Form GST DRC-03 (at Annexure-C) and (at Annexure-C1) and further be pleased to quash and set aside orders passed under section 83 read with Rules 159 in Form GST DRC-22 dated 05.07.2022 (at Annexure-G) attaching the stock of the petitioner;

(B) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other writ, orders or directions to direct the respondent- authorities to life the attachment on Bank Accounts being (i) Current Account No.32444283699 with State Bank of India, Thakkar Bappa Nagar, Ahmedabad, (ii) Current Account No.918020097072117 with Axis Bank, Bapunagar and (iii) Savings Account No.919010045294509 with Axis Bank, Bapunagar and on stock attached on 05.07.2022;

(C) YOUR LORDSHIPS may be pleased to grant ex-parte, ad interim order in favour of the petitioner herein in terms of prayer clause ‘A’ and ‘B’;

(D) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case.”

2. Affidavit-in-reply on behalf of respondent No.2 has been filed. According to the respondent, as per judgement of this court in the case of UtkarshIspat LLP Vs. State of Gujarat and others rendered in Special Civil Application No.188 of 2022, the petitioner has not offered the property that belongs to him, and the same, therefore, cannot be accepted in lieu of attachment of banks. Contention has been raised that the action of the respondent authority is in accordance with law. It is not in dispute that after the search was conducted, which concluded on 05/07/2022, the order of seizure u/s.67 was passed. Thereafter, the order of attachment u/s.88 of the Act, has been passed by the authority concerned on 30/06/2022.

Residential property has been attached on 05/07/2022 whereas provisional attachment of bank accounts was on 30/06/2022. Drawing of the subjective satisfaction, is subsequent to the attachment of the Bank accounts. Stock Registers and Invoices of the A.Y.2018-19 belonging to the petitioner, were required as the credit pertaining to the transactions conducted during this financial year, were required to be examined.

3. We have heard learned advocate Mr.Hiren Trivedi for the petitioner and learned AGP Mr.Trupesh Kathiriya for the respondent. On instruction, learned AGP has urged that the papers considering F.Y. 2018-19 have been submitted in the department by the petitioner in the month of December and entire scrutiny would be over by the first week of January. It is not being disputed that subjective satisfaction recorded is post attachment of the bank accounts. However, he submits that total liability was more than Rs.9 Crores after including the penalty and interest. Otherwise, it comes to around Rs.3.30 Crores. The immovable property attached is also on 05/07/2022.

4. Noticing the factum of attachment of the bank accounts during the search proceeding, without any subjective satisfaction and the issue of passing of provisional order under section 83 before even such proceedings were completed, without there being any pendency of the proceedings, this court in the final hearing can adjudicate all these issues, but the court needs to indulge at this stage.

5. On filing an Undertaking before this Court of maintaining the balance of Rs.5,88,153/- in savings account No.919010045294509 and balance of Rs.88,843/- in current account No.918020097072117 of Axis Bank, Bapunagar, the petitioner is permitted to operate his current account No.918020097072117 of Axis Bank, Bapunagar, upon the attachment being lifted on his current account.

6. Let the scrutiny be completed by 11/01/2023. The matter shall be heard on that day finally.