1. An order of provisional attachment of property dated November 9, 2020, passed by the Assistant Commissioner (Anti-Evasion), CGST & C. Ex., Belapur Commissionerate, upon invocation of Section 83 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as ‘the Act’) is under challenge in this writ petition.

2. The primary contention of Mr. Gandhi, learned counsel for the petitioner is that as on date the order of provisional attachment was made, no proceedings under sections 62/63/64/67/73/74 of the Act were pending and, therefore, the jurisdictional fact for invocation of the power conferred by Section 83 did not exist and hence, the draconian power that such provision envisages could not have been exercised. Reliance is placed by him on the decision of the Supreme Court reported in 2021 SCC OnLine SC 334 (Radha Krishan Industries Vs. State of Himachal Pradesh and others) as well as on a decision of a coordinate Bench of this Court dated August 3, 2021 in Writ Petition (L) No.13363 of 2021 (M/s. S.S. Offshore Pvt. Ltd. Vs. Union of India and others) in support of the contention that the order of provisional attachment is ultra vires Section 83 of the Act.

3. Affidavit-in-reply of the respondents dated August 4, 2021 is taken on record. Mr. Mishra, learned counsel appearing for the respondents has referred to para 4 of the reply affidavit to contend that the petitioner’s premises were searched on December 3, 2020 in pursuance of power conferred by Section 67(2) of the Act and, therefore, the contention of the petitioner that no proceedings are pending, lacks substance.

4. We have heard learned counsel for the parties and considered the materials placed before us.

5. For the purpose of deciding the issue of validity and legality of the order of provisional attachment made under Section 83 of the Act, the crucial date in the present case is November 9, 2020 when such order was actually made. It is evident from the reply affidavit that as on November 9, 2020, no proceedings against the petitioner had been initiated. If at all, proceedings were initiated on December 3, 2020 when the search of the petitioner’s premises were conducted. We are also not impressed by the submission of Mr. Mishra that proceedings against M/s. Germanium Trading Pvt. Ltd. had already been initiated prior to the order of provisional attachment dated November 9, 2020. Mr. Gandhi has argued and, in our opinion, rightly that the point sought to be raised by Mr. Mishra has clearly answered by the Supreme Court in paragraph 74 of the decision in Radha Krishan Industries (supra). Proceedings initiated against an entity different from the entity whose bank account is attached would not clothe the concerned officer, otherwise empowered to order attachment of property, to invoke Section 83 without the jurisdictional fact being present. If so invoked, the order has to be held ultra vires Section 83.

6. In view of our satisfaction that no proceedings of the nature as referred to in Section 83 of the Act were pending against the petitioner as on November 9, 2020, we hold that the order of provisional attachment is ultra vires Section 83 of the Act. Accordingly, the order of provisional attachment stands set aside.

7. The writ petition stands allowed with direction to the respondents to forthwith defreeze the bank account of the petitioner. There shall be no order as to costs.

8. This order would, however, not preclude the respondents to proceed in accordance with law.