1. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:

“(a) to quash and to set aside the action under section 83 taken by the respondent no.4;

(b) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the Respondents

(i) To lift the attachment of property;

(ii) Not to take any coercive action against the petitioner.

(c) To issue order(s), direction(s), writ(s) or any other relief(s) as this Hon’ble Court deems fit and proper in the facts and circumstances of the case and in the interest of justice;

(d) To award costs of and incidental to this application be paid by the Respondents.”

2. We need not dealt much into the facts of the present litigation as this writ application can be disposed of on a short ground. A Co-ordinate Bench of this Court passed the following order dated 19.08.2021:

“Learned AGP Trupesh Kathiriya for respondent – State has placed on record a copy of the remarks by the Assistant Commissioner of State Tax, Unit-60, Surat – respondent No. 4. From the said remarks, it appears that no proceedings under either Sections 73 or 74 were pending on the date of order passed for the provisional attachment of the property of the petitioner under Section 83 of the GST Act. It is needless to say that the powers under Section 83 of the GST Act with regard to provisional attachment could be exercised only during pendency of proceedings either under sections 62 or Section 63 or Section 64 or Section 67 or Section 73 or Section 74. Hence, prima-facie the exercise of powers under Section 83 of the GST Act appears to be arbitrary and dehors the said provision. Under the circumstances respondent No. 4 is called upon to state on affidavit as to under what circumstances the impugned order of attachment was passed.

Put up on 02.09.2021.

In the mean time, the respondent No. 4 is directed to lift the provisional attachment forthwith, if not done so far.”

2.1 Thus, with the grant of the relief by the Co-ordinate Bench in the form of a direction to lift the provisional attachment forthwith, the writ application could be said to have been allowed on the very same date. In other words, it could be said that the final relief was granted by the Coordinate Bench.

3. We have heard Dr. Poddar, the learned counsel appearing for the writ applicant and Mr. Chintan Dave, the learned AGP appearing for the State- respondents.

4. It is not in dispute that form GST DRC-07 order was passed on 16.03.2020 by which the authority has fixed the liability to the tune of ₹ 3,56,15,507/- only towards the penalty, to be paid by the writ applicant. Dr. Poddar, pointed out that his client has challenged this order in form GST DRC- 07 dated 16.03.2020 by filing an appeal before the first appellate authority.

5. The short point for our consideration is that after passing order in form GST DRC-07 dated 16.03.2020 whether the authority could have passed an order of provisional attachment of property under Section 83 of the Act.

6. In our opinion, the answer has to be in the negative. There is no question of invoking Section 83 of the Act for the purpose of provisional attachment once the final order in form GST DRC-07 is passed. At this stage, we may look into sub clause 3 of Section 79 of the Act. Section 79(3) reads thus:

“(3) Where any amount of tax, interest or penalty is payable by a person to the Government under any of the provisions of this Act or the rules made thereunder and which remains unpaid, the proper officer of State tax or Union territory tax, during the course of recovery of said tax arrears, may recover the amount from the said person as if it were an arrear of State tax or Union territory tax and credit the amount so recovered to the account of the Government.”

7. The plain reading of the above referred provision would indicate that if any amount of tax, interest or penalty like the one in our case is payable by a person to the Government under any of the provision of this Act or the Rule then such amount can be recovered by a proper Officer of State Tax or the Union Territory as the case may be, as if it were an arrear of State Tax or the Union Territory Tax. In other words, this provision can be interpreted or can be understood as recovery of any debts, interest or penalty by way of revenue measures. Its like recovery under the Bombay Land Revenue Code. This is possible or rather permissible only after proper attachment of any property of the assessee. This attachment which we are talking about has nothing to do with the provisional attachment under Section 83 of the Act. For the purpose of sub clause 3, the attachment is permissible even under the provisions of the Bombay Land Revenue Code.

8. In such circumstances referred to above, the impugned order of provisional attachment purported to have been passed under Section 83 of the Act could be said to be without jurisdiction. The same is hereby quashed and set aside. We leave it open to the respondents to initiate appropriate proceedings in accordance with law, if they intend to do so.