1. Leave to delete respondent No.3 from the array of the respondents. Leave to amend the cause title.
2. Heard Mr. D.K. Trivedi, learned advocate for the petitioner and Mr. Utkarsh Sharma, learned Assistant Government Pleader for the respondent.
3. By an order dated 22.10.2018, the following bank accounts of the petitioner came to be provisionally attached under section 83 of the Central Goods and Services Tax Act, 2017 /Gujarat Goods and Services Tax Act, 2017 :
(i) A/c No.917020055857122
(ii) A/c No.917030053366001
(iii) A/c No.200010100069386
4. The said order came to be challenged by the petitioner before this court by way of a writ petition being Special Civil Application No.16931/2018. By a judgment and order dated 20.12.2018, this court set aside the impugned order of attachment dated 22.10.2018. While setting aside the order, the court observed that :
“6. From the facts as emerging on record, it appears that the tax liability of the petitioner in terms of the goods seized as well as the transporter’s statement, the same would not exceed ₹ 13,00,000/. The petitioner has already deposited a sum of ₹ 17,00,000/with the respondent. Insofar as the amount assessed towards the penalty is concerned, in the absence of any proceedings having been undertaken under the provisions of the GGST Act as well as any penalty having been imposed, in the opinion of this court, the respondent authorities were not justified in resorting to such a drastic coercive measure of attachment of the bank accounts and seizure of goods, which results in bringing the business of the petitioner to a grinding halt.
7. Subsection (1) of section 83 of the GGST Act provides that where 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. On a plain reading of the said provision, it is evident that before resorting to such drastic action, the Commissioner is required to form an opinion that it is necessary to do so to protect the interest of the revenue. For the purpose of arriving at such an opinion, the Commissioner should first form an opinion that the petitioner would not be in a position to pay the tax dues after the assessment proceedings are over. In the facts of the present case, the petitioner firm is a going business and the petitioner has readily deposited a sum of ₹ 17,00,00/which covers more than the tax liability that may be assessed. It is not the case of the respondents that the petitioner is a fly by night operator or that it does not have the means to pay the dues that might to assessed at the end of assessment proceedings, which at present have not even been commenced. There is nothing to show that the respondents would not be in a position to recover any amount that the petitioner may ultimately be held liable to pay. In these circumstances, without recording any such satisfaction, the respondent could not have formed the opinion that it was necessary to resort to provisional attachment to protect the interest of the Government revenue. The impugned order of attachment, therefore, cannot be sustained. It is clarified that the fact that the petitioner has deposited a sum of ₹ 17,00,000/during the course of the search proceedings shall not be construed as an admission of such dues on the part of the petitioner.
8. Before parting, the court deems it fit to caution the concerned authorities that while exercising powers under section 83 of The GGST Act, the authorities should try to balance the interest of the Government revenue as well as a dealer to ensure that while the interest of the revenue is safeguarded, the dealer is also in a position to continue with his business, because it is only if the dealer continues with the business that he would generate more revenue. The authorities should keep in mind that bringing the business of a dealer to a halt does not in any manner serve the interest of the revenue. Therefore, while taking action under section 83 or 67(2) of the GGST Act, the concerned authorities should take care to ensure that equities are maintained and while securing the interest of the revenue, they should attempt to see that the dealer is in a position to continue with the business. This court does not intend to lay down any absolute proposition that in no case drastic action should be taken, but that the respondents should consider the background and history of the dealer as well as his financial position to ascertain as to whether or not he would otherwise be in a position to pay the dues that may be assessed upon the culmination of any assessment proceedings that may be initiated. If the dealer is a fly by night operator or a habitual offender or does not have sufficient means to pay the dues that may arise upon assessment, such action may be justified. Such drastic powers under section 83 of the Act should not be exercised as a matter of course, but only after due application of mind to the relevant factors.
For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The impugned order of attachment dated 22.10.2018, attaching the bank accounts of the petitioner, viz., (1) Axis Bank, Bhavnagar, viz., Nos. (a) C/C A/c No.917030053366001, (b) CURRENT A/c No.917020055857122 and (c) Savings A/c No.200010100069386 of Mr. Manish Bansal, (2) IndusInd Bank, Bhavnagar, viz., (a) Savings A/c No.159825708079 of Mr. Manish Bansal, and (b) Term Deposit A/c No.300723646746 and (3) State Bank of India, Bhavnagar, viz., (a) 31638538591 and (b) 31595134117, is hereby quashed and set aside. The impugned seizure order dated 12.11.2018 made under rule 139(2) of the Gujarat Goods and Services Tax Act, 2017 (Annexure “C” to the petition) is also hereby quashed and set aside. The respondents are directed to forthwith release the above mentioned bank accounts as well as the seized goods of the petitioner.”
5. Despite the aforesaid position, by order dated 8.3.2019, once again, the very same bank accounts have been provisionally attached under section 83 of the Central Goods and Services Tax Act, 2017 /Gujarat Goods and Services Tax Act, 2017 by an identically worded order. Both the orders are so identically worded that even after the name of the officer concerned, instead of words ‘Assistant Commissioner of State Tax’ the words ‘Assistance Commissioner of State Tax” are reflected. It is evident therefore, that the concerned officer has once again passed an order in identical terms only by changing the date of the order.
6. The learned Assistant Government Pleader has submitted that when the previous order was passed, no proceedings had been undertaken whereas now a summary order has been made under Rule 142(5) of CG&ST Rules in Form GST DRC07.
7. The concerned officer Mr. S.H. Gandhi, Assistant Commissioner of Sales Tax was personally present before this court. Despite the fact that the learned Assistant Government Pleader had called him for the purpose of obtaining instructions in the matter, the concerned officer has turned up without relevant files. One fails to understand why the concerned officer has at all attended the proceedings, if he had not bothered to come with the files. It is evident that the concerned officer must be availing of leave as well as other benefits for the purpose of coming from Bhavnagar to Ahmedabad. However, in absence of the files, the entire purpose of coming to the High Court is totally frustrated.
8. Besides, it appears that the concerned officer has totally disregarded the findings recorded by this court in paragraph Nos. 6,7,8 and 9 of the above decision, as reproduced hereinabove and with scant regard for the principles enunciated by the High Court in this very case, has proceeded to pass an identically worded order without complying with the principles laid down by this court. It appears that the officers of the concerned department think that they are above the law. This court however, would like to peruse the files pertaining to the impugned order. Hence, the matter is adjourned to 15.4.2019.
9. On that day, the Joint Commissioner of Sales Tax, Bhavnagar, shall ensure that the original file pertaining to the impugned order is produced before this Court for its perusal.
10. In the meanwhile, by way of ad interim relief, the impugned order dated 8.3.2019 passed by the respondent provisionally attaching the property of the petitioner under section 83 of the Central Goods and Services Tax Act, 2017 /Gujarat Goods and Services Tax Act, 2017 is hereby stayed. The provisional attachment over the abovereferred bank accounts of the petitioner shall be forthwith released.
11. Registry to provide a copy of this order to Mr. Utkarsh Sharma, learned Assistant Government Pleader for compliance thereof.
Direct service is permitted.