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Judgment
S. No.,Name of the bank,Account No.
1.,HDFC Bank Ltd.,50100122220961
2.,Standard Chartered Bank,45610028287
3.,Union Bank of India,344902010001127
4.,Standard Chartered Bank,24110205602
person being Milkfood Ltd and not the petitioner. Therefore, the impugned orders cannot be sustained, as this crucial jurisdictional ingredient is",,
missing.,,
4.1. Mr. Sethi says that the other ingredients, provided in Section 83 of the Act, are also missing. The respondent, before triggering the provisions of",,
Section 83 of the Act, had to satisfy itself that there was a “pending†proceeding under the provisions of Section 62 or Section 63 or Section 64 or",,
Section 67 or Section 73 or Section 74 of the Act. Furthermore, Mr. Sethi says that, the respondent was also required to form an opinion, before taking",,
recourse to Section 83 of the Act, that attachment of the petitionerâ€s bank account was necessary for the purpose of protecting the interest of the",,
revenue.,,
4.2. Mr. Sethi says that the principles enunciated in Radha Krishan Industries Case, squarely apply to the instant case. In this context, Mr. Sethi relies,",,
in particular, on paragraphs 41 and 72(iv) & (v) of the judgement rendered in Radha Krishan Industries Case.",,
Analysis and Reasons: -,,
We have heard the learned counsel for the parties and perused the record.,,
5.1. According to us, the submission advanced by Mr. Singh, that the instant petition. under Article 226 of the Constitution, should not be entertained",,
as recourse to an alternate remedy was taken by the petitioner, does not impress us, since the exercise of power under Section 83 of the Act, to begin",,
with, was without jurisdiction. The fact that an alternate remedy is available to a litigant is a self-imposed limitation on the Court; something which did",,
not deter the Court, when notice was issued in the matter, in the first instance, perhaps, given the assertions made in the petition. The Court can, and",,
should exercise its powers, under Article 226 of the Constitution, amongst others, in cases where the impugned action or order concerned is without",,
jurisdiction. In this case, one of the jurisdictional ingredientsâ€, which is missing, is that the petitioner is not a taxable person. This aspect is borne out",,
upon perusal of the impugned orders, which are identical. In the impugned orders, dated 07.12.2020, the respondent adverts to the fact that, Milkfood",,
Ltd. is the taxable person. For the sake of convenience, the relevant portion of one of the impugned orders, appended on page 32 (which concerns the",,
provisional attachment of bank account of the petitioner maintained with HDFC bank), is extracted hereunder:",,
See: Calcutta Discount Co. Ltd. vs. ITO, AIR 1961 SC 372: (1961) 41 ITR 191.",,
“28. In the present case the Company contends that the conditions precedent for the assumption of jurisdiction under Section 34 were not satisfied,,
and come to the court at the earliest opportunity. There is nothing in its conduct which would justify the refusal of proper relief under Article 226.,,
When the Constitution confers on the High Courts the power to give relief it becomes the duty of the courts to give such relief in fit cases and the,,
courts would be failing to perform their duty if relief is refused without adequate reasons. In the present case we can find no reason for which relief,,
should be refused.,,
“It is to inform that M/s Milkfood Limited, having principal place of business at Bhandari House, 5th Floor, 91, Nehru Place, Delhi-110019 bearing",,
registration number as GSTIN 07AAACM5913B1ZY and PAN AAACM5913B, is a registered taxable person under the CGST Act,",,
2017...................â€,,
5.2. As indicated above, we are told that the order rejecting the petitionerâ€s objections under Rule 159(5) was passed on 19.04.2021. This order has",,
not been placed on record. We are also not told of the date on which the objections were filed. On being queried, Mr. Singh concedes that the order,",,
passed under the aforestated Rule, on 19.04.2021, is not appealable.",,
5.3. Subsection 1 of Section 83 of the Act in no uncertain terms states that provisional attachment can be ordered only qua property, including bank",,
account, belonging to the taxable person. Furthermore, the definition of the “taxable personâ€, as set out in Section 2(107) of the Act, provides that",,
only that person can be a taxable person, who is registered or liable to be registered as per the Act. It is not even the case of the respondent that. the",,
petitioner is either registered or was liable to be registered. in terms of the provisions of Section 2(107) of the Act. Therefore, according to us, the",,
proceedings must fail on this score alone.,,
Provisional attachment to protect revenue in certain cases,,
(1) Where during the pendency of any proceedings under section 62 or section 63 or section 64 or section 67 or section 73 or section 74, 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 in such manner as may be prescribed.",,
In this Act, unless the context otherwise requires,â€"â€"",,
(107) “taxable person†means a person who is registered or liable to be registered under section 22 or section 24;,,
5.4. As far as the other submissions are concerned, as to whether or not it could be said that the proceedings under Section 67 of the Act are pending,",,
the same, in our view, need not detain us, for the reasons stated above.",,
5.5. We must, however, indicate that this aspect apart, the respondent has not been able to place before us, any material, which would show that. the",,
concerned officer, before triggering the provisions of Section 83 of the Act, had applied his mind to the other important aspect, which is, that the",,
provision had to be taken recourse to, to protect the interest of the revenue.",,
5.6. In the counter-affidavit, the only aspect that the respondent has pointed out qua the petitioner is the “voluntary†statement made by her on",,
03.12.2020. We have alluded to what the petitioner has said in her statement, which is, in turn, gleaned from the counter-affidavit filed by the",,
respondent. In our opinion, there is nothing in the statement of the petitioner, which would show, that she had anything to do with the purported illegal",,
transaction said to have been carried out between Milkfood Ltd. [i.e., the taxable person], and its suppliers.",,
5.7. The petitioner claimed, in her voluntary statement, that she was paid Rs.1.50 crores in the FY 2019-2020 for rendering services in her capacity as",,
a mentor/advisor to Milkfood Ltd. Therefore, even if we assume, for the moment, that, since investigations are on against the taxable person, and",,
therefore, proceedings are pending under Section 67 of the Act, there is nothing placed on record to show that there was material available with the",,
respondent, linking the petitioner to purported fake invoices. In other words, in the absence of such material, the impugned action concerning",,
provisional attachment of the petitionerâ€s bank accounts, which is otherwise a “draconian†step, was unsustainable. In the zeal to protect the",,
interest of the revenue, the respondent cannot attach any and every property, including bank accounts of persons, other than the taxable person.",,
Conclusion: -,,
Accordingly, for the forgoing reasons, we are inclined to allow the writ petition. It is ordered accordingly. The impugned provisional attachment",,
orders dated 07.12.2020. are quashed. The respondent will communicate the order passed today to the concerned Banks.,,
6.1. Consequently, the order dated 19.04.2021, disposing of the objections filed by the petitioner, would also collapse, in its entirety, as the proceedings",,
carried out against the petitioner were without jurisdiction.,,
All concerned shall act on a digitally signed copy of the judgement passed today.,,
Pending application shall stand closed.,,