Andhra Pradesh High Court - Amravati
Shree International Vyapar Pvt ... vs The Union Of India on 5 May, 2022
Bench: A V Sai, Ravi Nath Tilhari
HIGH COURT OF ANDHRA PRADESH
MAIN CASE No: W.P.No.12474 OF 2022
PROCEEDING SHEET
Sl. OFFICE
DATE ORDER
No NOTE
05.05.2022 AVSS,J & RNT,J
02
W.P.No.12479 OF 2022
Rule nisi.
Call for records.
Post after four weeks.
_________
AVSS,J
_______
RNT,J
I.A.No.1 OF 2022
In the present writ petition challenge is
to the provisional order of attachment dated
07.04.2022 passed by the Additional Director
General, Directorate General of G.S.T-5th
respondent under Section 83 of the C.G.S.T
Act, 2017 (for short, "the Act").
Learned counsel for the petitioner raises
three contentions viz.,
(i) respondent No.5 has no jurisdiction to
pass the impugned provisional
attachment order under Section 83 of
the Act and it is only the 2nd
respondent-Commissioner of Central
Tax who has jurisdiction to issue
provisional attachment order
(ii) the impugned order of attachment
does not show the recording of
satisfaction by the authority as
mandated under Section 83 of the
Act,
(iii) the 5th respondent did not issue any
notice prior to the order of
attachment.
On the other hand, the learned senior
standing counsel representing the
respondents 2 to 5, Sri Suresh Kumar Routhu
contends that the 5th respondent herein has
jurisdiction and Central Board of Excise and
Customs issued a notification bearing No.14 of
2017-Central Tax dated 1st July, 2017,
conferring power of Commissioner on the
Additional Director General, Goods and
Services also. A copy of the said notification is
placed on record.
Learned counsel further submits that if
the said notification is read along with
Sections 3 and 5 of the Act, the contention of
the learned counsel for the petitioner as to
jurisdiction is liable to be rejected. It is also
his further submission that in terms of Rule
159(5) of the Rules framed under the Act, after
the receipt of the impugned provisional order
of attachment, petitioner herein submitted an
application on 13.04.2022 with a request to
raise the attachment and the said application
was returned as the same was not filed in
proper format and later on 28.04.2022
petitioner filed the same in an appropriate
format and the same stands posted to
10.05.2022 for personal hearing, as such the
present writ petition is liable to be rejected on
the said ground also.
According to Section 83 of the Act
pending proceedings under the provisions of
Sections 62, 63, 64, 67,73 or 74 of the Act, if
the Commissioner is of the opinion that for the
purpose of protecting the interest of the
Government revenue he may by order in
writing attach provisionally any property
including the bank account. The term
„Commissioner‟ is defined under Section 2(24)
of the Act and according to the said provision
of law, Commissioner means the
Commissioner of Central Tax and includes the
Principal Commissioner of Central Tax
appointed under Section 3 of the Act and the
Commissioner of Integrated Tax appointed
under Integrated Goods and Service Tax Act.
According to the learned counsel for the
petitioner, the power to delegate lies only with
the Commissioner under the provisions of
Section 5(3) of the Act and the Board has
absolutely no jurisdiction to exercise such a
power which is specifically conferred on the
Commissioner, as such the notification dated
01.07.2017 recognizing the Additional
Director General also on par with the
Commissioner is of no consequence at all.
Coming to ground No.2 i.e the formation
of opinion under Section 83 of the Act, learned
counsel for the petitioner places reliance on
the judgment of Hon‟ble Supreme Court in the
case of Radha Krishna Industries vs. State
of Himachal Pradesh and others 1. A copy of
the said judgment is also placed on record. In
the said judgment, the Hon‟ble Supreme Court
held that the formation of the opinion must be
based on tangible material which indicates a live
(2021)6 SCC 771
link to the necessity to order a provisional
attachment to protect the interest of the
government revenue.
According to the learned counsel for the
petitioner, the 5th respondent herein did not
adhere to such mandatory requirement while
passing the order of provisional attachment. It is
also submitted by the learned counsel for the
petitioner that in the application filed under Sub
Rule 5 of Rule 159 of the Rules, the petitioner
herein also specifically pointed out the lack of
jurisdiction on the part of the 5th respondent.
A copy of the letter dated 04.05.2022 asking
the petitioner to appear for hearing on 10.05.2022
is also placed on record by the learned standing
counsel, Sri Suresh Kumar Routhu.
Learned standing counsel Sri Suresh Kumar
Routhu has placed reliance on the judgment of
Calcutta High Court in W.P.No.18429 of 2019 to
substantiate his contentions.
Having regard to the submissions of the
learned counsel for the petitioner and in view of
the judgment of the Hon‟ble Supreme Court
referred to supra, this court is of the opinion that
the petitioner has made out a prima facie case.
In view of the above reasons, there shall be
interim suspension as prayed for.
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AVSS,J
_______
RNT,J
Note:
Issue CC in four days.
B/o.
Gk
