M/S Royal Corporation vs State Of Gujarat
2023 Latest Caselaw 4092 Guj

 C/SCA/13711/2022                                 CAV JUDGMENT DATED: 06/06/2023




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


          R/SPECIAL CIVIL APPLICATION NO. 13711 of 2022


FOR APPROVAL AND SIGNATURE:



HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI                                Sd/-

and

HONOURABLE MR. JUSTICE J. C. DOSHI                                     Sd/-


==================================================

1 Whether Reporters of Local Papers may be allowed to see Yes the judgment ?

2     To be referred to the Reporter or not ?                              Yes
3     Whether their Lordships wish to see the fair copy of the              No
      judgment ?
4     Whether this case involves a substantial question of law as           No

to the interpretation of the Constitution of India or any order made thereunder ?

================================================== M/S ROYAL CORPORATION Versus STATE OF GUJARAT ================================================== Appearance:

MR PREMAL R JOSHI(1327) for the Petitioner(s) No. 1 MR. AAKASH GUPTA, AGP for the Respondent(s) No. 1 MS. MAITHILI D. MEHTA, ADVOCATE for the Respondent(s) No.2 ==================================================

CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI and HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 06/06/2023

C/SCA/13711/2022 CAV JUDGMENT DATED: 06/06/2023

CAV JUDGMENT

(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)

[1] By way of this petition under Article 226 of the

Constitution of India, the petitioner has prayed for following

reliefs:-

"6.(a) This Honourable Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction to quash and set aside impugned orders dated 17/06/2022 at Annexure- A Collectively, whereby the respondent authority has passed an order under section 83 of the Gujarat Goods and Services Tax Act, 2017 provisionally attaching (i) Cash Credit Account No.27205501066 with ICICI Bank, Bhavnagar, (ii) Current Account No. 27205501065 with ICICI Bank, Bhavnagar, (iii) Saving Account No. 913020052890081 with AXIS Bank, Bhavnagar, (iv) Current Account No.917020078218171 with AXIS Bank, Bhavnagar and (v) Saving Account No.200010100040488 with AXIS BANK, Bhavnagar;

(b) Pending notice, admission and final hearing of this petition, the Honourable Court may be pleased to direct Respondent No.2 to lift the attachment over (i) Cash Credit Account No.27205501066 with ICICI Bank, Bhavnagar, (ii) Current Account No. 27205501065 with ICICI Bank, Bhavnagar, (iii) Saving Account No.200010100040488 with AXIS BANK, Bhavnagar;

C/SCA/13711/2022 CAV JUDGMENT DATED: 06/06/2023

(c)Be pleased to pass such other and further order as may be deemed fit and necessary in the facts and circumstances of the case;"

[2] The background of the facts which has given rise to this

petition is that petitioner is a proprietary firm, is dealing with

the business of purchase and sales of Oxygen Gas Cylinder, Old

and Used Cylinder, Cylinder Cap etc. and it is also registered

with respondent authority having GST No.24ACKPM9318DIZM

and regularly filing returns and paying the tax as well. The

petitioner received one summons on 02.09.2019 issued in

purported exercise of power under Section 70 of the Central

GST Act, 2017 from the Office of Commissioner, Central Goods

and Services Tax, Bhavnagar directing the petitioner to submit

copy of GST payment along with all necessary details of inward

and outward supplies particulars including the documents in the

form of LR, Ledger etc. The petitioner appeared before the

authority on 09.09.2019 and submitted all necessary documents

in response to the said summons.

[2.1] It is the case of the petitioner that thereafter the

respondent authority has issued another summon on 03.01.2022

C/SCA/13711/2022 CAV JUDGMENT DATED: 06/06/2023

under Section 70(1) of the Central Goods and Services Tax Act,

2017 (hereinafter referred as to the "CGST Act") and also under

Section 70(1) of the GST Act, 2017 and again the petitioner was

directed to produce books of account for the period of

01.07.2017 to till date. The petitioner explained the inability to

produce the books in response to the said summons for the

period from 17.08.2017 to 18.09.2019 since the said particulars

are in the custody of CGST right from 10.09.2019 and rest of the

information the petitioner provided. On such further particulars

being provided, the respondent authority on 08.03.2022

instructed the petitioner to submit further documents, specific

reasons and details as to why the petitioner wrongly claimed

input tax credit ("ITC" for short). In response to the said

communication, on 16.03.2022, according to petitioner, it has

supplied all documents but subsequently a tax liability was

presumed by the authority to the extent of Rs.1,49,75,829/- +

interest + penalty since the petitioner has claimed wrongful

input tax credit and as such, with a view to safeguard the

interest of revenue, by resorting to Section 83 of the Act, the

relevant Bank Accounts were sought to be provisionally

C/SCA/13711/2022 CAV JUDGMENT DATED: 06/06/2023

attached and according to petitioner, such provisional

attachment has been made in conflict with principles of natural

justice.

[2.2] According to the petitioner, the Current Account

No.917020078218171 with AXIS Bank, Bhavnagar and Current

Account No. 913020052890081 with AXIS Bank, Bhavnagar as

well as Current Account No. 913020052890081 with AXIS

Bank, Bhavnagar, which have been attached. The same also

sought by an authority and thereafter with a view to lift the

attachment of the aforesaid Bank Accounts, a request was made

by the petitioner on 23.06.2022. Since there was an attachment

over the Cash Credit Account, the business activity has been

badly effected. The said Cash Credit Account, according to

petitioner, is an account, which enables the assessee to borrow

the money from the bank for the purpose of its business and as

such, a request was made to lift the attachment but instead

authority without compliance of statutory procedure passed an

order on 17.06.2022 which has constrained the petitioner to

approach this Court under Article 226 of the Constitution of

India.

C/SCA/13711/2022 CAV JUDGMENT DATED: 06/06/2023

[3] The Co-ordinate Bench of this Court after initial hearing

was pleased to issue Notice, returnable on 24.08.2022 and by

way of ex parte ad-interim relief directed respondent authority

to lift the attachment over Cash Credit Account

No.27205501066 with ICICI Bank, Bhavnagar and later on, after

submission of affidavit-in-reply, the matter has come up

consideration before this Court in which Mr. Premal R. Joshi,

learned advocate has represented the petitioner whereas Ms.

Maithili D. Mehta, learned advocate appearing on behalf of

respondent No.2 and Mr. Aakash Gupta, learned Assistant

Government Pleader appearing on behalf of respondent No.1.

[4] Mr. Premal R. Joshi, learned advocate appearing for the

petitioner has vehemently contended that the Cash Credit

Account ought not to have been attached since the said account

is enabling the petitioner to borrow the money from the bank for

the purpose of its routine business. It has further been

contended that the said order impugned is passed without

proper application of mind and further is not sustainable in view

C/SCA/13711/2022 CAV JUDGMENT DATED: 06/06/2023

of the fact that as on the date of provisional attachment, there

were no proceedings pending under any provision of the Act.

Mr. Joshi, learned advocate has further contended that the

impugned orders is cryptic in nature and is passed merely on

the assumption especially neither any assessment is framed nor

any demand has been raised in accordance with the scheme of

the Act and as such attaching the Bank Accounts in this

situation is impermissible and as such deserves to be quashed.

[4.1] Mr. Joshi, learned advocate has further submitted that

under the scheme of the Act, there are two prerequisites for

recovering any amount of tax, interest and penalty. Firstly,

framing of assessment or reassessment, and secondly, the

issuance of demand notice. None of the two conditions are

fulfilled in the present case and as such, such a drastic measure

under Section 83 of the CGST Act could not have been resorted.

Every authority is under an obligation to scrupulously apply the

mind and after arriving at a subjective satisfaction only the

powers to be exercised and here in the instant case, this

attaching the Bank Accounts, as indicated, is of far reaching

C/SCA/13711/2022 CAV JUDGMENT DATED: 06/06/2023

consequence upon the routine business activity. As a result of

this, the impugned order being not sustainable, deserves to be

quashed.

[4.2] Mr. Joshi, learned advocate appearing for the petitioner

has relied upon few decisions delivered by Co-ordinate Bench of

this Court, namely, (i) in the case of Patran Steel Rolling Mill

versus Assistant Commissioner of State Tax, Unit 2 reported in

2018 (0) AIJEL-HC 240653; (ii) in the case of Vinodkumar

Murlidhar Chechani Proprietor of M/s Chechani Trading Co.

versus State of Gujarat reported in 2021 (0) AIJEL-HC 242976

and after referring to this, a contention is raised that there is

hardly any justification in the impugned action initiated by the

authority. Hence, the same is required to be corrected by

setting aside. No further submissions have been made.

[5] As against this, Ms. Maithili D. Mehta, learned advocate

appearing on behalf of respondent No.2 and Mr. Aakash Gupta,

learned Assistant Government Pleader appearing on behalf of

respondent No.1 have vehemently opposed the petition and

C/SCA/13711/2022 CAV JUDGMENT DATED: 06/06/2023

contended that the respondent authority had initiated

proceedings under Section 70 of the Goods and Service Tax Act,

firstly, by issuing summons and pursuant to that, the authorized

representative of the petitioner, appeared before the authority,

wherein a specific opportunity was given and further instructed

to supply certain other documents and still such process is on

and as such the respondent authority has prima facie framed

the opinion on the basis of representation made by the

representative of the petitioner and it is only upon such

satisfactory note the authority had initiated steps under Section

83 of the CGST Act to protect the interest of revenue and this

attachment of the Bank Account is the only substantial measure

by virtue of which the interest of revenue can be protected and

therefore, there is no merit in any of the contentions raised by

the petitioner.

[5.1] It has further been contended that the Government had

amended the provisions of Section 83 of the CGST Act, which

covers various chapters in Section 83 of the CGST Act and the

said chapters include the proceedings under Section 70 of the

C/SCA/13711/2022 CAV JUDGMENT DATED: 06/06/2023

Act as well and as such in view of the amendment if the

proceedings under the CGST Act carried out by an authority and

if the proceedings are pending in that eventuality, the

respondent has always got a power to initiate proceedings

under Section 83 of the CGST Act. As such, by referring to the

said amended provision, it has been submitted that the

contentions raised by the petitioner are of no assistance.

[5.2] Ms. Mehta, learned advocate as well as Mr. Gupta, learned

Assistant Government Pleader in chorus have also submitted

that the authority has framed the satisfactory note which was

prepared on the basis of material which was made available

with the authority and supplied by the petitioner and from that

certain factual details which have been gathered has led the

authority to initiate steps for the purpose of securing the

interest of revenue and to substantiate, the learned advocates

have referred to and relied upon relevant paragraph which is

incorporated in the detailed affidavit-in-reply, which has been

affirmed on 27.09.2022.

C/SCA/13711/2022 CAV JUDGMENT DATED: 06/06/2023

[5.3] Ms. Maithili D. Mehta, learned advocate appearing on

behalf of respondent No.2 has submitted further affidavit of

Assistant Commissioner of State Tax-I, Enforcement, Bhavnagar

and has placed on record the notice under Section 74 of the Act

dated 15.03.2023 has already been issued and as such when

that be so, the challenge made in the petition is meritless. On

the contrary, a detail summary of show-cause notice is placed

on 15.03.2023 detailing out all the circumstances, narrated in it,

and has called upon the petitioner as to why the amount which

has been narrated can be recovered from the petitioner with

18% interest by virtue of Section 50(3) as well as 100% penalty

as permissible in law and also called upon the petitioner to

remain personally present if petitioner wishes to avail the

opportunity.

[5.4] Ms. Mehta, learned advocate with a view to assist the

Court has also drawn the attention to the Government Gazette

and pointed out that the amendment of Section 83 which has

been effected by virtue of the Finance Act, 2021, No.13 of 2021

and has submitted that action is well within the authority and

C/SCA/13711/2022 CAV JUDGMENT DATED: 06/06/2023

cannot be said that it is impermissible. In fact, she has also

pointed out the provisions of Section 70 of the Act which deals

with power to summon the persons to give evidence and to

produce the documents and as such has contended that when

the act has authorized the officer to deal with such eventuality,

it cannot be contended by petitioner that action is impermissible

in law. In fact, Ms. Mehta, learned advocate has also drawn the

attention to yet another decision delivered by Co-ordinate Bench

of this Court, which is in the case of Nathalal Maganlal Chauhan

versus State of Gujarat reported in (2020) 114 taxmann.com

425 (Gujarat) and has referred to relevant paragraphs and has

submitted that in the background of present facts and

circumstances, it is always open for an authority to initiate steps

which are challenged in the present proceedings.

[5.5] Apart from that, Ms. Mehta, learned advocate and Mr.

Gupta, learned Assistant Government Pleader in chorus have

submitted that there is no serious prejudice now likely to be

caused to the petitioner in view of the fact that one of the Bank

Accounts in the form of Cash Credit Account No.27205501066

C/SCA/13711/2022 CAV JUDGMENT DATED: 06/06/2023

with ICICI Bank, Bhavnagar has already been lifted from

attachment by virtue of order dated 27.07.2022 and as such

when the petitioner has got a partial relief there is hardly any

reason to continue to invoke extraordinary jurisdiction of this

Court more particularly when the proceedings are already now

set in motion against the petitioner. Hence, the learned

advocates for the revenue have objected to the petition and

requested to dismiss the same with appropriate cost in view of

the background of peculiar circumstances prevailing on record.

The subjective satisfaction which has been arrived at by an

authority cannot be requested to be set at naught in

extraordinary jurisdiction of this Court in the absence of any

mala fide in the petition since there is no an averment worth the

name with respect to any such mala fides against the petition

nor any bias and when that be so the authority which is

exercising statutory function such discretion of an authority

cannot be usurped by the Court under Article 226 of the

Constitution of India and as such has earnestly requested that

when the volume of irregularities found are such which

necessitated the authority to initiate action no interference

C/SCA/13711/2022 CAV JUDGMENT DATED: 06/06/2023

warranted in extraordinary equitable jurisdiction and has

requested to dismiss the petition.

[6] Having heard the learned advocates appearing for the

respective parties and having gone through the material on

record, we perused that the authority has come to a particular

conclusion after satisfied itself on the basis of material which

has already been produced by the petitioner and found that

action is necessitated in the interest of revenue and as such

when the decision is taken on 17.06.2022 on the basis of

material on record and the information which has been

received, we are of the view that the action cannot be said to be

either perverse or impermissible in law more particular when

the proceedings are already set into motion. We are further

posted with the facts by way of further affidavit that the

proceedings in the form of show-cause notice of tax ascertained

being payable by the petitioner under Section 74 of the Act has

already been initiated and for that purpose, on 15.03.2023, a

specific notice in form GST DRC-01 is already issued against the

petitioner under Rule 142(1) of the Rules and from the summary

C/SCA/13711/2022 CAV JUDGMENT DATED: 06/06/2023

of the said show-cause notice, it is quite clear that when the

statutory function is being undertaken by respondent authority

and when there are no allegation of specific mala fides the

function of the authority, in view of settled position of law,

cannot be usurped by the High Court in exercise of

extraordinary equitable jurisdiction when a satisfaction is

arrived at by an authority that interest of revenue deserves to

be protected hence we are of the clear opinion that in the

absence of any material or patent illegality such satisfaction

cannot be disturbed or substituted for the sake of substitution

and we have satisfied ourselves that background of fact is such

where the process cannot be intercepted when it has already

commenced. That be so, no case is made out to call for any

interference under Article 226 of the Constitution of India.

[7] At this stage, we may quote few observations made by

Hon'ble Apex Court on the issue of exercise of extraordinary

jurisdiction as to whether High Court can usurp the discretion

of an authority or not. In case of D.N.Jeevaraj versus Chief

Secretary, Government of Karnataka and others reported

C/SCA/13711/2022 CAV JUDGMENT DATED: 06/06/2023

in (2016) 2 SCC 653, the Hon'ble Apex Court has propounded

on the issue. The relevant observations contained in paras 41

and 43, we may quote hereunder:-

"41. This Court has repeatedly held that where discretion is required to be exercised by a statutory authority, it must be permitted to do so. It is not for the courts to take over the discretion available to a statutory authority and render a decision. In the present case, the High Court has virtually taken over the function of the BDA by requiring it to take action against Sadananda Gowda and Jeevaraj. Clause 10 of the lease-cum-sale agreement gives discretion to the BDA to take action against the lessee in the event of a default in payment of rent or committing breach of the conditions of the lease- cum-sale agreement or the provisions of law.[8] This will, of course, require a notice being given to the alleged defaulter followed by a hearing and then a decision in the matter. By taking over the functions of the BDA in this regard, the High Court has given a complete go-bye to the procedural requirements and has mandated a particular course of action to be taken by the BDA. It is quite possible that if the BDA is allowed to exercise its discretion it may not necessarily direct forfeiture of the lease but that was sought to be pre- empted by the direction given by the High Court which, in our opinion, acted beyond its jurisdiction in this regard.

C/SCA/13711/2022 CAV JUDGMENT DATED: 06/06/2023

43. To this we may add that if a court is of the opinion that a statutory authority cannot take an independent or impartial decision due to some external or internal pressure, it must give its reasons for coming to that conclusion. The reasons given by the court for disabling the statutory authority from taking a decision can always be tested and if the reasons are found to be inadequate, the decision of the court to by-pass the statutory authority can always be set aside. If the reasons are cogent, then in an exceptional case, the court may take a decision without leaving it to the statutory authority to do so. However, we must caution that if the court were to take over the decision taking power of the statutory authority it must only be in exceptional circumstances and not as a routine. Insofar as the present case is concerned, the High Court has not given any reason why it virtually took over the decision taking function of the authorities and for this reason alone the mandamus issued by the High Court deserves to be set aside, apart from the merits of the case which we have already adverted to."

[8] In addition to it, a perusal of the background of facts

which has been placed before us and the same have not been

controverted by way of filing any affidavit-in-rejoinder or in any

form. From the said background, we feel it necessary to quote

hereunder as we have formulated an opinion that this is not a fit

case to exercise extraordinary jurisdiction. We deem it proper

to quote hereunder:-

C/SCA/13711/2022 CAV JUDGMENT DATED: 06/06/2023

"8.1. It is submitted that prima facie it appears from the records that the present Petitioner i.e., Royal Corporation has availed the ineligible input tax credit by showing the purchases form below mentioned fictitious firms:

             Sr.             GSTN                          Firm Name
             No.
            1       24DLBPB5148H1ZG                 7 STAR TRADING CO
            2       24DUXPM2724R1ZO                 A M ENTERPRISES
            3       24FUIPS7956A1ZA                 ABHI TRADERS
            4       24AYHPJ9115A1ZU                 APPLE ENTERPRISE
            5       24EJJPM8321L1ZU                 GAUTAM ENTERPRISE
            6       24AFMPU2832F1ZD                 GREEN TRADERS
            7       24DBXPP6504H1Z7                 GUJARAT ENTERPRISE
            8       24DDNPR1191A1ZO                 GURUKRUPA TRADERS
            9       24CAOPC1073P1ZH                 M M ENTERPRISE
            10      24EAZPB6435H1ZE                 MAHAVIR ENTERPRIS
            11      24DCRPM0355Q2ZX                 NAKSH TRADING
            12      24DCJPR4454M1Z1                 ORANGE SALES AGENCY
            13      24BVNPK2004B1Z8                 R. V. TRADERS
            14      24AYNPJ4123G2ZL                 ROLEX ENTERPRISE
            15      24BKRPM6978H1ZD                 S K ENTERPRISES
            16      24EEZPB4071P1ZT                 S M TRADING
            17      24ACKPZ2060K1Z9                 SHIV ENTERPRISE
            18      24DJOPR3821J1ZU                 VR TRADERS

8.2. From above-mentioned table, it appears that the quantum of purchases from the above-mentioned 18 firms is a tune of Rs.09,81,78685/- (Nine Crores Eighty-one lacs Seventy-eight thousand six hundred eighty-five only) and

C/SCA/13711/2022 CAV JUDGMENT DATED: 06/06/2023

the claimed input tax credit a tune of Rs, 01,49,75,829/-. Therefore, Considering the basic provisions of an availing input tax credit, the preliminary condition is that the taxpayer is required to have valid invoices and actual movements of the goods. From the records available with the Respondent Authority, prima facie it appears that Petitioner has not received any goods from the above- mentioned 18 fictitious firms. Further, it is important to mention that, Most of the owners as per registration records of these fictitious firms, have stated in their deposition under section-70 that their documents have been misused and they have not obtained any GST registration, Therefore, whatever purchases which are made by the present Petitioner are appeared to be from bogus and fictitious suppliers.

8.3. Therefore, it appears that the Petitioner has claimed and utilized the ineligible input tax credit without actual movement of goods, merely by obtaining invoices and e-way bills from the above-mentioned 18 firms which are fake, bogus and fictitious with the intention of evading tax.

8.4. It is submitted that the petitioner has claimed ineligible Input Tax Credit from the above-mentioned 18 fictitious firms. Prima Facie it appears that for payment of tax liability, Royal Corporation has obtained invoices and e-way bills to adjust the tax liability, without receiving actual goods from the above-mentioned 18 fictitious firms.

C/SCA/13711/2022 CAV JUDGMENT DATED: 06/06/2023

8.5. I further say and submit that from the above- mentioned factual aspect it appears that the Petitioner is involved in claiming ineligible input tax credit and the authority conveys prima facie material on record, based on which the Respondent authority had already issued the summons and in view of the proceedings under Section 70 which was pending before the authority, in that case, the Respondent authority has jurisdiction to attach the bank account under Section 83 to protect the Government revenue and therefore the contention which was raised by the Petitioner that the Respondent authority has no jurisdiction to attach the bank account under Section 83 of the CGST, Act and without a frame, the opinion, as well as satisfactory note qua to that aspect, is not sustainable reason being that the Respondent authority has sufficient materials on record. The detailed satisfactory note was prepared and supplied to the Petitioner at the time of attaching the bank accounts and therefore the action of the Respondent authority is just and proper and if the attachment may be removed by this Hon'ble Court, the Government may incur a huge loss. For the sake of the interest of the government revenue the action which was taken under Section 83 of the Act is after satisfying all the conditions as per Section 83 of the Act and therefore the Order which was passed under Section 83 was within the jurisdiction of the Respondent authority and the action taken by the Respondent authority are just and proper. Based on the prima facie materials on the record, this Hon'ble Court may dismiss the petition at the stage where the proceedings are pending before the authority."

C/SCA/13711/2022 CAV JUDGMENT DATED: 06/06/2023

[9] The aforesaid particulars which are provided in the

affidavit-in-reply and gone undenied cannot be ignored by the

Court and when the substantial justice is pitted against

technical consideration, the Court would like to give

predominance to the substantial justice. Hence, when the

authority is out to take a step in the interest of revenue and to

protect the same, this Court would not like to exercise its

extraordinary jurisdiction in this peculiar background of facts

and one additional circumstance which has been brought to the

notice by virtue of further affidavit in which the show-cause

notice dated 15.03.2023 is already issued along with 16.03.2023

steps which are attached along with further affidavit, we see no

reason to entertain the petition in any form and as such the

attachment which has been ordered by an authority does not

deserve to be interfered with.

[10] At this stage, Mr. Premal R. Joshi, learned advocate

appearing for the petitioner has made a reference to the

decisions, which are cited, as indicated above, perusal of the

same would clearly indicate that the said decisions are in the

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peculiar background of facts and a close perusal thereof would

clearly indicate that the said decisions are of no assistance to

the petitioner. A perusal of the decision in the case of Patran

Steel Rolling Mill (supra) would clearly indicate that the

authority is not expected to use the drastic power under Section

83 of the Act, as a matter course, but only after due application

of mind, as clearly mentioned in paragraph 8 of the said

judgment and a perusal of the background of facts, as indicated

above, would clearly go to show that it is not possible to

construe by us that authority has exercised powers under

Section 83 either in a routine manner or in a casual manner.

Hence, the said judgment is of no assistance to the petitioner.

[11] Yet another decision which has been tried to be relief upon

is the decision in the case of Vinodkumar Murlidhar Chechani

Proprietor of M/s Chechani Trading Co. (supra) in which no

doubt the Hon'ble Co-ordinate Bench has propounded the

proposition on the issue of exercise of jurisdiction under Section

83 of the Act by the authority but as said earlier that facts on

hand are peculiar in nature and it is settled position of law that

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whenever there is a change of facts even one additional fact

may make a world of difference in applying the principles laid

down by in any decision. Following are the observations made

by Hon'ble Apex Court in a decision, which is in the case of

State of Madhya Pradesh versus Narmada Bachao

Andolan and another reported in (2011) 7 SCC 639 to the

aforesaid extent:-

59. The Court should not place reliance upon a judgment without discussing how the factual situation fits in with a fact-situation of the decision on which reliance is placed, as it has to be ascertained by analysing all the material facts and the issues involved in the case and argued on both sides. A judgment may not be followed in a given case if it has some distinguishing features. A little difference in facts or additional facts may make a lot of difference to the precedential value of a decision. A judgment of the Court is not to be read as a statute, as it is to be remembered that judicial utterances have been made in setting of the facts of a particular case. One additional or different fact may make a world of difference between the conclusions in two cases. Disposal of cases by blindly placing reliance upon a decision is not proper. (Vide: Municipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38; Govt. of Karnataka & Ors. v. Gowramma & Ors., AIR 2008 SC 863; and State of Haryana & Anr. v. Dharam Singh & Ors. (2009) 4 SCC

340)"

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[12] Now coming to the decision which is in the case of

Vinodkumar Murlidhar Chechani Proprietor of M/s Chechani

Trading Co. (supra) cited by Mr. Joshi, learned advocate, we

may observe that it is clearly mentioned in middle of paragraph

43 that "in the case on hand, we do not propose to interfere with

the investigation already undertaken by the department.

Ultimately, if sufficient material surfaces indicating the

involvement of the writ-applicant in some bogus transaction, the

next step in the process can always be a show-cause notice

under Section 73 or Section 74 the Act and while taking steps of

attachment the grey area which has been indicated by the

petitioner the Revenue or the authority concerned needs to

apply its mind before the power is sought to be exercised". Now

if these observations are taken note of including paragraphs 44

and 47 of the said decision, we are of the clear opinion that the

background of present facts on hand is such where this decision

is of no assistance to the petitioner and we say so, in view of the

fact that a detailed circumstance which are pointed out by an

respondent authority in its affidavit-in-reply as mentioned

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hereinbefore including the detail show-cause notice and the

steps which are taken under Section 74 of the Act, as indicated

above, i.e. on 15.03.2023 as well as 16.03.2023, we refrain

ourselves from exercising extraordinary equitable jurisdiction.

[13] On the contrary, we are also taken to the amendment

which has taken place under Section 83 of the Act by virtue of

the Finance Act, 2021, No.13 of 2021 wherein Section 83 of the

CGST Act substitution under sub-section (1) has been

incorporated. The same is reproduced hereunder:-

"Amendment of Section 83.

115. In section 83 of the Central Goods and Services Tax Act, for sub-section(1), the following sub-section shall be substituted, namely:-

(1) Where, after the initiation of any proceeding under Chapter XII, Chapter XIV, 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 or any person specified in sub-section (1A) of section 122, in such manner as may be prescribed."

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[14] An attempt is made by Mr. Premal R. Joshi, learned

advocate appearing for the petitioner that powers cannot be

exercised by an authority but then it has been clearly asserted

in the stand by an authority in affidavit-in-reply that amendment

of Section 83 of the CGST Act covers various chapters in

Section 83 CGST Act and the said chapters include the

proceedings under Section 70 of the Act and as such in view of

the same if the proceedings under the Central Goods and

Service Tax carried out by an authority and if said proceeding is

pending before any authority in that case the respondent

authority has got power to initiate proceedings under Section 83

of the CGST Act and this stand has gone uncontroverted and as

such we are of the clear opinion that no case is made out by the

petitioner to call for any interference.

[15] At this stage, Ms. Maithili D. Mehta, learned advocate has

successfully tried to assist the Court by referring to the decision

in the case of Nathalal Maganlal Chauhan (supra) wherein in

paragraphs 56 and 57 the Hon'ble Court has already opined on

the issue of delegation of powers. However, here in the present

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case on hand, the background of facts are such which are not

controverted, as indicated above, we are of the opinion that

irrespective of aforesaid issue tried to be canvassed by Mr.

Joshi, learned advocate, facts are such wherein in the absence

of any specific mala fides of any nature, we are not inclined to

intercept the process initiated by an authority in any manner

and we found that this is not a fit case to exercise equitable

extraordinary jurisdiction when an authority has arrived at a

subjective satisfaction on the basis of material on record.

[16] We are conscious about the well defined proposition on

exercise of extraordinary jurisdiction propounded by catena of

decisions hence keeping the same in mind, we would not like to

substitute or dilute the satisfaction which has been arrived at

while initiating step against the petitioner. We also found that

this is not a fit case in which we may exercise our extraordinary

jurisdiction. Accordingly, petition being meritless deserves to

be dismissed. More particularly when there is no serious

prejudice likely to cause since partial relief has already been

extended to the petitioner at the initial stage itself by virtue of

order dated 27.07.2022.

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[17] Present petition stands dismissed. Notice is discharged.

No order as to costs.

Sd/-

(ASHUTOSH SHASTRI, J.)

Sd/-

(J. C. DOSHI, J.)

DHARMENDRA KUMAR