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English | हिंदी | தமிழ்

High Court quashes provisional attachment order as the same was without authority of commissioner as per section 83.

High Court observed multiple flaws in the order such as

a) The provisional attachment has been carried out by Joint Commissioner. The record does not disclose any authorization by the Commissioner to the Joint Commissioner to carry out provisional attachment.

b) No proceedings were initiated against the petitioner (whose bank was attached) u/s 67.

c) Authorization under section 67 was given in respect of petitioner son's firm, that too by an officer of the rank of Deputy Commissioner though as per section 67 such authorization should be by a proper officer not below the rank of Joint Commissioner.

d) Petitioner was only summoned under section 70 of the MGST Act to tender evidence as a witness in connection with proceedings under section 67 in the case of a different business entity distinct from the petitioner.

Held by High Court

It is evident that the search and resultant investigation was carried out in respect of M/s. Prarush Impex. Authorization under section 67 was given in respect of M/s. Prarush Impex, that too by an officer of the rank of Deputy Commissioner though as per section 67 such authorization should be by a proper officer not below the rank of Joint Commissioner There is no such authorization under section 67 of the MGST Act in respect of M/s. Praful Nanji Satra. Shri Praful Nanji Satra was summoned under section 70 of the MGST Act to tender evidence as a witness in connection with proceedings under section 67 of the MGST Act and section 64 of the Maharashtra Value Added Tax Act, 2002 in the case of M/s. Satra Retail Private Limited which prima-facie is a different business entity distinct from M/s. Praful Nanji Satra. Thus, it is evident that there was no proceeding against M/s. Praful Nanji Satra or against Shri Praful Nanji Satra under section 67 of the MGST Act. If that be so, then invocation of power under section 83 of the MGST Act against the petitioner would not be justifed. On this ground alone, the impugned provisional attachment of the bank account of the petitioner is liable to be interfered with.

Under section 83 of the MGST Act, it is the Commissioner which has the competence to carry out provisional attachment of property including bank account subject to fulfllment of the preconditions of section 83. As we have already noticed, the word 'Commissioner' is a defined expression under section 2(24) of the MGST Act meaning a Commissioner of State Tax appointed under section 3 which includes Principal Commissioner or Chief Commissioner of State Tax appointed under section 3. The impugned provisional attachment has been carried out by respondent no.3 i.e. Joint Commissioner of State Tax. The record does not disclose any authorization by the Commissioner to the Joint Commissioner to carry out provisional attachment. There is also no averment to that effect in the reply affidavit of the respondents. That apart, section 83 does not provide for such delegation or authorization. The opinion contemplated under section 83 of the MGST Act that to protect the interest of government revenue, it is necessary to provisionally attach any property including bank account has to be necessarily that of the Commissioner. No such opinion of the Commissioner is discernible from the record. Attachment of property including bank account of a person even if provisional is a serious intrusion into the private space of a person. Therefore, section 83 of the MGST Act has to be strictly interpreted.

Since the impugned attachment of bank account has been found to be without jurisdiction, availability of alternative remedy in the form of fling objection under rule 159(5) of the MGST Rules would be no bar to the petitioner from seeking relief under writ jurisdiction.

Consequently and in the light of the above, we are of the opinion that the impugned provisional attachment order dated 19.06.2020 cannot be sustained. The same is hereby set aside and quashed.