GST Case #16/21-22: Hon. SC: To Provide Opportunity of Being Heard Before Attaching a Property Provisionally - Is it at Discretion of Commissioner?
CA Vivek Agarwal
FCA | CS | LLB | Author | Speaker | GST | Income Tax | Partner at HAA
Hon'ble SUPREME COURT:
M/S RADHA KRISHAN INDUSTRIES VERSUS STATE OF HIMACHAL PRADESH & ORS.
Gist:
> The Joint Commissioner (acting on behalf of the Commissioner) has proceeded on an understanding that an opportunity of being heard to the person whose property is provisionally attached is a matter of discretion, the discretion of being that of the Commissioner.
> Merely because proceedings were pending/concluded against another taxable entity, the powers of Sections 83 could also be attracted against the appellant.
> Thus, the order of provisional attachment was ultra vires Section 83 of the Act.
> The writ petition filed by the appellant under Article 226 of the Constitution shall stand allowed by setting aside the orders of provisional attachment
Extract of Rule 159(5): Any person whose property is attached may, within seven days of the attachment under sub-rule (1), file an objection to the effect that the property attached was or is not liable to attachment, and the Commissioner may, after affording an opportunity of being heard to the person filing the objection, release the said property by an order in?FORM GST DRC- 23.
HELD THAT:-
it is evident that the expression ‘adjudicating authority’ does not include among other authorities, the Commissioner.
In the present case, the narration of facts indicates that on 21 October 2020, the Commissioner had in exercise of his powers under Section 5(3) made a delegation inter alia to the Joint Commissioner of State Taxes and Excise in respect of the powers vested under Section 83(1).
The Joint Commissioner, in other words, was exercising the powers which are vested in the Commissioner under Section 83(1) to order a provisional attachment in pursuance of the delegation exercised on 21 October 2020.
This being the position, clearly the order passed by the Joint Commissioner as a delegate of the Commissioner was not subject to an appeal under Section 107(1) and the only remedy that was available was in the form of the invocation of the writ jurisdiction under Article 226 of the Constitution.
The High Court was, therefore, clearly in error in declining to entertain the writ proceedings.
The entire procedure which has been followed by the Joint Commissioner in the present case is contrary to the provisions contained in Section 83 read with Rule 159. The Joint Commissioner (acting on behalf of the Commissioner) has proceeded on an understanding that an opportunity of being heard to the person whose property is provisionally attached is a matter of discretion, the discretion of being that of the Commissioner.
The Commissioner's understanding that an opportunity of being heard was at the discretion of the Commissioner is therefore flawed and contrary to the provisions of Rule 159(5). There has, hence, been a fundamental breach of the principles of natural justice.
Extract of Rule 159(5): Any person whose property is attached may, within seven days of the attachment under sub-rule (1), file an objection to the effect that the property attached was or is not liable to attachment, and the Commissioner may, after affording an opportunity of being heard to the person filing the objection, release the said property by an order in?FORM GST DRC- 23.
We are unable to accept the contention of the respondent that merely because proceedings were pending/concluded against another taxable entity, that is GM Powertech, the powers of Sections 83 could also be attracted against the appellant.
This interpretation would be an expansion of a draconian power such as that contained in Section 83, which must necessarily be interpreted restrictively. Given that there were no pending proceedings against the appellant, the mere fact that proceedings under Section 74 had concluded against GM Powertech, would not satisfy the requirements of Section 83.
Thus, the order of provisional attachment was ultra vires Section 83 of the Act.
The writ petition filed by the appellant under Article 226 of the Constitution shall stand allowed by setting aside the orders of provisional attachment dated 28 October 2020.
No.- Civil Appeal No 1155 of 2021 (Arising out of SLP(C) No 1688 of 2021
2021 (4) TMI 837
Vivek Agarwal FCA, CS, LLB
Hari Agarwal and Associates
Head office: Basheerbagh
Branch office: Jubilee Hills, Road no. 36
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Disclaimer: Update is meant for information purpose only and does not purport to be advice or opinion. It is prepared based on the understanding of the provisions as applicable as on date. The author is not responsible for any error or omission?or?for any action taken based on its contents.