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2020 Supreme(Guj) 167
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B.PARDIWALA, BHARGAV D. KARIA, JJ.
Enprocon Enterprise Ltd. - Appellant
Versus
The Assistant Commissioner of State Tax - Respondent
Special Civil Application No. 14129 of 2019
Decided On : 08-01-2020
Advocate Appeared:
For the Appellant : Mr. Ravish D Bhatt(5867)
For the Respondent: Mr. Soaham Joshi, AGP (1) Mr. Nirzar S Desai(2117)
Point of Law:
The Commissioner may, by notification, direct that subject to such conditions, if any, as may be specified in the notification, any power exercisable by any authority or officer under this Act may be exercisable also by another authority or officer as may be specified in such notification.
Headnote:
Constitution of India - Article 226 - Writ Petition - Writ of Mandamus - CGST Act, 2017 - The writ applicant is a company, incorporated under the provisions of the Companies Act, 1956. It is engaged in the business of laying of pipelines, works contract, renting the machinery and sale of old machinery and scrap material, etc. The writ applicant is a company registered under the provisions of the Gujarat Goods and Services Tax Act, 2017 (for short 'the GGST Act, 2017'). It appears that the office premises of the writ applicant situated at Ahmedabad and Baroda were raided by the respondent-Authorities, in exercise of their powers, under Section 67 of the CGST Act, 2017. In other words, search and seizure was undertaken by the Authorities sometime in the months of March and April, 2019. It also appears that the proceedings under Section 73 of the GGST Act, 2017, have been initiated against the writ applicant. Held - The order of provisional attachment passed by the Assistant Commissioner, so far as the immovable property is concerned, is hereby quashed and set aside. In the same manner, the order of provisional attachment of the bank accounts is also hereby quashed and set aside. Consequently, the order of prohibition dated 30th July, 2019, which is annexed as Annexure-”C” to this petition passed under Rule 139(4) of the Rules, 2017, is also quashed and set aside- Petition allowed. (Para 10)
Facts of the Case:
It appears that the office premises of the writ applicant situated at Ahmedabad and Baroda were raided by the respondent-Authorities, in exercise of their powers, under Section 67 of the CGST Act, 2017. In other words, search and seizure was undertaken by the Authorities sometime in the months of March and April, 2019. It also appears that the proceedings under Section 73 of the GGST Act, 2017, have been initiated against the writ applicant.
Finding of the Court:
The order of provisional attachment passed by the Assistant Commissioner, so far as the immovable property is concerned, is hereby quashed and set aside. In the same manner, the order of provisional attachment of the bank accounts is also hereby quashed and set aside. Consequently, the order of prohibition dated 30th July, 2019, which is annexed as Annexure-”C” to this petition passed under Rule 139(4) of the Rules, 2017, is also quashed and set aside.
Result: Petition allowed.
ORDER :
J.B.PARDIWALA, J.
1. By this Writ Application, under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:
"(A) Your Lordship may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction inter alia quashing and setting aside the warrant of authorisation issued under Section 67(2) of the CGST Act, 2017, seizure conducted by the respondents pursuant to search operation initiated on 29.07.2019 and subsequent proceedings / enquiry conducted in pursuance of the search and seizure operation initiated on 29.07.2019, in the interest of justice;
(B) Your Lordship may be pleased to issue a writ of mandamus, or any other appropriate writ, order or direction to the respondents inter alia directing the respondents to return the seized material back to the applicant, in the interest of justice;
(C) Your Lordship may be pleased to further quash and set aside the provisional attachment orders at Annexure ‘A’ (Colly) issued purportedly u/s. 83 of the CGST Act, 2017, in connection with the bank accounts of the applicant and the office premises of the applicant respectively issued to the Branch Manager, HL Commerce College Branch, Central Bank of India, Branch Manager, Naranpura Branch, ICICI Bank, Branch Manager, Vijaya Bank, Ashram Road Branch and City Survey Superintendent, Paldi, Ahmedabad, in the interest of justice;
(D) Your Lordship may be pleased to issue a writ of prohibition or any other appropriate writ, order or direction inter alia quashing the undated show cause notice issued on 01.08.2019 (Annexure B) purportedly issued u/s. 74 of CGST Act, 2017, in the interest of justice.
(E) Your Lordship may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction inter alia quashing the order of prohibition dated 30.07.2019 (Annexure C) passed under rule 139(4) of the CGST Rules, 2017, in the interest of justice.
(F) Pending admission, hearing and final disposal of this application, Your Lordship may be pleased to stay the execution, implementation and operation of the provisional attachment orders as annexed hereto at Annexure A Colly., passed purportedly u/s. 83 of the CGST Act, 2017, in the interest of justice.
(G) Pending admission, hearing and final disposal of this application, Your Lordship may be pleased to stay the execution, implementation and operation of order of prohibition dated 30.07.2019 (Annexure C) passed under rule 139(4) of CGST Rules, 2017, in the interest of justice.
(H) Your Lordship may be pleased to pass such other and further orders as may be deemed just, fit and proper in the facts and circumstances of the case, in the end of justice."
2. The facts, giving rise to this Writ Application, may be summarized as under:
2.1. The writ applicant is a company, incorporated under the provisions of the Companies Act, 1956. It is engaged in the business of laying of pipelines, works contract, renting the machinery and sale of old machinery and scrap material, etc.
2.2. The writ applicant is a company registered under the provisions of the Gujarat Goods and Services Tax Act, 2017 (for short 'the GGST Act, 2017').
2.3. It appears that the office premises of the writ applicant situated at Ahmedabad and Baroda were raided by the respondent-Authorities, in exercise of their powers, under Section 67 of the CGST Act, 2017. In other words, search and seizure was undertaken by the Authorities some time in the months of March and April, 2019. It also appears that the proceedings under Section 73 of the GGST Act, 2017, have been initiated against the writ applicant.
2.4. It further appears that later an order of provisional attachment of the immovable property situated at B-705, Mondeal Heights, near Wide Angle, S.G.Highway, Ahmedabad, came to be passed by the Assistant Commissioner of State Tax in exercise of powers, under Section 8
