The necessity of the formation of opinion by the Commissioner, the live nexus to the purpose of protecting the interest of the government revenue, and the existence of tangible material before the Commissioner to form the opinion for provisional attachment.

JUDGMENT :

Surya Prakash Kesarwani, J.

1. Heard Sri Alok Saxena, learned counsel for the petitioner; Sri S.P. Singh, learned Additional Solicitor General of India assisted by Sri Sudarshan Singh, learned counsel for the respondent no.1 and Sri Dhananjay Awasthi, learned Senior Standing Counsel for the respondent no.2.

2. This writ petition has been filed praying for the following relief :

“1. Issue a writ of certiorari quashing order dated 19.05.2022 passed by the respondent no.02 i.e. the Commissioner of Central Goods and Service Tax Act, Ghaziabad directing provisional attachment of the bank accounts of the petitioner and of his firm, detailed in Para 5 of this Writ (Tax) Petition.”

3. The petitioner is a proprietor of M/s. S G Plastic Industries, B-19 Roop Nagar Industrial Area, Loni, Ghaziabad, engaged in manufacturing of plastic granules and its compounding.

4. Earlier, Bank account of the petitioner was attached under Section 83 of The Central Goods & Services Tax Act, 2017 (hereinafter referred to as ‘the CGST Act, 2017’) by order dated 22.10.2021, passed by the respondent no.2, against which the petitioner filed Writ Tax No. 448 of 2022 (Varun Gupta Versus Union of India and another) and the writ petition was allowed by order dated 11.05.2022 on the ground that no proceeding under Section 74 of CGST was pending as on the date of attachment. It was further observed that amended provisions of Section 83 of the CGST Act were not available when the attachment order was passed.

5. Consequently, the respondent no.2 has passed the order dated 18.05.2022 intimating the Bank that the attachment has been quashed but on the very next day, the respondent no.2 has passed the impugned order dated 19.05.2022, which is reproduced below:-

"To

The Branch Manager

AXIS Bank, D-46,

RDC, Raj Nagar, Ghaziabad

Provisional attachment of property under section 83 of CGST Act, 2017

It is to inform that M/s S.G. Industries (proprietor Sh. Varun Gupta) having principal place of business at B-19, Roop Nagar Industrial Area, Loni, Ghaziabad bearing registration number as 09ANFPG 1119E1ZH and PAN ANFPG1119E is a registered taxable person under the Act.

Proceedings have been launched against the aforesaid person under section 67 and Section 74 of the said Act to determine the tax or any other amount due from the said person. As per information available with the department, it has come to my notice that the said person has a bank account in your bank having account no.916010071529025.

In order to protect the interests of revenue and in exercise of the powers conferred under section 83 of the Act, I Alok Jha, Commissioner, CGST, Ghaziabad, hereby provisionally attach the aforesaid account.

No debit shall be allowed to be made from the said account or any other account operated by the aforesaid person on the same PAN without the prior permission of this department.

(ALOK JHA)

Commissioner"

6. As per impugned order proceedings under Sections 67 and 74 has been launched against the petitioner. However, learned counsels for the respondents have admitted before this Court on 14.07.2022 that “no proceedings under Sections 74 of the CGST Act, 2017 has yet been initiated”. This fact has been recorded by this Court in paragraph 3 of the order dated 14.07.2022. After noticing the facts of the case in the aforesaid order date 14.07.2022, this Court referred to various paragraphs of the judgment of Hon’ble Supreme Court in the case of Radha Krishan Industries Vs. State of Himachal Pradesh and others (2021) 6 SCC 771 and observed in paragraph 4 as under :

“Despite being being repeatedly asked by us, learned ASGI and learned counsel for respondent no. 2 could not produce any opinion of the respondent no. 2 before this Court under Section 83 of the CGST Act, 2017 indicating that the Commissioner has recorded his opinion on some materials that it is necessary to attach the bank account of the petitioner to protect the interest of revenue.”

7. In the case of Radha Krishan Industries (su