The Bombay High Court in the case Bharat Parihar Vs. State of Maharashtra observed and has held that the GST provisional attachment order is not valid after one year.
The bench comprising of Justice G.S. Kulkarni and Justice Jitendra Jain in the case observed and has stated that the communication dated 21.04.2022, which provisionally attached the bank account of the petitioner is rendered illegal and invalid by virtue of the provisions of Section 83(2) of the CGST Act. Thus, the extension of the provisional attachment by communication dated 19.04.2023, was illegal.
In the present case, the petitioner or assessee challenged the provisional attachment of the bank account of the Petitioner with the bank as stated under Section 83 of the CGST Act, 2017 and a communication dated 19.04.2022, by which the provisional attachment made on 21.04.2022 is being retained as stated under Section 83 of the CGST Act.
The plea was moved by the petitioner after the objections made to provisional attachment were disposed of as stated under Rule 159(5) of the CGST Rules by the Respondents. The petitioner in the plea contended that as per Section 83(2) states that the provisional attachment under Section 83(1) shall cease to have effect after the expiry of a period one year which being from the date of the order made under subsection (1). Thus, the provisional attachment order is made on 21.04.2022 and which being from the period of one year from the date expired on 21.04.2023.
On the other hand, it has been contended by the respondent in the case that the letter being only the communication to the bankers, with a copy marked for the Petitioner. The copy of fresh order is been passed wherein it is noticed that order sheet, the copy of which is annexed to the reply of the Respondents. Therefore, the fresh order is passed wherein it provisionally attached the Petitioner’s bank account, the provisional attachment of the Petitioner’s account, the provisional attachment of the Petitioner’s account, as it is being informed in the communication dated 19.04.2023 is valid.
The court stated that this court did not find any fresh order having been passed by the Respondents to attach the bank account on 19.04.2023. Further, the court held that the noting’s in the file of the concerned Officer cannot constitute an order without a formal order, as the law may mandate being passed and, most importantly, an order being communicated to the affected person, whose bank account was being attached.
The court while considering the facts and circumstances of the case observed and has stated that the said department has failed to show that the order was passed and served on the petitioner, much less prior to the provisional attachment order ceasing to operate by virtue of the provisions as stated under section 83(2) and the communication dated 19.04.2023.
The counsel, Brijesh Pathak appeared for the petitioner.
The counsel, Shruti D. Vyas represented the respondent.
