M/S Neelkanth Entrepreneurs Pvt. Ltd. Thru. Authorized Signatory vs Union of India Thru. Secy. Ministry Finance Deptt. Revenue New Delhi and 4 Others

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Court No. - 2 Case :- WRIT TAX No. - 347 of 2024 Petitioner :- M/S Neelkanth Entrepreneurs Pvt. Ltd. Thru. Authorized Signatory

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Respondent :- Union Of India Thru. Secy. Ministry Finance Deptt. Revenue New Delhi And 4 Others Counsel for Petitioner :- Alok Mishra,Devanand Pandey Counsel for Respondent :- A.S.G.I.,Kuldeep Srivastava,Paavan Awasthi,Vinay Shankar Hon'ble Rajan Roy,J. Hon'ble Manish Kumar,J.

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Sri Dheeraj Srivastava, Advocate has filed his Vakalatnama on behalf of opposite party nos.2 to 4 which is taken on record.

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Heard Sri Pranjal Shukla, learned counsel for the petitioner, Sri Paawan Awasthi, learned counsel for the Union of India and Sri Dheeraj Srivastava, learned counsel for opposite party nos.2 to 4.

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By means of this petition, the petitioner has challenged the provisional order of attachment passed under Section 83 of the CGST ACt, 2017 under which the current account of the petitioner with the opposite party-Bank has been attached.

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The contention of learned counsel for the petitioner is that the order of provisional attachment has been passed in a mechanical manner without looking into the prerequisites/ ingredients which have to be satisfied before passing of such order and as are prescribed under Section 83 aforesaid. He has relied upon a decision of Hon'ble the Supreme Court in the case of 'M/s Radha Krishan Industries vs. State of Himachal Pradesh & Ors.' rendered in Civil Appeal No.1155 of 2021 and reported in AIR (2021) Supreme Court 2114. He has invited our attention to the relevant extracts of the said judgment including the summary findings to contend that passing of an order of provisional attachment is draconian measure and therefore, the ingredients mentioned in the statutes have to be satisfied for a valid exercise of power, strictly so. He has also relied upon a Circular dated 23.02.2021 specifically para no.3.1.3 thereof to contend that even this Circular has not been adhered by the officer passing the order of provisional attachment.

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Learned counsel for opposite party nos.2 to 4 have submitted that it is a case of fake I.T.C., therefore, this Court should not interfere in the matter.

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Sri Paavan Awasthi, learned counsel for the Union of India, though he has not disputed the legal position as laid down in the case of M/s Radha Krishan Industries (supra) nor has

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learned counsel for opposite party nos.2 to 4, but has submitted that the required objections on the requisite format i.e. DRC22A was never filed by the petitioner and instead, this petition has been filed. Therefore, this Court should not interfere in the matter.

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We are of the opinion that though mere non-filing of objections may not necessarily be a ground for not exercising our jurisdiction under Article 226 of the Constitution of India in a case of apparent error, nevertheless, as there is a remedy provided under Rule 159(5) of the Rules made under the CGST Act, 2017, we are of the opinion that ends of justice would suffice if the Commissioner who is authorized to decide the objections of the petitioner under Rule 159(5) is ordered to do so within two weeks of submission of such objections and the objections itself are filed by the petitioner within one week. While doing so, the Commissioner will be bound to take a decision in the light of the Circular dated 23.02.2021 and such other circulars as may be applicable providing guidance for provisional attachment of property under Section 83 of the Act, 2017 and the dictum of Hon'ble the Supreme Court in the case of M/s Radha Krishan Industries (supra) or such other decisions as may be applicable so far as manner and scope of power under Section 83 of the Act, 2017 is concerned. A reasoned decision shall be taken by the Commissioner or whosoever is competent under Rule 159(5) of the Rules, 2017. We would like to see as to how the dictum of Hon'ble the Supreme Court in M/s Radha Krishan Industries (supra) is considered and only for this reason we do not express any opinion on the order of provisional attachment.

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There are other reliefs prayed in the writ petition also.

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Let the decision to be taken as aforesaid be brought on record along with a counter affidavit which shall be filed within six weeks.

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Rejoinder affidavit, if any, shall be filed within two weeks thereafter.

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List thereafter.

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(Manish Kumar,J.) (Rajan Roy,J.)

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Order Date :- 22.1.2025 / Shanu/-

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Digitally signed by :- SHANU SUMAN High Court of Judicature at Allahabad, Lucknow Bench

M/S Neelkanth Entrepreneurs Pvt. Ltd. Thru. Authorized Signatory v. Union of India Thru. Secy. Ministry Finance Deptt. Revenue New Delhi and 4 Others

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M/S Neelkanth Entrepreneurs Pvt. Ltd. Thru. Authorized Signatory v. Union of India Thru. Secy. Ministry Finance Deptt. Revenue New Delhi and 4 Others

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