High Court held that the 7-day period for filing objections to provisional attachment under Rule 159(5) of CGST Rules is directory, not mandatory.
Order No. 1/2020 dated 06.02.2020 set aside; proceedings remanded for fresh reasoned order within two weeks.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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versus
| UNION OF INDIA & | ORS. ..... Respondents |
|---|---|
| Through: | Mr.Satish Aggarwala, Sr.Standing Counsel with Mr.Vineet Sharma, Advocate for R-1 and R-2 |
| Mr.Sanjeev Sagar, Advocate/Standing | |
| Counsel for UBI and Ms.Nazia Parveen, | |
| Advocate for R-3 | |
| Mr.Aman Leekha and Mr.Udbhav Kumar | |
| Jain, Advocates for R-5/HDFC Bank | |
| Mr.Avnish Singh, Sr.Panel Counsel for UOI |
CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI HON'BLE MR. JUSTICE SANJEEV NARULA
O R D E R
%
17.02.2020
“a) quash and set aside the impugned orders dated 6.2.2020, 2.12.2019 & 3.12.2019;
b) declare Rule 159(5) of the Rules to the extent it specifies the time period of seven days as ultra-vires of the provisions of Section 83(1) of the Act;
W.P.(C) 1597/2020
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c) Issue a Writ of Mandamus or any other Writ, order or direction;
d) to issue appropriate writ, order or direction, directing to release/restore the six bank accounts as stated in prayer (a) for the exclusive operations of petitioner for running their day to day business affairs;”
| S. No. |
Order C.No. | Balance as on |
Account Number | Bank | Cr. Balance |
|---|---|---|---|---|---|
| 1 | 267/INT/DGGI/H Q/2019/8499 |
31.12.19 | 378501010034789 | Union Bank of India |
4.94,76,201.30 |
| 2 | 267/INT/DGGI/H Q/2019/8500 |
11.2.20 | 5020008548874 | HDFC Bank |
86,51,284.80 |
| 3 | 267/INT/DGGI/H Q/2019/8501 267/INT/DGGI/H Q/2019/8557 |
11.2.20 | 510341000669579 Given new number i.e. 164701601000104 |
Corpor ation Bank |
2,90,533.84 |
| 4 | 267/INT/DGGI/H Q/2019/8502 |
11.2.20 | 135405001069 | ICICI Bank |
1,46,03,591.98 |
| 5 | 267/INT/DGGI/H Q/2019/8558 |
28.1.20 | 034305003448 | ICICI Bank |
1,34,178.44 |
| Total | 7,31,55,790.36 |
W.P.(C) 1597/2020
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been rejected vide order No .01/2020 dated 06.02.2020, only on the ground that the petitioner had not moved under Rule 159(5) of the CGST Rules within a period of 7 days of attachment. Rule 159(5) reads as follows:-
“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 .”
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the court, for reasons to be recorded in writing, but which shall not be later than ninety days from the day of service of summons.”
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“8. Order 8 Rule 1 after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision contained in Order 8 Rule 1 is procedural. It is not a part of the substantive law. Substituted Order 8 Rule 1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactic, delaying the disposal of cases, causing inconvenience to the plaintiffs and the petitioners approaching the court for quick relief and also the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried.
13. it is also to be noted that though the power of the court under the proviso appended to Rule 1 of Order 8 is circumscribed by the words “shall not be later than ninety day” but the consequences flowing from non-extension of time are not specifically provided for though they may be read by necessary implication. Merely, because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the
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provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form.”
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VIPIN SANGHI, J.
SANJEEV NARULA, J.
FEBRUARY 17, 2020 mamta
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3 issues framed by the court
Whether the 7-day time period in Rule 159(5) of the CGST Rules for filing objections to provisional attachment is mandatory or directory.
Whether delay in filing objections beyond 7 days renders the same liable to rejection.
Whether the petitioners objections to provisional attachment orders should be entertained despite being filed beyond 7 days.
Colour shows how this judgement treated each authority
Sambha Ji Vs. GangabaiDistinguished¶24
Sambha Ji Vs. Gangabai, 2009 (240) ELT 161 (SC)
2 provisions across 2 enactments
RR INDIA PVT. LTD
UNION OF INDIA
J KASS
HDFC BANK
VIPIN SANGHI
SANJEEV NARULA
As recorded by the court registry
A petition under Article 226 of the Constitution asking a High Court to issue a writ against the State or a public authority in a civil matter.
Judgements on the same questions, provisions and authorities, from every court
