Dismissed

Mahesh. M. C. v. the State of Karnataka

Karnataka HC26 Mar 2021WP/5242/2021

Case brief

AI extract

What is this about?

Petitioner challenged attachment order under GST Act via writ petition. While government withdrew Section 67 proceedings, Court set aside return order and lifted attachment only on condition of maintaining Rs. 7 lakh security. Legal challenges on delegation and statutory power reserved for future.

What did the court decide?

Order at Annexure-L set aside. Attachment of bank accounts lifted conditional on maintaining Rs. 7 lakh balance as security.

Mahesh. M. C. Vs the State of Karnataka — GST and Indirect Tax | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF MARCH 2021

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BEFORE

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THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV

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WRIT PETITION NO.5242/2021 (T-RES)

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BETWEEN:

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Mahesh M.C. S/o late Mr. Chikkalegowda, Aged about 54 years, Presently residing at No.2084, 11^th Cross, Kuvempunagar, Channapatna, Ramanagar District – 562 160. ... Petitioner (By Sri. Harish V.S. Advocate)

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AND:

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The State of Karnataka, Department of Finance, Vikasa Soudha, Bengaluru-560001. Rep. by its Chief Secretary.

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The Commissioner of Commercial Taxes, Karnataka Vanijya Terige Karyala, Gandhinagar, Bengaluru – 560 009.

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The Assistant Commissioner of Commercial Taxes (Enforcement) New Kandaya Bhavana, B.M. Road,

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Ramanagara – 562 159.

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The Union of India Department of Finance, New Delhi, Rep. by its Secretary.

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…Respondents

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(By Sri.K.Hema Kumar, AGA)

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This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned order passed by the respondent No.2 dated 24.01.2019 i.e., Annexure-A as excessive and contrary to the provisions of Law and etc.,

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This Writ Petition coming on for Orders , this day, the Court made the following:

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ORDER

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The petitioner has challenged the impugned

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order passed at Annexure-A as being contrary to the power conferred under Section 5(3) of the KGST Act, 2017/CGST Act, 2017. The petitioner has also assailed

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the order passed under Section 83 of the CGST Act on

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various legal contentions including that the power under Section 83 of the Act is to be exercised by the commissioner who must be of the opinion that for the purpose of protecting interest of the Government

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revenue there could be an attachment provisionally of property, bank account belonging to the taxable person. Reliance is placed on the judgment of the High Court of Gujarat in Spl. Civil Application No.13132/2019, wherein the High Court of Gujarat has gone in to the aspect of legal challenge as made herein and has held that the satisfaction of the designated officer under Section 83 of the Act must be of the named authority and none else. Further contentions are advanced as regards to the legal contention that the power of the delegation is absent under Section 5(3) of the GST Act.

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It is contended that the principles laid down by the Gujarat High Court regarding impermissibility of delegation needs to be taken note of.

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It is to be noticed that proceedings were

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initiated against the petitioner under Section 67 of the KGST Act, 2017 as per the notice at Annexure-B calling upon the petitioner to furnish documents as detailed at Sl.Nos.1 to 8.

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The petitioner submits that as regards to

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the said notice he had made out a reply dated 16.02.2021 at Annexure-D and that even before any

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reply was made out, attachment of the bank account was made in exercise of power under Section 83 read with Section 5(3) of the KGST Act with respect to the bank accounts at Sl.Nos.1 to 4 of the order at Annexure-C.

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During the course of the proceedings at a

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prior point of time the petitioner was directed as per the order of this Court to be present before the respondent No.3 on 25.03.2021 at 3.00 p.m., and

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clarify requirements of furnishing further information apart from that furnished in the reply at Annexure-D. When the matter is called out today, copy of the proceedings pursuant to the petitioner’s presence before the 3^rd respondent has been filed.

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Statement is made by the learned

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Additional Government Advocate that on the basis of the material available necessary report would be sent to the concerned to initiate assessment proceedings

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as per law and that they do not intend to further proceed with the proceedings under Section 67 of the Act and such submission is stated to be made under instructions of the respondent No.3.

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However it is submitted that in light of the

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statement that invoices were not available as regards to the claim of credit for input tax of 28,75,000/- the petitioner may be called upon to secure the interest of

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the revenue. In light of the said stand by putting the petitioner on terms while noticing the absence of the invoice, at the present point in time as regards to the claim of credit for input tax, the Court is of the view that the petitioner on furnishing bank guarantee of Rs.7,00,000/- the order of attachment may be lifted.

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The learned counsel for the petitioner makes the requests that the relief sought for in the present petition as regards to the exercise of power under Section 83 as well as under Section 5(3) including the challenge as regards to the order at Annexure-A dated 24.01.2019 designating proper officer in terms of Sections 83(1) and 5(3) of the Act be adjudicated upon. However, it must be noted that in light of disposal of the main petition while recording the statement of the Government Advocate stated to be made upon instructions that proceedings under Section 67 of the Act will not be proceeded with on

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the basis of the material made available by the assessee to the department, entering in to the question of validity of the order at Annexure-A and the challenge as regards delegation under Section 83 of the Act by the Commissioner to other person would remain an academic question which need not be adjudicated in the present case and may be dealt with in an appropriate case. Further when the petition is itself being disposed off without the necessity of adjudication there is no warrant to embark upon further adjudication of the legal contention raised. Accordingly, the request of the petitioner for continuing with the present proceedings is rejected. However, the contentions raised by the petitioner are kept open. Accordingly, the petition is disposed off.

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9. In light of the above discussion the order at

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Annexure-L is set aside. However, it is made clear

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that the petitioner is required to maintain a balance of a sum of Rs.7,00,000/- in his account and would not utilize the same, as it would be in the nature of security to be maintained till assessment proceedings are concluded.

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Accordingly, the petition is disposed off.

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Sd/JUDGE

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NS

Mahesh. M. C. v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Mahesh. M. C. v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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