Page 85 - GSTL_26th March 2020_Vol 34_Part 4

2020 ] BINDAL SMELTING PVT. LTD. v. ADDL. DIR. GEN., DIRECTORATE GEN. OF GST 595
sioner is of the opinion that for the purpose of protecting the interest of the Gov-
ernment revenue, it is necessary so to do, he may, by order in writing attach
provisionally any property, including bank account, belonging to the taxable
person in such manner as may be prescribed.
(2) Every such provisional attachment shall cease to have effect after the
expiry of a period of one year from the date of the order made under sub-
section (1).
RULE 159. Provisional attachment of property. - (1) Where the Com-
missioner decides to attach any property, including bank account in ac-
cordance with the provisions of Section 83, he shall pass an order in FORM
GST DRC-22 to that effect mentioning therein, the details of property which
is attached.
(2) The Commissioner shall send a copy of the order of attachment to the
concerned Revenue Authority or Transport Authority or any such Authori-
ty to place encumbrance on the said movable or immovable property,
which shall be removed only on the written instructions from the Commis-
sioner to that effect.
(3) Where the property attached is of perishable or hazardous nature, and
if the taxable person pays an amount equivalent to the market price of such
property or the amount that is or may become payable by the taxable per-
son, whichever is lower, then such property shall be released forthwith, by
an order in FORM GST DRC-23, on proof of payment.
(4) Where the taxable person fails to pay the amount referred to in sub-
rule (3) in respect of the said property of perishable or hazardous nature,
the Commissioner may dispose of such property and the amount realized
thereby shall be adjusted against the tax, interest, penalty, fee or any other
amount payable by the taxable person.
(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 proper-
ty attached was or is not liable to attachment, and the Commissioner may,
after affording an opportunity of being heard to the person filing the objec-
tion, release the said property by an order in FORM GST DRC-23.
(6) The Commissioner may, upon being satisfied that the property was, or
is no longer liable for attachment, release such property by issuing an order
in FORM GST DRC-23.
From the reading of above provisions, we find that during the pendency of any
proceedings under Section 62 (assessment of non-filers of returns) or Section 63
(assessment of unregistered persons) or Section 64 (summary assessment) or Sec-
tion 67 (inspection, search and seizure) or Section 73 (determination of tax not
paid otherwise than fraud) or Section 74 (determination of tax not paid on ac-
count of fraud), the Commissioner may provisionally attach any property includ-
ing bank account. The power of attachment is not absolute. The attachment is
subject to following safeguards :
(i) Order should be passed by Commissioner;
(ii) Proceeding under Section 62 or 63 or 64 or 67 or 73 or 74 should be
pending;
(iii) Commissioner must form an opinion
(iv) Order should be passed to protect interest of revenue.
(v) It must be necessary to attach property.
Expression ‘is of the opinion’ or ‘has reason to believe’ is of same connotation
and is indicative of subjective satisfaction of Commissioner, which depends upon
facts and circumstances of each case. It is settled law that ‘opinion’ must have a
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