Page 98 - GSTL_14th May 2020_Vol 36_Part 2

200 GST LAW TIMES [ Vol. 36
any such demand, the amount equal to such demand shall be retained and
the remaining amount returned to the petitioner.”
26. Counsel for Revenue has relied on Shrimati Priti (supra) for but-
tressing the argument that fresh issue of provisional attachment orders is per-
missible even after the expiry of one year period as prescribed under the Act. The
relevant paragraph of the judgment is as follows :
“13. Contention that an order of provisional attachment can last only for
one year and that no further order thereafter, can be passed is not borne out
from statutory provisions contained in Section 45 of the Act. It is undoubt-
edly true that sub-section (2) of Section 45 statutorily provides for maxi-
mum life of a provisional order to last not beyond one year from the date of
order. There is nothing in the language used in the said section to suggest
that upon completion of such a period, no fresh order could be passed.
Reading any such requirement or limitation would amount to supplying
words not used in the section itself. Section 45 of the Act aims to protect
Revenue’s interest pending assessment proceedings by empowering the
competent authority to pass provisional attachment order. To obviate, ob-
vious inconvenience to an assessee, such provisional attachment order can-
not be effective beyond one year. However, that by itself does not mean
that if assessment proceedings are not completed within the said period
and where the satisfaction of the Commissioner or his delegate that such at-
tachment is required to safeguard interest of the Revenue looking to the
dues of the dealer, no such fresh order could be passed. The section thus on
one hand, require the competent officer to review the situation compulsori-
ly at least upon completion of the period, while so doing, does not limit his
discretion to exercise such powers again if situation so arises. Contention of
the petitioner that upon completion of maximum period prescribed under
sub-section (2) of Section 45, no fresh order of provisional attachment could
be passed, therefore cannot be accepted.”
27. While deciding the issue of provisional attachment under Section 45
of the VAT Act, the Court in Kaithal Timber Pvt. Ltd. (supra) has held that the in-
terest of government revenue must be given importance while interpreting the
section for provisional attachment. It further held that after a provisional order
ceases to remain in force, a fresh order under the same provision could be
passed. Relevant paragraph of the judgment is attached below :
“5. The statute has not provided any prohibition on fresh order of attach-
ment being passed. Sub-section (2) of section 45 would, in any case, ensure
that even if the Commissioner or the authority in whom the power of the
Commissioner under sub-section (1) of section 45 have been delegated is of
the opinion that the attachment should continue, it would be necessary that
a fresh order be passed. This would ensure that the authority would exam-
ine the current position and would take a fresh decision that to protect the
interest of Government revenue, it is necessary to pass fresh order of provi-
sional attachment and that the earlier order of attachment would not me-
chanically continue indefinitely.”
28. ““Bad facts make bad cases” - the court crafts its decision to create
an outcome dictated by the facts, instead of an outcome based on a proper legal
analysis” - I am very well aware of the above adage and do not intend to fall
prey to the same. Ergo, the interpretation of Section 83 of the CGST Act, 2017 is
not based on the facts that have been presented by the respondents in their affi-
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