銀行口座の差し押さえ権限は、限定的な場合にのみ行使可能です。

In the matter of PROEX FASHION PRIVATE LIMITED VERSUS GOVERNMENT OF INDIA & ORS. (W.P.(C) 11245/2020 & CM APPL. 35053/2020), proceedings were initiated against the petitioner under Section 71 of the CGST Act. 

Pursuant to such proceedings, respondent attached the bank of petitioner on provision basis vide power given under Section 83 of the CGST Act. Petitioner contended that  section 83 can’t be invoked in given case. 

Hon’ble Delhi High court held that action can be taken under section 83  only when proceedings are pending under Section Sections 62, 63, 64, 67, 73 or 74 of the Act and none other. Further, Section 83 uses the phrase ‘pendency of any proceedings’ and therefore, The bank account of the taxable person can be attached against whom the proceedings has been initiated and it is not automatically extended to the cases where an inquiry has been launched. 

Attachment of bank account entails serious consequences to the assessee, therefore, such power must be exercised only in strict compliance with the statutory power, and cannot be extended to cover situations which are not expressly contemplated by the section. If statutory precondition is not satisfied, any order under Section 83 is wholly illegal and unsustainable.

1. Brief Facts of the Case: Provisional Attachment of Bank Account under Section 83 of CGST Act

• M/s Proex Fashion Private Limited (“The Petitioner”) was having a running business.
• Proceedings were initiated against the petitioner under Section 71 of the Central Goods and Service Tax Act, 2017 (CGST Act).
• Pursuant to such proceedings, respondent invoked section 83 of the CGST Act by which the bank account of the petitioner was provisionally attached.
• Therefore, the petitioner filed a petition before hon’ble High Court challenging communication by which the bank of the petitioner was provisionally attached.

2. Contention of the Petitioner: Section 83 can not be initiated for proceedings initiated under Section 71 

Petitioner contended that Section 83 was initiated against the petitioner when proceedings were pending under Section 71 of the CGST Act. However, section 83 can’t be invoked in such a situation.

3. Contention of the Respondent: Section 83 was invoked as grounds were available to initiate proceedings under Section 67 of the Act

Respondent contended that:

• Proceedings were initiated against the petitioner pursuant to a communication received from the Directorate General of Analytics and Risk Management (DGARM).
• DGARM declared the petitioner as a “risky exporter‟. Therefore, to elicit certain information and documents from the petitioner various communications were made to him. However, several communications addressed to the petitioner at its registered office were returned undelivered. 
• Consequently, Proceedings were initiated under Section 71 of the Act and bank account was attached under Section 83 of the Act pursuant to those proceedings.
• Further, reliance was placed on the Standard Operating Procedure dated 23.01.2020,  and the circumstances as mentioned above justified the exercise of power under Section 67 of the Act, which is one of the provisions on the basis of which Section 83 of the Act can be invoked. 
• However, respondent concedes that no proceedings were actually initiated under Section 67 of the Act and the only provision under which action was taken against the petitioner was Section 71 of the Act.

4. Legal Extract

Relevant extract of the CGST Act is reiterated below:

1. Section 83: Provisional attachment to protect revenue in certain cases

“(1) Where during the pendency of any proceedings under section 62 or section 63 or section 64 or section 67 or section 73 or section74, the Commissioner is of the opinion that for the purpose of protecting the interest of the Government 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).”

5. Interpretation by Hon’ble High Court: Conditions given under Section 83 are to be strictly interpreted

Hon’ble High Court carried out following interpretation:

1. It is clear from a plain reading of Section 83 that action thereunder can be taken only upon pendency of the proceedings under Sections 62, 63, 64, 67, 73 or 74 of the Act. 
2. Further, reliance was placed on the decision of Bombay High Court,in Kaish Impex Private Limited vs. Union of India & Ors. 2020 (SCC OnLine Bom 125) wherein following position was taken:
   • Section 83 of the Act refers to the pendency of proceeding under Section 62, 63, 64, 67, 73 and74 only, wherein:
     • Section 63 deals with the assessment of unregistered persons. 
     • Section 64 is regarding a summary assessment in respect of certain special cases. 
     • Section 67 falls in Chapter XIV and refers to the power of inspection, search and seizure. 
     • Section 73 is in Chapter XV wherein it deals with the determination of tax not paid or short paid or erroneously refunded or wrongly availed, utilised for any reason other than fraud or any willful mis-statement made on suppression of facts. 
     • Section 70 confers power on the proper officer to summon any person whose attendance he considers necessary to give evidence or to produce documents or any other thing in any inquiry. Such inquiry is deemed to be a judicial proceeding under Penal Code, 1860.

2. On the date of issuance of order of bank account attachment, no proceedings were initiated against the petitioners and only a summon was issued under Section 70 of the Act. Since, no proceedings were pending under section 62, 63, 64, 73 and 74 of theAct, therefore, the Petitioner contends that power under section 83 could not have been invoked against thePetitioner.
3. Primary defence of the Respondents was that even if section 62, 63, 64, 67, 73 and 74, as mentioned in section 83 of the Act, are not referable to the case of the Petitioner, still a summons has been issued to the Petitioner in pursuant to the inquiry initiated under section 67 of the Act. Therefore, by issuance of summons the proceedings get extended to the Petitioner also.
4. Hon’ble High Court held that:
   • Such interpretation of Section 83 is not permissible and not contemplated by the legistration.
   • Section 83 read with Rule 159(1) of the CGST Rules provides a scheme on how to levy provisional attachment in certain cases. 
   • Section 83 uses the phrase ‘pendency of any proceedings’ and the proceedings are referable to section 62, 63, 64, 67, 73 and 74 of the Act and none other. 
   • The bank account of the taxable person can be attached against whom the proceedings under the sections mentioned above are initiated.
   • Section 83 is not automatically extended to the cases where an inquiry has been launched against the taxable person under these provisions.
   • Further, format of the order, i.e. the form GST DRC-22, specifies which proceedings have been launched against the aforesaid taxable person indicating a nexus between the proceedings and provisional attachment of bank account
   • Power to attach bank accounts is a drastic power and considering the consequences, it has been repeatedly emphasized that this power is not to be routinely exercised. Section 83 empowers the authorities to provisionally attach bank accounts but the same should be within well-defined ambit. 
   • Only upon contingencies provided therein that the power under section 83 can be exercised. This power is to be used in only limited circumstances and it is not an omnibus power.” (Emphasis supplied).

4. さらに、パンジャブ・ハリヤナ州高等裁判所によるBindal Smelting Pvt. Ltd. 対 Additional Director General事件（MANU/PH/2993/2019）の判決において、以下の保護措置が示されています。
   • 命令はコミッショナーによって下されるべきであること。
   • 第62条、第63条、第64条、第67条、第73条、または第74条に基づく手続きが係属中であること。
   • コミッショナーが意見を形成していること。
   • 歳入の利益を保護するために命令が下されること。
   • 財産の差し押さえが必要不可欠であること。

5. したがって、銀行口座の差し押さえは、本件の申立人のような事業継続中の企業にとって、重大な結果をもたらします。
6. 銀行口座を差し押さえる権限は、法定権限を厳格に遵守する場合にのみ行使されるべきであり、同条項で明示的に想定されていない状況にまで拡大解釈することはできません。
7. 法定の前提条件が満たされていない場合、第83条に基づく命令は完全に違法であり、維持することはできません。

6. 結論

本件において、申立人に対して本法の第83条に規定されるいかなる手続きも開始されていません。したがって、係争中の命令は権限外の行為であり、取り消されるべきものです。