# Sri Alok Saxena v. U.O.I. & Anr

- **Citation:** (2022) 9 ILRA 164
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-29
- **Case number:** Writ Tax No. 858 of 2022
- **Bench:** Surya Prakash Kesarwani, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-alok-saxena-v-u-o-i-anr-49059
- **Pages:** 9

## Headnote

A.S.G.I.,
Sri
Sudarshan
Singh,
Sri
Dhananjay Awasthi

A. Tax Law - Attachment of bank
accounts - The Central Goods & Services
Tax Act, 2017- Sections 74 & 83 - A more
stringent
requirement
than
a
mere
expediency, has been provided in S.83.
The exercise of unguided discretion cannot be
permissible because it will leave citizens and
their legitimate business activities to the peril
of arbitrary power. There must be a valid
formation
of
the
opinion
that
a
provisional attachment is necessary for
the purpose of protecting the interest of
the government revenue. This necessarily
requires existence of tangible material
before the Commissioner so as to enable
him to form his opinion for provisional
attachment
of
the
property
of
an
assessee/person including bank account,
which may indicates a live link to the
necessity
to
order
a
provisional
attachment to protect the interest of the
Government Revenue. (Para 7, 11)

When the exercise of the power is
challenged, the validity of its exercise
will depend on a strict and punctilious
observance
of
the
statutory
preconditions by the Commissioner. While
conditioning the exercise of the power on the
formation of an opinion by the Commissioner
that "for the purpose of protecting the
interest of the government revenue, it is
necessary so to do", it is evident that the
statute has not left the formation of
opinion
to
an
unguided
subjective
discretion of the Commissioner. The
formation of the opinion must bear a
proximate and live nexus to the purpose of
protecting the interest of the government
revenue. (Para 7)

An anticipatory attachment of this nature
must strictly conform to the requirements,
both substantive and procedural, embodied
in the statute and the rules. (Para 7)
9 All. Sri Alok Saxena Vs. U.O.I. & Anr.
165
Plane reading of Section 83 of the CGST Act
leaves no manner of doubt that

1) firstly, there is necessity of the
formation of opinion by the Commissioner;
2) secondly, the opinion must be formed
before ordering a provisional attachment;
3) thirdly, the opinion must indicate that it
is necessary so to do for the purpose of
protecting the interest of the government
revenue;
4) fourthly, the order must be in writing
for the attachment of any property of the
taxable person; and
5) fifthly, observance of the Rules by the
Commissioner in regard to the manner of
attachment. Each of these components of
S.83 are integral to a valid exercise of
power.
6) The expression "it is necessary so to do"
clearly evidences an intent of the legislature that
an attachment is authorized not merely because
it is expedient to do so but because it is
necessary to do so in order to protect interest of
the government revenue.
7) The word "necessary" postulates that the
interest of the revenue can be protected only by
a provisional attachment without which the
interest of the revenue would stand defeated.
(Para 11)

Each of the aforenoted ingredients of S.83 must
be strictly applied and complied before a
provisional attachment on the property of an
assessee can be made. (Para 7, 11)

Facts of the present case clearly reveal that no
proceedings u/s 74 of the C.G.S.T. Act has yet
been initiated. Respondent No. 2 while passing
the impugned order, has neither recorded
his opinion nor referred to any tangible
material which necessitated him to pass
the
impugned
provisional
attachment
order so as to protect the interest of the
Government revenue. The basic ingredients
required for passing the impugned order u/s 83
of the CGST Act as also authoritatively
pronounced by Hon'ble SC and binding upon the
respondents u/Art. 141 of the Constitution of
India, have been deliberately and completely
ignored by the respondent No. 2. Despite the
earlier order having been quashed by this Court,
the respondent No. 2 has chosen to pass the
impugned order on the very next day of
withdrawing the earlier order. The impugned
order has been passed in a most arbitrary and
illegal manner and in c

## Text

164 INDIAN LAW REPORTS ALLAHABAD SERIES
recording of satisfaction under section 151
is a designated Income Tax Authority under
section 282 A of the Act 1961, is left open.

31. For all the reasons aforestated, the
above noted writ petitions, namely, Writ
Tax No. 554 of 2022, Writ Tax No. 370 of
2022, Writ Tax No. 427 of 2022, Writ Tax
No. 475 of 2022, Writ Tax No. 487 of
2022, Writ Tax No. 555 of 2022, Writ Tax
No. 642 of 2022 and Writ Tax No. 710 of
2022 are hereby allowed. The impugned
notices under section 148 of the Act, 1961
and the reassessment orders, if any, passed
by
the
Assessing
Officer
and
all
consequential
proceedings
are
hereby
quashed. Concerned Income Tax Authority
shall be at liberty to initiate proceedings, if
still permissible, strictly in accordance with
law and on due observance of the relevant
provisions of the Act, 1961 and the Rules
framed thereunder.

32. Writ Tax No. 694 of 2022 is
dismissed inasmuch as
recording of
satisfaction by the PCIT and issuance of
notice under section 148 by the Assessing
Officer are simultaneous. Liberty is granted
to the petitioner to file appeal to challenge
the reassessment order.
----------
(2022) 9 ILRA 164
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Writ Tax No. 858 of 2022

Sri Alok Saxena ...Petitioner
Versus
U.O.I. & Anr. ...Respondents
Counsel for the Petitioner:
Sri Alok Saxena

Counsel for the Respondents:
A.S.G.I.,
Sri
Sudarshan
Singh,
Sri
Dhananjay Awasthi

A. Tax Law - Attachment of bank
accounts - The Central Goods & Services
Tax Act, 2017- Sections 74 & 83 - A more
stringent
requirement
than
a
mere
expediency, has been provided in S.83.
The exercise of unguided discretion cannot be
permissible because it will leave citizens and
their legitimate business activities to the peril
of arbitrary power. There must be a valid
formation
of
the
opinion
that
a
provisional attachment is necessary for
the purpose of protecting the interest of
the government revenue. This necessarily
requires existence of tangible material
before the Commissioner so as to enable
him to form his opinion for provisional
attachment
of
the
property
of
an
assessee/person including bank account,
which may indicates a live link to the
necessity
to
order
a
provisional
attachment to protect the interest of the
Government Revenue. (Para 7, 11)

When the exercise of the power is
challenged, the validity of its exercise
will depend on a strict and punctilious
observance
of
the
statutory
preconditions by the Commissioner. While
conditioning the exercise of the power on the
formation of an opinion by the Commissioner
that "for the purpose of protecting the
interest of the government revenue, it is
necessary so to do", it is evident that the
statute has not left the formation of
opinion
to
an
unguided
subjective
discretion of the Commissioner. The
formation of the opinion must bear a
proximate and live nexus to the purpose of
protecting the interest of the government
revenue. (Para 7)

An anticipatory attachment of this nature
must strictly conform to the requirements,
both substantive and procedural, embodied
in the statute and the rules. (Para 7)
9 All. Sri Alok Saxena Vs. U.O.I. & Anr.
165
Plane reading of Section 83 of the CGST Act
leaves no manner of doubt that

1) firstly, there is necessity of the
formation of opinion by the Commissioner;
2) secondly, the opinion must be formed
before ordering a provisional attachment;
3) thirdly, the opinion must indicate that it
is necessary so to do for the purpose of
protecting the interest of the government
revenue;
4) fourthly, the order must be in writing
for the attachment of any property of the
taxable person; and
5) fifthly, observance of the Rules by the
Commissioner in regard to the manner of
attachment. Each of these components of
S.83 are integral to a valid exercise of
power.
6) The expression "it is necessary so to do"
clearly evidences an intent of the legislature that
an attachment is authorized not merely because
it is expedient to do so but because it is
necessary to do so in order to protect interest of
the government revenue.
7) The word "necessary" postulates that the
interest of the revenue can be protected only by
a provisional attachment without which the
interest of the revenue would stand defeated.
(Para 11)

Each of the aforenoted ingredients of S.83 must
be strictly applied and complied before a
provisional attachment on the property of an
assessee can be made. (Para 7, 11)

Facts of the present case clearly reveal that no
proceedings u/s 74 of the C.G.S.T. Act has yet
been initiated. Respondent No. 2 while passing
the impugned order, has neither recorded
his opinion nor referred to any tangible
material which necessitated him to pass
the
impugned
provisional
attachment
order so as to protect the interest of the
Government revenue. The basic ingredients
required for passing the impugned order u/s 83
of the CGST Act as also authoritatively
pronounced by Hon'ble SC and binding upon the
respondents u/Art. 141 of the Constitution of
India, have been deliberately and completely
ignored by the respondent No. 2. Despite the
earlier order having been quashed by this Court,
the respondent No. 2 has chosen to pass the
impugned order on the very next day of
withdrawing the earlier order. The impugned
order has been passed in a most arbitrary and
illegal manner and in complete disregard of
provisions of S.83 of the C.G.S.T. Act r/w Rule
159 of the C.G.S.T. Rules 2017 and the law laid
down by Hon'ble SC in the case of Radha
Krishan Industries (infra). Consequently, the
impugned order cannot be sustained and
deserves to be quashed with exemplary cost.
(Para 14)

B. Imposition of Cost - Cost should be in
real and compensatory terms and not
merely symbolic. There can be exemplary
costs
as
well
when
the
appeal
is
completely devoid of any merit. Imposition
of cost on the State/PSU's alone is not going to
make much difference as the officers taking
such irresponsible decisions to file appeals are
not personally affected because of the reason
that
cost,
if
imposed,
comes
from
the
government's coffers. Time has, therefore,
come to take next step viz. recovery of
cost from such officers who take such
frivolous decisions of filing appeals, even
after knowing well that these are totally
vexatious and uncalled for appeals. We
clarify that such an order of recovery of cost
from the officer concerned be passed only in
those cases where appeal is found to be exfacie frivolous and the decision to file the appeal
is also found to be palpably irrational and
uncalled for. (Para 15)

Writ Petition allowed. (E-4)

Precedent followed:

1. Radha Krishan Industries Vs St. of H. P. &
ors., (2021) 6 SCC 771 (Para 6, 12)

2. Punjab State Power Corp. Ltd. Vs Atma Singh
Grewal, (2014) 13 SCC 666 (Para 15)

Present writ petition assails order dated
19.05.2022, passed by Commissioner of
Central Goods and Service Tax Act,
Ghaziabad.

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)
166 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri Alok Saxena, learned
counsel for the petitioner; Sri S.P. Singh,
learned Additional Solicitor General of
India assisted by Sri Sudarshan Singh,
learned counsel for the respondent no.1 and
Sri Dhananjay Awasthi, learned Senior
Standing Counsel for the respondent no.2.

2. This writ petition has been filed
praying for the following relief :

"1. Issue a writ of certiorari
quashing order dated 19.05.2022 passed by
the respondent no.02 i.e. the Commissioner
of Central Goods and Service Tax Act,
Ghaziabad
directing
provisional
attachment of the bank accounts of the
petitioner and of his firm, detailed in Para
5 of this Writ (Tax) Petition."

3. The petitioner is a proprietor of
M/s. S G Plastic Industries, B-19 Roop
Nagar Industrial Area, Loni, Ghaziabad,
engaged
in
manufacturing
of
plastic
granules and its compounding.

4. Earlier, Bank account of the
petitioner was attached under Section 83 of
The Central Goods & Services Tax Act,
2017 (hereinafter referred to as ''the CGST
Act, 2017') by order dated 22.10.2021,
passed by the respondent no.2, against
which the petitioner filed Writ Tax No. 448
of 2022 (Varun Gupta Versus Union of
India and another) and the writ petition was
allowed by order dated 11.05.2022 on the
ground that no proceeding under Section 74
of CGST was pending as on the date of
attachment. It was further observed that
amended provisions of Section 83 of the
CGST Act were not available when the
attachment order was passed.

5. Consequently, the respondent no.2
has passed the order dated 18.05.2022
intimating the Bank that the attachment has
been quashed but on the very next day, the
respondent no.2 has passed the impugned
order
dated
19.05.2022,
which
is
reproduced below:-

"To

The Branch Manager

AXIS Bank, D-46,

RDC, Raj Nagar, Ghaziabad

Provisional
attachment
of
property under section 83 of CGST Act,
2017

It is to inform that M/s S.G.
Industries (proprietor Sh. Varun Gupta)
having principal place of business at B-19,
Roop
Nagar
Industrial
Area,
Loni,
Ghaziabad bearing registration number as
09ANFPG
1119E1ZH
and
PAN
ANFPG1119E is a registered taxable person
under the Act.

Proceedings have been launched
against the aforesaid person under section 67
and Section 74 of the said Act to determine
the tax or any other amount due from the said
person. As per information available with the
department, it has come to my notice that the
said person has a bank account in your bank
having account no.916010071529025.

In order to protect the interests of
revenue and in exercise of the powers
conferred under section 83 of the Act, I Alok
Jha, Commissioner, CGST, Ghaziabad,
hereby provisionally attach the aforesaid
account.

No debit shall be allowed to be
made from the said account or any other
account operated by the aforesaid person on
the same PAN without the prior permission
of this department.

 (ALOK JHA)

 Commissioner "

6. As per impugned order proceedings
under Sections 67 and 74 has been
9 All. Sri Alok Saxena Vs. U.O.I. & Anr.
167
launched against the petitioner. However,
learned counsels for the respondents
have admitted before this Court on
14.07.2022 that "no proceedings under
Sections 74 of the CGST Act, 2017 has
yet been initiated". This fact has been
recorded by this Court in paragraph 3 of the
order dated 14.07.2022. After noticing the
facts of the case in the aforesaid order date
14.07.2022, this Court referred to various
paragraphs of the judgment of Hon'ble
Supreme Court in the case of Radha
Krishan Industries Vs. State of Himachal
Pradesh and others (2021) 6 SCC 771
and observed in paragraph 4 as under :

"Despite being being repeatedly
asked by us, learned ASGI and learned
counsel for respondent no. 2 could not
produce any opinion of the respondent no.
2 before this Court under Section 83 of
the CGST Act, 2017 indicating that the
Commissioner has recorded his opinion
on some materials that it is necessary to
attach the bank account of the petitioner
to protect the interest of revenue."

7. In the case of Radha Krishan
Industries (supra) Hon'ble Supreme Court
has dealt with almost similar order under
Section 83 of the C.G.S.T. Act and held as
under :

"49 Now in this backdrop, it
becomes necessary to emphasize that
before the Commissioner can levy a
provisional attachment, there must be a
formation of "the opinion" and that it is
necessary "so to do" for the purpose of
protecting the interest of the government
revenue. The power to levy a provisional
attachment is draconian in nature. By the
exercise of the power, a property belonging
to the taxable person may be attached,
including a bank account. The attachment
is
provisional
and
the
statute
has
contemplated an attachment during the
pendency of the proceedings under the
stipulated statutory provisions noticed
earlier.
An
attachment
which
is
contemplated in Section 83 is, in other
words, at a stage which is anterior to the
finalization of an assessment or the raising
of a demand. Conscious as the legislature
was of the draconian nature of the power
and the serious consequences which
emanate from the attachment of any
property including a bank account of the
taxable person, it conditioned the exercise
of the power by employing specific
statutory language which conditions the
exercise of the power. The language of the
statute indicates first, the necessity of the
formation of opinion by the Commissioner;
second, the formation of opinion before
ordering a provisional attachment; third
the existence of opinion that it is necessary
so to do for the purpose of protecting the
interest of the government revenue; fourth,
the issuance of an order in writing for the
attachment of any property of the taxable
person; and fifth, the observance by the
Commissioner of the provisions contained
in the rules in regard to the manner of
attachment. Each of these components of
the statute are integral to a valid exercise
of power. In other words, when the
exercise of the power is challenged, the
validity of its exercise will depend on a
strict and punctilious observance of the
statutory
pre-conditions
by
the
Commissioner. While conditioning the
exercise of the power on the formation of
an opinion by the Commissioner that "for
the purpose of protecting the interest of the
government revenue, it is necessary so to
do", it is evident that the statute has not
left the formation of opinion to an
unguided subjective discretion of the
Commissioner. The formation of the
168 INDIAN LAW REPORTS ALLAHABAD SERIES
opinion must bear a proximate and live
nexus to the purpose of protecting the
interest of the government revenue.

50 By utilizing the expression "it
is necessary so to do" the legislature has
evinced an intent that an attachment is
authorized not merely because it is
expedient to do so (or profitable or
practicable for the revenue to do so) but
because it is necessary to do so in order to
protect
interest
of
the
government
revenue. Necessity postulates that the
interest of the revenue can be protected
only by a provisional attachment without
which the interest of the revenue would
stand defeated. Necessity in other words
postulates a more stringent requirement
than a mere expediency. A provisional
attachment
under
Section
83
is
contemplated during the pendency of
certain proceedings, meaning thereby that
a final demand or liability is yet to be
crystallized. An anticipatory attachment of
this nature must strictly conform to the
requirements,
both
substantive
and
procedural, embodied in the statute and
the rules. The exercise of unguided
discretion cannot be permissible because it
will leave citizens and their legitimate
business activities to the peril of arbitrary
power. Each of these ingredients must be
strictly
applied
before
a
provisional
attachment on the property of an assesses
can be levied. The Commissioner must be
alive to the fact that such provisions are not
intended to authorize Commissioners to
make preemptive strikes on the property of
the assessee, merely because property is
available for being attached. There must be
a valid formation of the opinion that a
provisional attachment is necessary for the
purpose of protecting the interest of the
government revenue.

52 We adopt the test of the
existence of "tangible material". In this
context, reference may be made to the
decision of this Court in the Commissioner
of Income Tax v Kelvinator of India
Limited38. Mr Justice SH Kapadia (as the
learned Chief Justice then was) while
considering the expression "reason to
believe" in Section 147 of the Income Tax
Act 1961 that income chargeable to tax has
escaped assessment inter alia by the
omission or failure of the assessee to
disclose fully and truly all material facts
necessary for the assessment of that year,
held that the power to reopen an
assessment must be conditioned on the
existence of "tangible material" and that
"reasons must have a live link with the
formation of the belief". This principle was
followed subsequently in a two judge Bench
decision in Income Tax Officer, Ward No.
162
(2)
v
Techspan
India
Private
Limited39.
While
adverting
to
these
decisions we have noticed that Section 83
of the HPGST Act uses the expression
"opinion" as distinguished from "reasons
to believe". However for the reasons that
we have indicated earlier we are clearly of
the view that the formation of the opinion
must be based on tangible material which
indicates a live link to the necessity to
order a provisional attachment to protect
the interest of the government revenue.

70 Ex facie, the above order
passed by the Joint Commissioner does not
indicate any basis for the formation of the
opinion that the levy of a provisional
attachment was necessary to protect the
interest of the government revenue. The
order in the file noting refers to the fact
that the case of GM Powertech had been
decided under Section 74 resulting in an
additional demand of Rs. 39 crores on
account of a fraudulent claim of ITC for FY
2017-18 and 2018-19. GM Powertech is
alleged to have passed on the ITC to
various Registered Tax Persons40 situated
9 All. Sri Alok Saxena Vs. U.O.I. & Anr.
169
in Himachal Pradesh by issuing invoices
inter alia to the appellant during 2018-19
for which a case under Section 74 had been
initiated. The order records that the
appellant had claimed ITC of Rs 3.25
crores on the strength of the invoices issued
by GM Powertech. The order merely
records that the submissions which were
urged by the appellant on 5 August 2020
"are not sustainable". "In view of the facts
involved
in
the
case",
the
Joint
Commissioner
concluded
that
it
is
necessary at this stage to safeguard the
government
revenue
and
since
the
appellant had sold goods to Fujikawa the
payment due to it was being attached
provisionally. The order of the Joint
Commissioner contains absolutely no
basis for the formation of the opinion that
a provisional attachment was necessary to
safeguard the interest of the revenue. No
tangible material has been disclosed. The
record clearly reveals a breach of the
mandatory pre-conditions for the valid
exercise of powers under Section 83 of the
HPGST Act.

77 For the above reasons, we
allow the appeal and set aside the
impugned judgment and order of the High
Court dated 1 January 2021.

78 The writ petition filed by the
appellant
under Article
226
of
the
Constitution shall stand allowed by setting
aside the orders of provisional attachment
dated 28 October 2020."

8. Amended Section 83 of the CGST
Act reads as follows :

"83. Provisional attachment to
protect revenue in certain cases.

(1) Where, after the initiation of
any proceeding under Chapter XII, Chapter
XIV or Chapter XV, 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 or any
person specified in sub-section (1A) of
section 122, 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)."

9. In Section 83 of the CGST Act,
following expressions have been used :

(i) Commissioner is of the
opinion

(ii) that for the purpose of
protecting the interest of the Government
revenue

(iii) it is necessary so to do

(iv) by order in writing, attach
provisionally

(v) in such manner as may be
prescribed.

10. Chapter XII of the CGST Act
contains Sections 59 to 64 providing for
assessment. Chapter XIV contains Sections
67 to 72 providing for inspection, search,
seizure and arrest. Chapter XV contains
Sections 73 to 84 providing for demands
and recovery.

11. Plane reading of Section 83 of the
CGST Act leaves no manner of doubt that
firstly, there is necessity of the formation
of opinion by the Commissioner; secondly,
the opinion must be formed before ordering
a provisional attachment; thirdly, the
opinion must indicate that it is necessary so
to do for the purpose of protecting the
interest
of
the
government
revenue;
170 INDIAN LAW REPORTS ALLAHABAD SERIES
fourthly, the order must be in writing for
the attachment of any property of the
taxable person; and fifthly, observance of
the Rules by the Commissioner in regard to
the manner of attachment. Each of these
components of Section 83 are integral to a
valid exercise of power. The statute has not
left the formation of opinion to an unguided
subjective discretion of the Commissioner.
The formation of the opinion must bear a
proximate and live nexus to the purpose of
protecting the interest of the government
revenue. The expression "it is necessary so
to do" clearly evidences an intent of the
legislature that an attachment is authorized
not merely because it is expedient to do so
but because it is necessary to do so in order
to protect interest of the government
revenue. The word "necessary" postulates
that the interest of the revenue can be
protected only by a provisional attachment
without which the interest of the revenue
would stand defeated. Thus, a more
stringent
requirement
than
a
mere
expediency, has been provided in Section
83. The exercise of unguided discretion
cannot be permissible because it will leave
citizens and their legitimate business
activities to the peril of arbitrary power.
There must be a valid formation of the
opinion that a provisional attachment is
necessary for the purpose of protecting the
interest of the government revenue. This
necessarily requires existence of tangible
material before the Commissioner so as to
enable him to form his opinion for
provisional attachment of the property of
an assessee/person including bank account,
which may indicates a live link to the
necessity to order a provisional attachment
to protect the interest of the Government
Revenue.
Each
of
the
aforenoted
ingredients of Section 83 must be strictly
applied and complied before a provisional
attachment on the property of an assesses
can be made. In the impugned provisional
attachment order there is absence of the
aforesaid
ingredients
of
Section
83.
Therefore, the impugned order having been
passed
by
the
respondent
No.2
by
arbitrarily exercising his power, can not be
sustained. Therefore, it deserves to be
quashed.

12. In paragraph 11 of the aforesaid
judgment in the case of Radha Krishan
Industries
(supra),
Hon'ble
Supreme
Court reproduced the order under Section
83 of the Act dated 28.10.2020, as under :

"In order to protect the interests
of revenue and in exercise of the powers
conferred/delegated by Commissioner of
the State Taxes & Excise, HP vide office
order
No.12-4/78-EXN-Tax-Part278/22(a)- 26780-82 dated 21.10.2020
under section 83 of the Act, I, U.S. Rana,
Joint Commissioner of State Taxes &
Excise,
South
Enforcement
Zone,
Parwanoo, hereby provisionally attach the
payment to the extent of Rs.5,03,82,554/-
of M/s Radha Krishan Industries, KalaAmb. Henceforth, no payment shall be
allowed to be made from your company to
M/s RadhaKrishan Industries without the
prior permission of this department /
office."

13. The order impugned in the
present writ petition is almost similar to
the order which was impugned before
the Hon'ble Supreme Court in the case
of Radha Krishan Industries (supra)
which has been quashed by Hon'ble
Supreme
Court
with
observations
aforequoted.

14. Facts of the present case clearly
reveals that no proceedings under Section
74 of the C.G.S.T. Act has yet been
9 All. Sri Alok Saxena Vs. U.O.I. & Anr.
171
initiated. That apart the respondent No.2
while passing the impugned order, has
neither
recorded
his
opinion
nor
referred to any tangible material which
necessitated him to pass the impugned
provisional attachment order so as to
protect the interest of the Government
revenue. The basic ingredients required
for passing the impugned order under
Section 83 of the CGST Act as also
authoritatively pronounced by Hon'ble
Supreme Court and binding upon the
respondents under Article 141 of the
Constitution
of
India,
have
been
deliberately and completely ignored by
the respondent No.2. Despite the earlier
order having been quashed by this Court,
the respondent no.2 has chosen to pass the
impugned order on the very next day of
withdrawing
the
earlier
order.
The
impugned order has been passed in a most
arbitrary and illegal manner and in
complete disregard of provisions of
Section 83 of the C.G.S.T. Act read with
Rule 159 of the C.G.S.T. Rules 2017 and
the law laid down by Hon'ble Supreme
Court in the case of Radha Krishan
Industries (supra). Consequently, the
impugned order can not be sustained and
deserves to be quashed with exemplary
cost.

Imposition of Cost:-

15. In the case of Punjab State
Power Corporation Ltd. vs. Atma
Singh Grewal, (2014) 13 SCC 666 (para
14), Hon'ble Supreme Court stressed that
cost
should
be
in
real
and
compensatory terms and not mrely
symbolic. It further expressed the need
to recover the cost from erring officers.
Paragraph-14 of the Punjab State Power
Corporation Ltd. (supra) is reproducecd
below:

"14. No doubt, when a case is
decided in favour of a party, the Court
can award cost as well in his favour. It is
stressed by this Court that such cost
should be in real and compensatory
terms and not merely symbolic. There
can be exemplary costs as well when the
appeal is completely devoid of any merit.
[See Rameshwari Devi v. Nirmala Devi
(2011) 8 SCC 249]. However, the moot
question is as to whether imposition of
costs alone will prove deterrent? We do
not think so. We are of the firm opinion
that
imposition
of
cost
on
the
State/PSU's alone is not going to make
much difference as the officers taking
such irresponsible decisions to file
appeals are not personally affected
because of the reason that cost, if
imposed, comes from the government's
coffers. Time has, therefore, come to
take next step viz. recovery of cost from
such officers who take such frivolous
decisions of filing appeals, even after
knowing well that these are totally
vexatious and uncalled for appeals. We
clarify that such an order of recovery of
cost from the officer concerned be
passed only in those cases where appeal
is found to be ex-facie frivolous and the
decision to file the appeal is also found
to be palpably irrational and uncalled
for."

 (Emphasis supplied by us)

16. For all the reasons aforestated, the
impugned order dated 19.05.2022 under
Section 83 of the C.G.S.T. Act 2017 passed
by the respondent no.2, can not be
sustained and is hereby quashed. Writ
petition is allowed with cost of Rs.
50,000/- which shall be paid by the
respondents to the petitioner within two
weeks.
----------
172 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 9 ILRA 172
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Writ Tax No. 1047 of 2021

Shivaaditya Jems & Jewellery Pvt. Ltd.
 ...Petitioner
Versus
Income Tax & Ors. ...Respondents

Counsel for the Petitioner:
Sri Suyash Agarwal, Sri Divyanshu Agrawal

Counsel for the Respondents:
A.S.G.I., Sri Gaurav Mahajan, Sri Manu
Ghildyal, Sri Sudarshan Singh

A. Tax Law - Reassessment - Jurisdiction
- Income Tax Act, 1961 - Sections 143(3),
148, 132A,
120(1), 120(2), 148A(d),
2(7A), 124(1) & 124(5) - Concurrent
jurisdictions are not an anathema but an
accepted position under the Act. The term
"jurisdiction" in Section 120 of the Act has
been used loosely and not in strict sense
to confer jurisdiction exclusively to a
specified and single assessing officer, to
the exclusion of others with concurrent
jurisdiction. The Act does not authoritatively
confer exclusive jurisdiction to specific Income
Tax Authority. It is left to the Board to issue
directions for exercise of power and functions
taking
into
consideration
territorial
area,
class/types of persons, income and case, and
Board have been given wide power and latitude.
Section 120 by necessary implication postulates
and acknowledges that multiple or more than
one Assessing officer could exercise jurisdiction
over particular assessee. (Para 21)

It has been admitted that respondent No. 1 i.e
the ITO-2(1), Moradabad has the territorial
jurisdiction over the petitioner, but only
objection to the jurisdiction has been
raised merely on the ground that on
account of pecuniary limit, the proceedings
ought to have been initiated by ACIT-2,
Moradabad. (Para 18)

Merely because some pecuniary limit has
been fixed for purpose of distribution of
work between officers, it would not mean
that there shall be inherent lack of
jurisdiction of respondent No. 1. Once the
territorial jurisdiction of respondent No. 1 is
admitted by the petitioner, there existed no
occasion for the Assessing Officer to refer the
matter for determination u/s 124(2) before the
assessment was made. Therefore, it cannot be
said that respondent No. 1 lacked inherent
jurisdiction while issuing the impugned notice
u/s 148 of the Act, 1961. (Para 19, 20)

Writ petition dismissed. (E-4)

Precedent followed:

1. Abhishek Jain Vs Income Tax Officer, Ward-55
(1), New Delhi; 2018 (94) Taxmann.Com 355
(Delhi) (Para 21)

Present
petition
assails
notice
dated
31.03.2021, issued u/s 148 and order
dated 13.09.2021, passed by Income Tax
Officer ITO-2(1), Moradabad.

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Jayant Benerji, J.)

1. Heard Sri Suyash Agarwal, learned
counsel for the petitioner, Sri Gaurav
Mahajan, learned Senior Standing Counsel
for the respondent no.2 and Sri Sudarshan
Singh, learned counsel for respondent no.3.

2. This writ petition has been filed
praying for the following relief:-

"(i) Issue writ, order or direction
in the nature of certiorari quashing the