Recently HC of gave an important judgment dated 28th August, 2019 regarding availment of input tax credit without physical receipt of goods in case of Pranit Hem Desai V. Additional Director General,  110 taxmann.com 472 (GUJARAT) which is discussed as below:
Facts of the Case
The Competent Authority had provisionally attached the bank accounts of the taxpayer under section 83 on the allegation that it without physical receipt of goods availed credit on basis of the invoices issued by the input supplier and thereafter paid GST on the basis of the output invoices without physical supply of the goods to the buyers.The competent authority passed order as the allegation levied against that the goods were not supplied, yet the tax was paid for the purpose of passing the credit. Thus, no GST was payable, yet the same was paid.Taxpayer filed a writ against this order. Petitioner stated that Section 9, which is the charging section, which contemplates that the GST is payable only when the goods are supplied. The output liability paid is Rs. 4.13 cr. excess than the amount of credit availed of.
High court observed that Section 83 empowers the Tax Authority to make a provisional attachment of any properties of the taxpayer to protect the interest of the revenue. It should neither be used as a tool to harass the taxpayer nor should it be used in a manner which may have an irreversible detrimental effect on the business of the taxpayer.Orders of provisional attachment must be in writing and there must be some material on record to indicate that the Competent Authority had formed an opinion on the basis thereof that it was necessary to attach the property in order to protect the interest of the revenue.
The provisional attachment provided under section 83 is more like an attachment before judgment under the Code of Civil Procedure. This power should be exercised by the Authority only if there is a reasonable apprehension that the assessee may default the ultimate collection of the demand that is likely to be raised on completion of the assessment.
Moreover attachment should be made of the properties and to the extent it is required to achieve the above object. It should neither be used as a tool to harass the assessee nor should it be used in a manner which may have an irreversible determinantal effect on the business of the assessee.High court held that an amount of Rs. 4.13 crores has been paid in excess than the amount of credit availed.
Therefore, it cannot be said that the interest of the Government revenue is at a stake.Therefore, the order of provisional attachment of the bank accounts of the taxpayer required to be quashed and set aside.
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e-DiNero. Group GST Team