Petitioner | Roshni Sana Jaiswal |
Respondent | Commissioner Of Central Taxes , Gst Delhi (East) |
Decision by | Delhi High Court |
Date of order or Judgement | 12- May-2021 |
Citation no. | 2021 (5) GSTPanacea 5 HC Delhi W.P.(C) 2348/2021 & CM No. 6860/2021
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Hon’ble Judge | Justice Rajiv Shakdher |
Decision | In Favour of Assessee |
Directors are not Taxable Persons-Can the bank account/accounts of a director of the company can be provisionally attached where proceeding u/s 67 of the act was initiated against the company and not against the director ?
Directors are not Taxable Persons-Facts of the Case
Petitioner filed a writ petition against the order passed on 07.12.2020 by the respondent, whereby several bank accounts of the petitioner have been provisionally attached.
The petitioner was acting as a director of Milkfood Ltd., between 2006 and 2008. The petitioner is also a shareholder in the said company, and owns approximately 14.33 % equity shares. The petitioner drew a salary of Rs.1.50 crores per annum in financial year 2019-2020.
Firstly the respondent claims that, the statement of the persons, who controlled entities, which enabled Milkfood Ltd. to claim ITC, were recorded in the course of the investigation.
As a result the respondent claims, that “the voluntary statement” of the petitioner was recorded on 03.12.2020.
Therefore, proceeding u/s 67 of the act was initiated against M/s MilkFood Ltd on the ground of availing ITC against bogus/fake invoices.
Argument Before Court
Directors are not Taxable Persons-Petitioner’s Contention
Directors are not Taxable Persons-The petitioner, to clarify submitted that the proceeding initiated under Section 83 of the Act is without jurisdiction, as the petitioner does not fall within the ambit of the definition of a ‘taxable person’; the taxable person being Milkfood Ltd and not the petitioner.
Therefore, the impugned orders cannot be sustained, as this crucial jurisdictional ingredient is missing.
Consequently the respondent, before triggering the provisions of Section 83 of the Act, had to satisfy itself that there was a “pending” proceeding under the provisions of Section 62 or Section 63 or Section 64 or Section 67 or Section 73 or Section 74 of the Act.
On the other hand petitioner contended that the department was also required to form an opinion, before taking recourse to Section 83 of the Act, that attachment of the petitioner’s bank account was necessary for the purpose of protecting the interest of the revenue.
Directors are not Taxable Persons-Respondent’s Argument
Directors are not Taxable Persons-On the other hand, it was submitted on the behalf of the respondents that The petitioner has availed of the alternate remedy available to it under Rule 159(5) of the Central Goods and Services Tax Rules, 2017, by filing objections under the said Rule, albeit during the pendency of the writ petition.
Meanwhile respondent says that since objections, were filed during the pendency of the writ petition and after the counter–affidavit was filed on behalf respondent, there is no reference to this aspect of the matter, in the counter-affidavit.
Respondent states that the objections were disposed of vide order dated 19.04.2021.
Investigations, commenced under Section 67 of the Act, against the Milkfood Ltd., were still on.
Milkfood Limited has wrongly availed ITC credit to the extent of Rs.85 crores, based on fake invoices. The respondent had arrested persons, who controlled the entities which furnished fake invoices to Milkfood Ltd.
On the other hand coercive proceedings were also intended to be triggered against the directors/employees of Milkfood Ltd. The persons, connected to the suppliers and the directors/employees of Milkfood Ltd., had approached the concerned courts for grant of bail.
Delhi High Court Held
Directors are not Taxable Persons-The fact that an alternate remedy is available to a litigant is a self-imposed limitation on the Court something which did not deter the court, when notice was issued in the matter.
The Court can, and should exercise its powers, under Article 226 of the Constitution, amongst others, in cases where the impugned action or order concerned is without jurisdiction.
In this case, one of the jurisdictional ingredients‟, which is missing, is that the petitioner is not a taxable person.
Firstly for the foregoing reasons, we are inclined to allow the writ petition.
Secondly the impugned provisional attachment orders dated 07.12.2020. are quashed. The respondent will communicate the order passed today to the concerned Banks.
Consequently, the order dated 19.04.2021, disposing of the objections filed by the petitioner, would also collapse, in its entirety, as the proceedings carried out against the petitioner were without jurisdiction.
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ROSHNI-SANA-JAISWAL
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