Messrs Kisan Mouldings Ltd Vs Union Of India

FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT

1. Heard learned advocate Mr. Paresh M. Dave for the petitioner, learned advocate Mr. Deepak Khanchandani for respondent No.1 and learned Assistant Government Pleader Mr. Raj Tanna for respondent Nos.2 and 3.

2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs.

“(A) That Your Lordships may be pleased to issue a Writ of Mandamus or a Writ of Certiorari any other appropriate writ, order or direction quashing and setting aside the summary of the order dated 13.8.2019 (Annexure-“A”) issued and uploaded by the 3rd Respondent herein, and be further pleased to quash and set aside attachment of Petitioner’s bank accounts with HDFC Bank as well as ICICI Bank, thereby directing the Bank Managers to allow the Petitioners to operate the bank account in the normal course of business;

(B) That Your Lordships may be pleased to issue a Writ of Prohibition or any other appropriate writ, direction or order completely and permanently prohibiting the Respondents, their servants and agents from taking any action against the Petitioners pursuant to summary of the order dated 13.8.2019 (Annexure- “A”).”

3. Learned advocate Mr. Paresh Dave for the petitioner submitted that respondent No.3 has passed a summary of the order dated 13^th August, 2019, however no detailed order is made available to the petitioner. It was pointed out that on the basis of such summary of order in Form GST DRC-07 dated 13^th August, 2019, the respondents have initiated the recovery proceedings.

 3.1 It was also pointed out that by order dated 10^th August, 2023 the respondent No.3 has passed order for dropping of proceedings under Sections 73 and 74 of the GST Act for F.Y. 2018­19 for which summary of order dated 13^th August, 2019 was uploaded without there being any further order.

3.2 It was, therefore, submitted that summary of the order dated 13^th August, 2019 would not survive and is liable to be quashed and set aside.

4. On the other hand, learned Assistant Government Pleader Mr. Raj Tanna could not controvert the above submissions made by learned advocate for the petitioner and a statement at Bar is made by learned Assistant Government Pleader that summary of the order dated 13^th August, 2019 is without accompanying any order under Section 73 of 74 of the GST Act. It was also further submitted that, under instructions, that thorough verification of the records is made and no detailed order is found on record for which summary of order dated 13^th August, 2019 is uploaded by respondent No.3.

5. In view of the above submissions, the petition succeeds and accordingly allowed. The impugned summary of order dated 13^th August, 2019 is based upon ‘NO ORDER’ passed under Section 73 of 74 of the GST Act and therefore, such summary of the order is void and ab initio and is accordingly hereby to be quashed and set aside.

6. In view of the quashing of summary of order dated 13^th August, 2019, the respondents are directed to pass appropriate order for lifting attachment of the following bank accounts of the petitioner and the petitioner be permitted to operate the Bank Accounts forthwith.