M/S. RADHA KRISHAN INDUSTRIES Vs. STATE OF H.P.
HIGH COURT OF HIMACHAL PRADESH
M/S. Radha Krishan Industries
STATE OF H.P.
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TARLOK SINGH CHAUHAN,J. -
(1.) The instant petition has been filed for the grant of following substantive reliefs:
a) Issue a writ petition under Article 226 of the Constitution of India in the nature of Certiorari quashing impugned order dated 21.10.2020 (Annexure P-1) passed by the Commissioner, respondent No.2 delegating his powers absolutely, being inter alia, illegal, arbitrary, misconceived, erroneous and even violative of principles of natural justice, equity and fair play.
b) Issue a civil writ petition under Article 226 of the Constitution of India in the nature of certiorari quashing the proceedings initiated by the respondent No.3 under section 83 by provisionally attaching the amount receivable by the petitioner from its customer while issuing Form DRC-22 to M/s Deepak International Limited vide Memo No. EXN-JCSTE/SEZ- Parwanoo/2020-21/1171 dated 28.10.2020 (Annexure P-2) and to M/s Fujikawa Power vide Memo No. EXN-JCSTE/SEZ- Parwanoo/20209-21/1167 dated 28.10.2020 (Annexure P-3) being inter alia, illegal, arbitrary, misconceived, erroneous and even violative of principles of natural justice equity and fair play.
c) Issue a writ in the nature of mandamus, directing the respondent No.3 to revoke the provisional attachment and not to resort to further coercive measures against the petitioner.
(2.) A detection case under section 74 of the Himachal Pradesh Goods and Services Tax Act, 2017 (hereinafter referred to as the 'GST Act' for short) and the Central Goods and Services Tax Act, 2017 read with section 20 of the Integrated Goods and Services Tax Act, 2017 was conducted against one of the suppliers of M/s Radha Krishan Industries, Kala-Amb, i.e. M/s GM Powertech, Kala-Amb on 10.10.2018 by way of search and seizure as provided under section 67 of the HPGST/CGST Acts. A show cause notice dated 9.1.2019 (Annexure P-8) was issued to M/s Fujikawa Power, Bagbania, BBN Baddi regarding provisional attachment of payment of the petitioner under section 83 of the Act. In response to the show cause notice, the petitioner filed representation dated 29.1.2019 (copy enclosed as Annexure R-1) and respondent No.3 vide letter dated 30.1.2019 (Annexure P-9) withdrew the aforesaid notice. However, after initial inquiry into the matter, evidences of tax evasion were detected and M/s GM Powertech, Kala-Amb claimed and utilized input tax credit on account of the invoices issued by the fake/fictitious firms without actual movement of goods from the fake firms Similarly, M/s GM Powertech also issued invoices on the same analogy to various recipients situated in the state of Himachal Pradesh including the petitioner. Consequently, respondents issued provisional attachment of the payment receivable by the petitioner; vide Annexures P-2 and P-3.
(3.) Mr. Ajay Vaidya, learned Sr. Addl. Advocate General has questioned the very maintainability of this petition on the ground of availability of alternative remedy.;
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