Landmark today’s supreme Court order in case of
Radha Krishan Industries by bench of his lordship hon’ble justice d.y.chandrachud held after in depth analysis of gst law and various principles of income tax law etc on provisional attachment provision u/s Section 83 of the Himachal Pradesh Goods and Service
Tax Act, 2017 that

E Summary of findings
72 For the above reasons, we hold and conclude that
(i) The Joint Commissioner while ordering a provisional attachment under
section 83 was acting as a delegate of the Commissioner in pursuance of
the delegation effected under Section 5(3) and an appeal against the order
of provisional attachment was not available under Section 107 (1);
(ii) The writ petition before the High Court under Article 226 of the Constitution
challenging the order of provisional attachment was maintainable;
(iii) The High Court has erred in dismissing the writ petition on the ground that
it was not maintainable;

(iv) The power to order a provisional attachment of the property of the taxable
person including a bank account is draconian in nature and the conditions
which are prescribed by the statute for a valid exercise of the power must
be strictly fulfilled;

(v) The exercise of the power for ordering a provisional attachment must be
preceded by the formation of an opinion by the Commissioner that it is
necessary so to do for the purpose of protecting the interest of the
government revenue. Before ordering a provisional attachment the
Commissioner must form an opinion on the basis of tangible material that
the assessee is likely to defeat the demand, if any, and that therefore, it is
necessary so to do for the purpose of protecting the interest of the
government revenue.

(vi) The expression “necessary so to do for protecting the government
revenue” implicates that the interests of the government revenue cannot be
protected without ordering a provisional attachment;
(vii) The formation of an opinion by the Commissioner under Section 83(1)
must be based on tangible material bearing on the necessity of ordering a
provisional attachment for the purpose of protecting the interest of the
government revenue;

(viii) In the facts of the present case, there was a clear non-application of mind
by the Joint Commissioner to the provisions of Section 83, rendering the
provisional attachment illegal;

(ix) Under the provisions of Rule 159(5), the person whose property is
attached is entitled to dual procedural safeguards:
(a) An entitlement to submit objections on the ground that the property
was or is not liable to attachment; and
(b) An opportunity of being heard;
There has been a breach of the mandatory requirement of Rule 159(5) and
the Commissioner was clearly misconceived in law in coming into
conclusion that he had a discretion on whether or not to grant an
opportunity of being heard;

(x) The Commissioner is duty bound to deal with the objections to the
attachment by passing a reasoned order which must be communicated to
the taxable person whose property is attached;
(xi) A final order having been passed under Section 74(9), the proceedings
under Section 74 are no longer pending as a result of which the provisional
attachment must come to an end; and

(xii) The appellant having filed an appeal against the order under section 74(9),
the provisions of sub-Sections 6 and 7 of Section 107 will come into
operation in regard to the payment of the tax and stay on the recovery of
the balance as stipulated in those provisions, pending the disposal of the
appeal.

73 For the above reasons, we allow the appeal and set aside the impugned
judgment and order of the High Court dated 1 January 2021.
74 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