Kesari Nandan Mobile vs Enforcement Division 2025 INSC 983 - S.83 CGST Act - Second Provisional Attachment Orders

Central Goods and Services Tax Act - Section 83 - CGST Act or any other law in force does not permit issuance of a second provisional attachment order under sub-section (1) of Section 83 of the CGST Act after the initial provisional attachment order issued thereunder ceases, by reason of efflux of a year from the date of its issuance, in terms of sub-section (2) thereof (Para 14,41) Repeated or continuous issuance of a provisional attachment order under the garb of ‘renewal’ could lead to a serious anomaly (Para 31) Provisional attachment is a pre-emptive measure to protect the interests of government revenue. It cannot function as a recovery measure; for that, the statue has other provisions. Certainly, a period of one year, as ordained by the legislature, is enough for the revenue authorities to conclude its investigation; if not, the legislature could have provided for a renewal or an extended period as in the Excise Act and the Customs Act. Sub-section (2) of Section 83 does not provide for any exception to the rule. (Para 32)

Legal maxim - Ut res magis valeat quam pereat- A legal text, specially a statute, should be interpreted in a way that gives the document force rather than makes it fail. (Para 30)

Legislation - Executive Powers - The inherent executive power cannot be exercised, in respect of any matter covered by statutory law/rules, in a manner inconsistent therewith- The inherent executive power could be exercised to supplement the statutory law, but not supplant it. (Para 26) For an authority to exercise a power, it must either be empowered by the statute or authorized by executive instructions; if the power is not conferred by statute, executive instructions or any other instrument which is law within the meaning of Article 13, it cannot be justified by arguing that the exercised power is neither prohibited by the statute nor by executive instructions (Para 28)- When the statue does provide for an extension, the authority thereunder is free to do so, subject to such restrictions as may be imposed. Conversely, when a statute does not provide for an extension, renewal, re-issuance, revival — whatever be the nomenclature — the executive cannot overreach the statute to do so.(Para 39)

Central Goods and Services Tax Act - Section 83 (1) - Quoted from Radha Krishan Industries v. State of Himachal Pradesh: The power to levy a provisional attachment is draconian in nature. By the exercise of the power, a property belonging to the taxable person may be attached, including a bank account. The attachment is provisional and the statute has contemplated an attachment during the pendency of the proceedings under the stipulated statutory provisions noticed earlier. An attachment which is contemplated in Section 83 is, in other words, at a stage which is anterior to the finalisation of an assessment or the raising of a demand. Conscious as the legislature was of the draconian nature of the power and the serious consequences which emanate from the attachment of any property including a bank account of the taxable person, it conditioned the exercise of the power by employing specific statutory language which conditions the exercise of the power. (Para 17-18)