Provisional Attachment of Property under GST – Section 83 of the GST Act, 2017

Any litigation under various tax laws, including GST, might take a considerable amount of time. The pendency of any proceedings could potentially delay the earning of revenue by the government. Further, the taxpayer may transfer his property to another person before the end of the proceedings. In order to protect the interests of the revenue during the pendency of any proceedings, the government has the power to provisionally attach the properties of the taxpayer.  

What is the meaning of attachment of property?

If the government attaches the property of a person, the person cannot transfer the said property to anyone else. Even if he does manage to transfer the attached property, the transfer shall be deemed void and thus not recognised by law. Even bank accounts can be attached – he will not be allowed to transfer his funds to any other account.  

Interpretation of Section 83 of the CGST Act

During the pendency of certain specified proceedings under the CGST Act 2017, the Commissioner can pass an order for attachment of property including bank accounts of the taxpayer to protect the interests of the revenue. Such order may remain in effect up to one year if no action is taken. A copy of this order may be sent to the concerned Revenue Authority, Transport Authority or any such authority to place an encumbrance on the said property. This encumbrance cannot be removed unless instructions have been received from the Commissioner to do so.  

Circumstances under which Section 83 can be invoked

Section 83 can be invoked during the pendency of the following proceedings:

1. Section 62: Assessment of non-filers of returns
2. Section 63: Assessment of unregistered persons
3. Section 64: Summary assessment in certain special cases
4. Section 67: Proceedings related to inspection, search and seizure
5. Section 73: Demand raised in cases other than those involving fraud or willful misrepresentation of facts
6. Section 74: Demand raised in cases involving fraud or willful misrepresentation of facts

In any other case, there is no provision to attach the property of such taxpayer. Accordingly, for proceedings closed, Section 79 of the CGST Act (recovery of taxes) gets attracted for attachment of property by the GST officer. It applies for all those cases where the proceedings are complete and the taxpayer is declared as a defaulter. Hence, Section 83 (provisional attachment of the property) applies only in limited cases when certain proceedings are pending before the tax authorities as listed above.  

Action to be taken by the taxpayer and the Timelimit

If the Commissioner wants to provisionally attach any property (including bank account), he will pass an order in DRC-22 which will contain the details of the property attached. The commissioner can issue DRC-22 anytime after issuance of demand notice under Sections 63, 73 or 74. Similarly, such notice for attachment shall be made only after the issuance of assessment orders under Sections 62 or 64. Upon receipt of this order, the taxpayer can file an objection against it stating that such property was not liable to attachment. This objection must be filed within seven days of attachment of the property. The Commissioner is then bound to give the taxpayer an opportunity of being heard. In case he is satisfied with the response given by the taxpayer, he will release the attached property by passing an order in DRC-23. In case the property attached is of a perishable or hazardous nature, the taxpayer will have to either settle the relevant tax dues or pay the market price for the property, whichever is lower. Upon settlement, the Commissioner will release such property by passing an order in DRC-23. If the taxpayer does not agree to either pay the market price of the property or settle the relevant tax dues, the Commissioner may dispose of the property and apply the proceeds against the dues of the taxpayer.  

Steps to reply to Notice in DRC-22 on the GST portal

As a prerequisite, keep the reply to the notice typed out and saved in a PDF formatted file. No specific format is specified. However, it needs to be ensured that the file size does not exceed 5 MB. The process of replying to notice in form DRC-22 is similar to notice in DRC-16 (Notice for attachment and sale of immovable/movable goods/shares under section 79). Follow the below step-by-step guide to file a reply to the notice in form DRC-22 on the GST portal: Step 1:Log in to the GST portal with the relevant credentials.   Step 2: Select the relevant DRC-22 notice by navigating to the ‘View Additional Notices/Orders’ tab.   Go to ‘Services’ > ‘User Services’ > ‘View Additional Notices/Orders’ to find the notice issued against you by the tax official.   A dashboard of the notices issued will be available. Find the relevant notice to which reply is to be made and select ‘View’ under the ‘Action’ column.   Step 3: Select the ‘REPLIES’ tab on the case details page to enter and submit the details. 1. Click on ‘ADD REPLY’.   2. Choose the mode of recovery, notice type, notice reference number by clicking on the drop-down button. These details can be obtained from the ‘NOTICES’ tab appearing on the left-hand side of the case details page.   3. Upload the reply earlier saved in PDF format by clicking on ‘Choose File’. Make sure to enter a description of the document under ‘Upload Reply’. There is an option to add any supporting documents under ‘Upload Supporting Documents’. It requires a description and allows up to four files to be attached.   4. Select the verification checkbox and enter the name of the authorised signatory/applicant along with the place where the form is filled. Click on ‘Submit’.   A confirmation message will be displayed. Click on ‘Proceed’. Step 4: File the reply using either DSC or EVC. This form can be signed using either DSC or EVC depending on the type of taxpayer. Select ‘SUBMIT WITH DSC’ or ‘SUBMIT WITH EVC’ whichever is appropriate.   The message confirming successful filing is displayed upon completion. Accordingly, an acknowledgement and RFN is sent to the registered email ID and phone number.  

Formats of Notice in DRC-22 and Order in DRC-23

Notice in DRC-22: Provisional attachment of property under section 83:     Order in DRC-23: Restoration of provisionally attached property/bank account under section 83: