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2022 (12) TMI 650 - HC - Income TaxAttachment of the HSBC Bank and DBS Bank accounts of the petitioner u/s 132(9B) - bank account of DBS Bank was released and the balance fund as on 18.11.2021 remained under attachment u/s 281(B) until further order - whether in absence of any material and any reasons recorded in writing that such a harsh step of attachment of the property of the petitioner had been taken and that shall need to be straightway answered in negation? - HELD THAT:- As held that permitting the department to provisionally attaching the petitioner’s refund for the current year on the ground that in the final assessment, the demands are likely to be confirmed, would amount to ignoring the hard fact that for the earlier assessment years, Tribunal has suspended the recoveries arising out of the demands made by the assessing officer on similar issues. As held that looking it from any angle, the occasion for the competent authority to exercise the drastic power u/s 281(B) has not arisen, therefore, there was no justification to exercise such powers. Going by the decision of Vodafone Idea Limited [2019 (9) TMI 447 - BOMBAY HIGH COURT]. we can surely say that the assessing officer, for the purpose of protecting interest of the Revenue, in the instant case, with the prior approval of the higher authority has passed an order in writing recording the reasons and provisionally attaching the property belonging to the assessee. These are though drastic powers in a given circumstances, we are satisfied that for the petitioner assessee to continue its business, the continuation of provisional attachment is not necessary and even otherwise, the interest of the Revenue can be safeguarded by directing a particular amount to be furnished by way of a bank guarantee to the authority concerned, that would sub-serve the purpose. We are conscious of the fact that the order has came to be passed in relation to the two of the companies which is said to be the shell companies adding the commission and the main company of Taiwan is said to be benefiting. It is also alleged that the modus is adopted to shift the profit to the Chinese Company. We also have taken note of some of the details which have been culled out from the file which, for the purpose of secrecy pleaded by the respondent, we choose not to reveal the same as that may prove to be deleterious for the on-going assessment proceedings. However, if the past case of the respondent is taken into consideration along with its on-going proceedings, in our opinion, the fixed deposit which has been made by the respondent of the DBS Bank would suffice to protect the interest of the Revenue for now. We also would like to make a mention of the fact that except one Director, the rest are from Taiwan and therefore, the Indian Director along with the Taiwan Directors are also required to give the undertaking that in the eventuality if the assessment is more than the amount which is permitted to be provisionally attached, they shall fulfill the obligations even from their own personal funds. The said undertaking shall be filed before this Court within a period of one week from the date of receipt of copy of this judgment. They shall also furnish the disclosure of the immovable assets of the company. At this stage, Standing Counsel upon instruction has informed that the matter has been already referred to the Transfer Pricing Officer and therefore, the Court shall need to regard the interest of the Revenue Authority. On furnishing the above aspect, once having verified the details in a week’s time thereafter, the attachment of the HSBC bank account bearing account no. 101040608001 shall be then released. The original file is returned to the respondent.
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