2005 (12) TMI 52 - HC - Income Tax

In the present petition challenge is to the legality validity and propriety of the order passed under section 281B by means of which the petitioner s current account No. 28430 with the Union Bank of India were attached under the impugned order passed by the Income-tax Officer- writ petition is allowed

Summary

Issues Involved:
1. Legality, validity, and propriety of the order passed under section 281B of the Income-tax Act, 1961.
2. Whether the exercise of power under section 281B was warranted, legal, and non-arbitrary.
3. Whether the Department had sufficient material to form an opinion that a substantial demand was likely to arise against the petitioner.
4. Compliance with procedural requirements, including the extension of the provisional attachment.

Issue-wise Detailed Analysis:

1. Legality, Validity, and Propriety of the Order under Section 281B:
The petition challenged the order dated December 22, 2004, under section 281B of the Income-tax Act, 1961, which provisionally attached the petitioner's bank account and fixed deposits. The court noted that section 281B allows provisional attachment of property during assessment proceedings to protect the interests of the Revenue, provided the Assessing Officer forms an opinion and obtains prior approval from higher authorities.

2. Exercise of Power under Section 281B:
The petitioners contended that the exercise of power under section 281B was arbitrary and unwarranted. The court emphasized that the power under section 281B should be exercised sparingly and with caution. The "opinion" of the Assessing Officer must be based on more than mere "gossip" or "hearsay."

3. Sufficiency of Material to Form an Opinion:
The court found that the counter affidavit filed by the Department did not disclose any material justifying the provisional attachment. The court observed that the seized documents did not relate to the petitioners, and there was no indication that the petitioners would not fulfill their tax obligations. The court cited precedents emphasizing that the power of provisional attachment should be exercised only if there is a reasonable apprehension that the assessee may default on the ultimate tax demand.

4. Procedural Requirements and Extension of Provisional Attachment:
The court noted that the provisional attachment order was extended without providing the petitioners with a copy of the extension order or the reasons for the extension. The court held that the Department should have disclosed the reasons recorded by the Commissioner of Income-tax for granting the extension. The absence of such disclosure led the court to draw an adverse inference against the Department.

Conclusion:
The court concluded that the impugned order under section 281B and its subsequent extension were unwarranted and arbitrary. The court quashed the order and directed the Department to indicate a reasonable sum likely to be due within a fortnight. The petitioners were to furnish security for the indicated amount within a month. The court also awarded costs of Rs. 5,000 to the petitioners.

Summary:
The High Court of Allahabad quashed the provisional attachment order under section 281B of the Income-tax Act, 1961, due to lack of material justifying the attachment and procedural lapses in extending the attachment period. The court emphasized the need for caution and sufficient material before exercising such powers and directed the Department to indicate a reasonable sum likely to be due, for which the petitioners were to furnish security. The petitioners were awarded costs of Rs. 5,000.