TMI Blog2012 (4) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer only if there is reasonable apprehension that the assessee may thwart the ultimate collection of the demand, i.e., likely to be raised on completion of the assessment. The power of attachment under this section is in the nature of attachment before judgment under the C.P.C. It is a drastic power. It should therefore, be exercised with extreme care and caution. The attachment of the property should be made to the extent it is required to achieve the object. Obviously it must have some co-relation, which cannot be exact amount of future liability, but this does not mean that power under section 281B is absolutely arbitrary power and therefore,it is not necessary to form opinion about liability to maximum of possible liability and also this power cannot be such arbitrary that the Assessing Officer need not to indicate or know that properties of asessese which is being attached is of what value? The order does not disclose any reason for attachment - attaching the property of the writ petitioner lying with the J.S.E.B cannot be sustained and liable to be set aside. - WPT No.27 of 2012 - - - Dated:- 25-1-2012 - Prakash Tatia, Aparesh Kumar Singh, JJ. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant since long. However, learned counsel for the Revenue submitted that now the new officer has been appointed as C.I.T.(Appeals) but he has not taken charge as yet. Be it as it may be, fact remains that for the assessment year 2006-07, no recovery is pending under regular assessment against the writ petitioner. For the assessment year 2007-08 the assessee declared income to the tune of Rs.25,01,700/- which was accepted by the Assessing Officer. For the assessment year 2008-09 the declared income of the assessee was Rs.25,82,561 which too was accepted by the Assessing Officer and then for the year 2009-10 declared income of the assessee is Rs.4,80,42,336/- which too was accepted. However, these are the regular assessment of the assessee. On 31st October, 2009, in the course of search and seizure under Section 132 of the Income Tax Act, the department claimed that some incriminating documents were found and, therefore, block assessment are to be made and said proceedings are going on since 31s' October, 2009. According to learned counsel for the petitioner, in that situation, under Section 153 A, the proceedings should have been completed within the period of 21 months, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 26/27 December, 2011 which was just 4 days before expiry of the limitation period for completion of the assessment. It is submitted that even the first notice was given to the writ petitioner only after 17 months from conducting the search and seizure of the petitioner's premises and that was done on 31st March, 2011 which was duly replied by the respondents on 18th April, 2011 and petitioner stated that the return, which he already submitted, may be treated to be return under the provision of the Act. In spite of this, it has been alleged that one questionnaire was given to the petitioner by the Revenue. However, this questionnaire was given to the petitioner only on 8th September, 2011 and before that already the Revenue proceeded by sending a letter to the C.I.T. Central, Patna seeking approval for attachment under Section 281 B of the Income Tax Act in respect of the Bank account and immovable property of the writ petitioner. Therefore, the petitioner could not be blamed for delay in the proceeding in any manner rather say the Revenue itself arbitrarily decided to proceed for attaching the immovable properly before even giving questionnaire to the writ petitioner. Be that as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner's business, which may even be a hurdle in payment of the dues of the Revenue if found against the writ petitioner. Learned counsel for the Revenue vehemently submitted that the power under Section 281 B of the Act, 1961 is very wide and the special provision has been made, where under the Assessing Officer after forming opinion has passed the attachment order of the properties of the assessee to safe guard the Revenue's interest. It is submitted that it is a very infamous case wherein, even the former Chief Minister of Jharkhand State, namely, Madhu Koda had direct links and there may be possibility of shifting out huge amount of crores of rupees and the liability of the petitioner, though cannot be assessed, may be of larger magnitude. It is submitted that Revenue even informed the writ petitioner to furnish bank guarantee for withdrawal of the attachment order but the writ petitioner did not submit the bank guarantee as demanded by the Revenue. It is submitted by learned counsel for the Revenue that now the interest of Revenue are required to protected against the personal interest and, therefore, the order was passed by the Revenue. We have considered the submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the writ petitioner lying with the J.S.E.B, which amount, on the face of it, appears to be an amount of working capital of the writ petitioner under business contracts of the petitioner with the State Electricity Board and this amount, according to the writ petitioner, is at present Rs.17.00 Crores . Obviously this amount is an amount for which the petitioner must have purchased something or must have obtained some services of some contractors also and he may require to pay amount to other parties also and there is no reason to believe that Rs.17.00 Crores of amount is amount of profit of the writ petitioner. At this juncture, it is worthwhile to consider the two judgments relied by the learned counsel for the petitioner delivered by the Bombay High Court in the case of Gandhi Tradings Vs. Assistant Commissioner of Income Tax, reported in (2000) 158 CTR (Bom) 512 and another judgment of the Allahabad High Court delivered in the case of Raghuram Grah(P) Ltd another Vs. Income Tax Officer Others, reported in (2006) 201 CTR (All) 268 . In the above judgments, after noticing the wide power of the Assessing Officer under Section 281 B, it is observed that though the powers a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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