TMI Blog2014 (5) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... eal against the assessment order is expired - the AO has duly discharged its obligation under the statute while passing the order u/s 281B of the Act which has been validly approved by the Commissioner – Decided against Assessee. - Misc. Bench No. - 2442 of 2014 - - - Dated:- 25-4-2014 - Hon'ble Shri Narayan Shukla And Hon'ble Vishnu Chandra Gupta,JJ. For the Petitioner : Waseeq Uddin Ahmed For the Respondent : Ghanshyam Chaudhary ORDER (Delivered by Hon'ble Vishnu Chnadra Gupta,J.) By means of this writ petition, Sahara Credit Cooperative Society Limited (hereinafter referred to as the petitioner ), challenged the order passed by the Joint Commissioner, Income Tax Lucknow dated 5.3.2014, under Section 281B (1) of the Income Tax Act 1961 (hereinafter referred to as the Act ), by which the provisional attachment of the bank accounts of the petitioner's society were made during the course of proceeding of assessment of assessment year 2011-2012. Brief facts for deciding this writ petition are that the petitioner is a Multi-State Cooperative Society, which came into existence on 1.10.2009. The aforesaid society was registered under the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the revenue to provisionally attach the bank accounts of the assessee, M/s Shara Credit Cooperative Society Ltd. Shara India Bhawan, Kapoorthala complex, Aliganj, Lucknow, 226024 . The details of bank accounts of the above named assessee are given below - S.No. Name address of bank Account numbers Under same ID 1. Punjab National Bank, Mahanagar, Lucknow 758002100139486 2. Corporation Bank, Aliganj,Lucknow ......... 3. United Bank of India,Aliganj, Lucknow ........ 4. Allahabad Bank,Aliganj, Lucknow ........ 5. ICIC Bank Ltd. Arohi Complex, Block-2,Kapoorthala, Aliganj, Luckow ........ 6. UCO Bank, IT College, Branch, 9A,Raidas Mandir Crossing, Nirala Nagar, Lucknow. ........ 7. Central Bank of India, Bhatia Complex Mandir Marg, Mahanagar, Lucknow ........ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording to him the action contemplated under Section 281B of the Act, is causing serious adverse consequences to the petitioner and in view of the ratio laid down by the Apex Court. In the aforesaid judgement reasonable opportunity of being heard, should have been provided to whom the order is proposed, even if the statutory provision excludes the application of pre-decisional hearing. He also relied upon a judgment of Apex Court in C.B. Gautam Vs. Union of India and others (1993) 11 SCC 78, wherein their Lordships while dealing with the provision of Section 269UD of the Act, almost similar view was propounded. He also relied upon the judgement of the jurisdictional court reported in (2006) 201 CTR Allahabad, 268 Raghuram Grah Pvt. Ltd. and others Vs. Income Tax Officer and others and submitted that the order under Section 281 B should be passed on sound basis and opinion formed by the assessing officer should be on the basis of material available on record. It may not be based on gossip or on hearsay. Learned counsel for the Revenue relying upon the judgment of Punjab and Haryana High Court rendered in Civil Writ Petition No.24380 of 2011 (Nirmal Singh. Vs. Union of India) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases. A safeguard has been provided in exercise of jurisdiction by the Assessing Officer that before implementing its opinion, he must have sought prior approval of his own action. Section 281B is virtually a provision lite attachment before the judgment as provided in Order 38 Rule 5 of the CPC and the aim of introducing this provision is virtually to protect the interest of revenue. The provision clearly speaks that this power can be exercised by the Assessing Officer during the course of assessment of any income of assessee either during the course of original proceeding or assessment or re-assessment of any income which has been escaped assessment. The next requirement is that assessing officer is of the opinion that for the purpose of protecting the interest of revenue, it is necessary to do so and to check the arbitrariness of the assessing officer, a rider has been imposed that previous approval of Chief Commissioner, Commissioner, Director General or Director would be necessary. This previous approval would not be oral but shall be in writing. The provisional attachment shall cease to have effect after the expiry of a period of six month from the date of the order or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Joint Commissioner (AO) to the Commissioner, who on his turn granted approval for action proposed by the Joint Commissioner, Income Tax. The assessment now, has been completed and the liability of Rs. 840 and odd crores has been fastened against the petitioner regarding tax during the relevant assessment year though in fact, the amount attached in the Banks is only of Rs. 22 crores and odd, which is very meagre amount. So far as the tax liability of the petitioner is concerned, we are of the view that we should to make any comment on the material placed by the petitioner before the assessing authority as stated in the rejoinder affidavit because the final assessment is subject to appeal. In view of the above, we are of the view that petition sans merit. However, the amount under attachment shall not be appropriated against the demand raised till the period of preferring appeal against the assessment order is expired. In case of appeal, the amount under attachment shall be subject to appropriation in terms of the order passed by the appellate court but at the same time the amount under attachment shall not be allowed to be withdrawn by the petitioner. We are of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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