TMI Blog2015 (2) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... be in default". Similarly, in the absence of any notice to pay the arrears of tax as per rule 51 of the Second Schedule, Part III, of the Act, there cannot be any provisional attachment under section 281B of the Act. - Decided in favour of assessee. - W.P.(MD).No.1455 of 2014 and M.P.No.1 of 2014 - - - Dated:- 25-6-2014 - MR. R.SUBBIAH, J. For the Appellant: Mr. K. M. Vijayan, Senior Counsel for Mr. Shanmuga Selvam For the Respondent : Mr.R. Krishnamoorthy JUDGEMENT R. Subbiah J.- This writ petition has been filed by the petitioner challenging the impugned order of attachment of the property of the petitioner, passed by the second respondent under section 281B of the Income-tax Act, 1961. 2. The case of the petitioner, as set out in the affidavit, is as follows : (a) The petitioner is an assessee on the file of the second respondent under PAN-AVQPS2344J. During the year 2011, the petitioner purchased a piece of land admeasuring about 15698 sq. ft, comprised in S. F. No. 643 situated at Andankoil East Village, Covaik Road, Reddi Palayam, Karur, with the object of constructing 25 flats under the name and style of Apple Paradise . For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tunity of filing an appeal, the second respondent issued an order of attachment dated October 29, 2013, to the Joint-II Sub Registrar, Sub-Registration Office at Karur, directing him to attach 7 flats in the above said apartments of the petitioner, which are yet to be sold. The said notice was affixed in the 7 flats, which are remaining unsold. On receipt of the attachment order, the petitioner has filed two petitions before the first respondent, one on October 30, 2013, and another on November 16, 2013, seeking to lift the attachment. But, instead of reply to the said petitions, the petitioner had received a copy of the letter/order sent to the Joint-II Sub-Registrar, Karur, directing him to attach the property of the petitioner under section 281B of the Income-tax Act. Subsequently, a cor rigendum was issued by the second respondent correcting paragraph 3 of the order of attachment under section 281B of the Act. Hence, challenging the order of attachment and corrigendum, the present writ petition has been filed by the petitioner. 3. Pending the writ petition, this court has granted an order of interim stay, vide order dated April 23, 2014, made in M. P. (MD) No. 1 of 2014 in W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted that inadvertently mistakes have happened in issuing the order of attachment and the same is regretted. An attachment order can be made by the Assessing Officer (ITO) only with the approval of the Commissioner of Income-tax and, in the instant case, the approval was granted. Thus, the respondents sought for vacating the interim order and dismissal of the writ petition. 5. It is the main submission of the learned senior counsel appearing for the petitioner that without any prior demand notice and without any prior intimation to the petitioner, the order of attachment has been issued. Hence, the said order is not legally sustainable. In support of this contention, the learned senior counsel for the petitioner has made an elaborate argument, by inviting the attention of this court to sections 222, 220(4) and 281B of the Income-tax Act. 6. Per contra, the learned counsel appearing for the respondents submitted that a provisional attachment order can be made under section 281B of the Act during the pendency of any proceedings for assessment or reassessment of the income, which has escaped assessment, for the purpose of protecting the interests of the Revenue. Therefore, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as may be specified by him in the notice of demand. (2) If the amount specified in any notice of demand under section 156 is not paid within the period limited under sub-section (1), the assessee shall be liable to pay simple interest at one per cent. for every month or part of a month comprised in the period commencing from the day immediately following the end of the period mentioned in sub-section (1) and ending with the day on which the amount is paid : Provided that, where as a result of an order under section 154, or section 155, or section 250, or section 254, or section 260, or section 262, or section 264 or an order of the Settlement Commission under sub-section (4) of section 245D, the amount on which interest was payable under this section had been reduced, the interest shall be reduced accordingly and the excess interest paid, if any, shall be refunded : Provided further that in respect of any period commencing on or before the 31st day of March, 1989, and ending after that date, such interest shall, in respect of so much of such period as falls after that date, be calculated at the rate of one and one-half per cent., for every month or part of a month. (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided under Schedule II to the Income-tax Act. In this regard, it would be appropriate to extract section 281B and rules 1(b) and 2(c) in Part I and rule 51 in Part III, Schedule II to the Income-tax Act, which read as follows : 281B. Provisional attachment to protect revenue in certain cases- (1) Where, during the pendency of any proceeding for the assessment of any income or for the assessment or reassessment of any income which has escaped assessment, the Assessing Officer is of the opinion that for the purpose of protecting the interests of the revenue it is necessary so to do, he may, with the previous approval of the Chief Commissioner, Commissioner, Director General or Director, by order in writing, attach provisionally any property belonging to the assessee in the manner provided in the Second Schedule. Explanation.-For the purposes of this sub-section, proceedings under sub-section (5) of section 132 shall be deemed to be proceedings for the assessment of any income or for the assessment or reassessment of any income which has escaped assessment. (2) Every such provisional attachment shall cease to have effect after the expiry of a period of six ..... X X X X Extracts X X X X X X X X Extracts X X X X
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