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TMI Blog2022 (2) TMI 940X X X X Extracts X X X X X X X X Extracts X X X X ..... nd situated at Block No.142, New Block No.166, T.P. 22, F.P.53, Village Valak, Taluka Kamrej, District Surat consequence to the order at Annexure- 'A' dated 29.05.2021. (C) Pending the admission, hearing and final disposal of this petition, to stay operation of the order at Annexure - 'A' to this petition to the limited extent to attachment over land admeasuring 11981 sq.mtr. Land situtated at Block No.142, New Block No.166, T.P. 22, F.P.53, Village Valak, Taluka Kamrej, District Surat as well as to stay the operation of amendment in Village Form Number 7 dated 29.05.2021 (Annexure B); (D) Any other and further relief deemed just and proper begranted in the interest of justice; (E) To provide for the cost of this petition. 2. The facts giving rise to this writ-application may be summarized as under:- 2.1 The writ-applicant is a Partnership Firm. It came to be constituted on 20.11.2014 and got duly registered with the Registrar of Firms on 26.11.2014. 2.2 It appears from the materials on record that a search and seizure was undertaken under Section-132 of the Act at the premises of one Arnav Mukeshbhai Savaliya (searched person). In the course of the search, many documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the course of search conducted u/s.132 in the premises of the assessee which belonged to Shri Arnav Savaliya, there is a likelihood of huge demand being raised in the case of the above assessee on the basis of investigations/enquires being conducted during the course of assessment proceedings. The assessment proceedings u/s.153A for Assessment Year 2014-15 to 2019-20 is in progress. Accordingly, I am of the opinion that for the purpose of protecting the interest of Revenue it is necessary to attach provisionally the properties belonging to the assessee u/s.281B of the I.T. Act, 1961. Hence, following properties are required to be provisionally attached with immediate effect:- IMMOVABLE PROPERTIES ATTACHED All rights and interest of assessee Shri Arnav Savaliya in following properties: Shri Arnav Savaliya (PAN: BRGPS5116K) Particulars Cost as per document executed (Rs. In Cr.) Details of Registration Land at Block No.184, Niyol (50% share) [Niyol-Palsana] 0.48 Vide Document No.PSN/ 6992, dated 22.03.2018, Rs. 90,98,000/-. Construction at Block No.199, Niyol [Niyol-Palsana] 0.48 Vide Document No.PSN/2357, dated 28.02.2017, Rs. 5,26,11,000/-. Land at Block No.196, N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arkar appearing for the writ-applicant vehemently submitted that the impugned order of provisional attachment in exercise of powers under Section-281B of the Act to the extent of Block No.142, New Block No.166, T.P.-22, F.P.-53, is erroneous in law and without jurisdiction. The argument of the learned senior counsel proceeds on the footing that under Section-281B what can be attached is the property of the assessee. The assessee in the present case is Arnav Savaliya. It is argued that Nitaben Radadiya as one of the partners of the writ-applicant - Firm might have assigned her 2.5% share in the profit of the firm in favour of Arnav Savaliya, but that does not mean that the block No.142, which is otherwise an asset owned by the Partnership Firm would become one of the properties of the assessee, and the same can be attached under Section-281B of the Act. 5. Mr. Soparkar to make good his aforesaid submission, first invited our attention to Section-29 of the Partnership Act, 1932. Section-29 of the Partnership Act reads thus:- "29. Rights of transferee or a partner's interest.- (1) A transfer by a partner of his interest in the firm, either absolute or by mortgage, or by the creat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtner, make an order charging the interest of such partner in the partnership property and profits with payments of the amount due under the decree and may, by the same or a subsequent order, appoint a receiver of the share of such partner in the profits (whether already declared or accruing) and of any other money which may be coming to him in respect of the partnership, and direct accounts and inquiries and make an order for the sale of such interest or other orders as might have been directed or made if a charge had been made in favour of the decree-holder by such partner, or as the circumstances of the case may require." 9. Order 21 Rule 49 is analogous to the principle of Section-29 of the Partnership Act referred to above. 10. Our attention was, thereafter, drawn to Section-281B of the Act, which reads thus:- 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p property, the Tax Recovery Officer may make an order charging the share of such partner in the partnership property and profits with payment of the amount due under the certificate, and may, by the same or subsequent order, appoint a receiver of the share of such partner in the profits, whether already declared or accruing and of any other money which may become due to him in respect of the partnership, and direct accounts and enquiries and make an order for the sale of such interest or such other order as the circumstances of the case may require. (2) The other persons shall be at liberty at any time to redeem the interest charged or, in the case of a sale being directed, to purchase the same." 14. In such circumstances referred to above, Mr. Soparkar prays that there being merit in his writ-application, the same be allowed and the impugned order of provisional attachment to the extent it includes the Block No.142 i.e. the land owned by the writ-applicant - Partnership Firm be quashed set aside. 15. On the other-hand, this writ-application has been vehemently opposed by Ms. Kalpana Raval, the learned senior standing counsel appearing for the revenue. Ms. Raval would submit t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bhai Radadiya was admitted as a partner in the firm on 14.08.2018 having share of 5% in the firm. It is seen that the wife was awarded the same position as her husband in the firm. Further, it is seen that Shri Arnav M Savaliya has purchased 2.5% share unofficially (on money or cash money) out of 5% share of Nitaben Shailesh Radadiya with an investment of Rs. 1,50,00,000/-. During the course of Search proceedings the statement of Shri Mukesh N. Savaliya (father of Shri Arnav M. Savaliya) was recorded on oath u/s.132(4) of the Income Tax Act, 1961, in which Shri Mukesh N. Savaliya has confronted the same with the incriminating document. The relevant part of the same is as under: In the view of the above, the property situated at B.No.142, New Block No.166, T.P.22, F.No.53, Valak, was provisionally attached vide this office order no.ITBA/COM/F/1/2021-22/1033162496(1) dated 29.05.2021 for the purpose of the protecting the interest of Revenue. As evident from the above statement Rs. 1,50,00,000/- in cash was paid to acquire 2.5% share in the impugned land. It would appear prima facie, based on evidence available that the on-money component involve in the entire land is of Rs. 60,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n writing, attach provisionally any property belonging to the assessee, and for the said purposes, the provisions of the Second Schedule shall, mutatis mutandis, apply." For the impugned land, the first provisional attachment was done by ITO(Investigation), Surat dated 21.08.2020 after getting due approval from Pr. DIT(Investigation), Surat and during the course of assessment proceedings, the office of respondent has passed the order u/s.281B on 29.05.2021 & again extended vide this office order dated 02.11.2021 in accordance with law. 10. With respect to contentions raised in Para 2.5 and 2.6, it is submitted that the petitioner was required to file his request letter to lift provisional attachment to the office of Pr. Commissioner of Income-tax (Central), Surat since as per section 281B of the I.T. Act, he is the appropriate authority to grant approval for provisionally attaching the property to protect the revenue. Further, the attachment u/s 281B is provisional in nature and it automatically expired after 60 days from completion of assessment proceedings and in the case of Shri Arnav Savaliya, the assessment will be completed before 31st March, 2022. Further, the investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Para 3.2 & 3.3, it is submitted that there is no dispute on the fact that Shri Arnav Mukeshbhai Savaliya is not an official partner in the petitioner firm as per registered deed of firm. The basis of provisional attachment under section 281B is to protect revenue as the incriminating evidence reveals involvement of on-money for 2.5% share in the impugned land and the same was confirmed by Shri Mukesh Savaliya through statement on oath u/s.132(4) of the I.T. Act also. 14. With respect to contentions raised in Para 3.4, it is submitted that as per the Provisional Attachment order u/s.281B of the I.T. Act dated 29.05.2021, the provisional attachment for the impugned land was done only to the extent of 2.5% (for which incriminating seized document reveals payment of onmoney by Shri Arnav Savaliya). The contention of the petitioner bears no merit. 15. With respect to contentions raised in Para 3.5, it is submitted that the basis of provisional attachment under section 281B of the I.T.Act is to protect the interest of revenue and the same was done on the basis seizure of incriminating material and statement of related party on oath for on-money payment related to 2.5% share in impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chment. 20. In such circumstances referred to above, Ms. Raval, the learned senior standing counsel appearing for the revenue prays that there being no merit in the writ-application, the same may be rejected. 21. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the revenue could have proceeded to attach the subject property in the form of land, which indisputably is of the ownership of the writ-applicant - Partnership Firm. 22. The plain reading of Section-281B of the Act would make it clear that the same provides for the provisional attachment of the property belonging to the assessee for a period of six months from the date of such attachment unless extended, but excluding the period of stay of the assessment proceedings, if any. Under Subsection (1) of Section 281B of the Act thus, where during the pendency of any proceedings for assessment or reassessment, if the Assessing Officer is of the opinion that for the purposes of protecting the interest of Revenue, it is necessary so to do, he may with the previous approval of the higher authority pass an order i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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