9911796707
TMI Blog2023 (6) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution of India in which the petitioner has prayed for the following relief/s: "a) That this Hon'ble Court be pleased to issue a Writ of Certiorari quashing and setting aside the provisions attachment proceedings under Section 83 of the Act by the Assistant Commissioner vide dated 16.06.2022 at Annexure D to this petition and be further pleased to direct the Respondents to return, repay and refund to the petitioner the amounts as prayed for by them in Letter dated 1.7.2022 at Annexure D to this petition; b) That this Hon'ble Court be pleased to issue a writ of declaratory mandamus holding that the Petitioners are entitled to return, repay and refund the amount as prayed for by them in the letter dated 01.07.2022 at Annexure to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er order of provisional attachment of the property under Section 83 of the Act came to be passed on 16.06.2022. It is submitted that out of the total amount of Rs. 56,14,388, Rs. 46 lakhs came to be withdrawn by the respondents from the bank account of petitioner maintained with HDFC Bank. 4. It is further stated that the petitioner preferred an appeal on 04.07.2022 under Section 107 of the Act before the Appellate Authority. However, there was delay in preferring the said appeal and therefore petitioner has filed separate application for condonation of delay. Copy of the said application is produced at page 56 of the compilation. 5. It is also stated that as per the provisions contained in Section 107 of the Act, the petitioner is requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of this petition. It is further submitted that notice in the prescribed form was given to the petitioner. Learned AGP at this stage has referred the provisions contained in Section 78 of the Act. It is pointed out that on completion of period of three months from the date of order dated 02.03.2022, the respondent authority has recovered an amount of Rs. 46 lakh and thereafter on 04.07.2022 the petitioner preferred an appeal before the Appellate Authority under Section 107 of the Act. Learned AGP, therefore, submitted that once the amount of Rs. 46 lakh is already recovered as per the provisions contained in the Act read with the Rules, it is not open for the petitioner to request for refund of the said amount merely because the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is the case of the petitioner that as per the provisions contained in section 107 of the Act, the petitioner is required to pre-deposit 10% of the amount of tax i.e. Rs. 3,55,334/-. However, the respondents have recovered an amount of Rs. 46 lakh and therefore it is prayed that the respondents be directed to refund the remaining amount of Rs. 42,44,664/- to the petitioner. We are of the view that such contention is misconceived in view of the provisions contained in Section 73(9) read with Sections 78 and 107 of the Act. If the appeal filed by the petitioner is allowed by the Appellate Authority, it is always open for the petitioner to make such request before the Appellate Authority that direction be issued to the respondents to refund ..... X X X X Extracts X X X X X X X X Extracts X X X X
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