2019 (3) TMI 290 - HC - Income Tax

Recovery proceedings - provisional attachment u/s 281B - directing the petitioner to remit some portion of the disputed dues to sufficiently protect the interests of the revenue - HELD THAT - As per the Schedule, the impugned provisional attachment covers the property situated at No.1, City Link Road, Adambakkam, Chennai, under the name and style of Shantiniketan Altair comprising 414 apartments. 362 apartments have been sold and 52 remained unsold. As against the number of apartments remaining unsold, the petitioner has, as on date, confirmed the sales of nine (9) apartments that are pending registration. The following directions are issued (i) The petitioner will deposit a sum of ₹ 50,00,000/- (Rupees fifty lakhs only) to the department. (ii) Upon receipt of the sum of ₹ 50,00,000/- as above, the Department will restrict the present attachment under section 281 B to the flats in S.Nos.1 to 20 of the tabulation set out in paragraph 12 above along with the undivided share of land in relation thereto. Upon satisfaction of the above conditions, there shall be no further proceedings for recovery undertaken by the income tax department till the disposal of the petitioners first appeal.

Summary

Issues:
1. Challenge to assessment order and demand raised.
2. Provisional attachment of property under Section 281B of the Income Tax Act, 1961.
3. Legal grounds for challenging the provisional attachment.
4. Arguments presented by both parties regarding the attachment.
5. Petitioner's request for stay on payment of taxes and lifting of attachment.
6. Valuation and details of the property under attachment.
7. Resolution and directions issued by the court.

Analysis:

1. The Writ Petition challenges the assessment order for the assessment year 2016-2017, which raised a significant demand towards tax, surcharge, cess, and interest. The petitioner, a partnership firm engaged in real estate development, filed a return of income and a revised return claiming deductions under Section 40(a)(i a) of the Income Tax Act, 1961. The assessment was completed under Section 143(3) by the 2nd respondent, leading to the demand being contested through an appeal before the Commissioner of Income Tax (Appeals).

2. The provisional attachment of the petitioner's property under Section 281B of the Act is a central issue. The property, constituting the petitioner's stock-in-trade, was attached for a period of six months, causing severe hardship and prejudice. The petitioner sought a Writ of Certiorari to quash the order of attachment, arguing that the department lacked material to justify the attachment and that it was contrary to law.

3. The petitioner's counsel challenged the attachment order on legal grounds, emphasizing the necessity of issuing a notice prior to attachment and the requirement for the department to establish that the assessee would evade payment. Citing a precedent from the Bombay High Court, the counsel argued that the attachment was unjustified.

4. The Revenue defended the attachment, stating that it was necessary to protect the interests of the revenue. The department highlighted the petitioner's obligation to pay the dues to lift the provisional attachment. The petitioner, in a letter to the Assessing Officer, requested a stay on payment and lifting of the attachment, offering to deposit a portion of the disputed tax demand.

5. The petitioner's plea for stay on payment and lifting of the attachment was based on the adverse impact on their business operations and the inability to sell properties due to the attachment. Despite the petitioner's assurance to withdraw the Writ Petition, they continued to pursue the matter in court.

6. Valuation details of the property under attachment were provided, indicating the value of unsold apartments and the petitioner's proposal to deposit a sum to secure the revenue's interests. Both parties agreed that a portion of the disputed dues should be remitted to protect the revenue's interests during the appeal process.

7. The court issued directions for the petitioner to deposit a specified sum, after which the attachment would be restricted to certain properties. Further recovery proceedings were stayed until the disposal of the petitioner's first appeal. The Writ Petition was disposed of with no costs, resolving the issues raised regarding the assessment order and the provisional attachment effectively.