2021 (11) TMI 573 - HC - Income Tax

Attachment orders - Fixed deposit attached by passing provisional order of attachment invoking Section 281-B(1) - HELD THAT - Having regard to the fact that the provisional attachment order of a property of a taxable person including the bank account of such person is draconian in nature and the conditions which are prescribed by the statute for the valid exercise of power must be strictly fulfilled, the exercise of power for order of provisional attachment must necessarily be preceded by formation of an opinion by the authorities that it is necessary to do so for the purpose of protecting the interest of Government revenue. Before the order of provisional attachment, the Commissioner must form an opinion on the basis of the tangible material available for attachment that the assessee is not likely to fulfill the demand payment of tax and it is therefore necessary to do so for the purpose of protecting the interest of the Government revenue. In addition to the aforesaid mandatory requirements, before passing the provisional attachment order, it is also incumbent upon the authorities to come to a conclusion based on the tangible material that without attaching the provisional attachment, it is not possible in the facts of the given case to protect the revenue and that the provisional attachment order is completely warranted for the purpose of protecting the Government revenue. Applying the principles laid down in Radha Krishan s case 2021 (4) TMI 837 - SUPREME COURT to the facts of the instant case, a perusal of the impugned provisional attachment order will clearly indicate that except for merely stating that since there is a likelihood of huge tax payments to be raised on completion of assessment and that for the purpose of protecting the revenue, it is necessary to provisionally attach the fixed deposit of the petitioners, the other mandatory requirements and pre-condition as laid down by the Apex Court have neither been complied with nor fulfilled or followed prior to passing the impugned order. It is apparent that the impugned provisional attachment orders at Annexures-D, D1, D2 and D3 do not satisfy the legal requirements as laid down in Radha Krishan s case 2021 (4) TMI 837 - SUPREME COURT and consequently, in view of the fact that the impugned provisional orders are cryptic, unreasoned, non-speaking and laconic, the same deserve to be quashed. In so far as the apprehension of the respondents that in the event huge tax payments are to be raised as against the petitioners-assessee, the assessee may not make payment of the same causing loss to the revenue is concerned, in the light of the undisputed fact that the proceedings under Section 153-A of the said Act of 1961 have already been initiated coupled with the fact that Section 281 of the said Act of 1961, contemplates that any alienation of any property belonging to the petitioners would be null and void, in addition to the specific assertion made by the petitioner that they own and possess immovable property to the tune of more than ₹ 300 crores, the said apprehension of the respondents is clearly unfounded and without any basis and consequently the said apprehension of the respondents cannot be accepted. Order - The petition is allowed. The impugned orders dated 26.03.2021 at Annexures-D, D1, D2 and D3 passed by respondent No.1 are hereby quashed.

Issues Involved:
1. Validity of provisional attachment orders under Section 281-B(1) of the Income Tax Act, 1961.
2. Compliance with mandatory requirements and parameters before passing provisional attachment orders.
3. Formation of opinion by the Commissioner based on tangible material.
4. The necessity of provisional attachment to protect government revenue.
5. Maintainability of writ petition under Article 226 of the Constitution of India.

Issue-wise Detailed Analysis:

1. Validity of Provisional Attachment Orders:
The petitioners sought quashing of the provisional attachment orders dated 26.03.2021 under Section 281-B(1) of the Income Tax Act, 1961. The orders attached the fixed deposits of the petitioners.

2. Compliance with Mandatory Requirements:
The petitioners contended that the orders lacked necessary mandatory requirements such as the recording of reasons and satisfaction by the authorities. The petitioners argued that no valid or cogent reasons were provided for the necessity of the provisional attachment.

3. Formation of Opinion by the Commissioner:
The court referred to the Supreme Court's decision in Radha Krishan Industries v. State of Himachal Pradesh, emphasizing that the Commissioner must form an opinion based on tangible material that provisional attachment is necessary to protect government revenue. The power to levy provisional attachment is draconian and requires strict compliance with statutory preconditions.

4. Necessity of Provisional Attachment:
The court noted that mere apprehension of huge tax demands is insufficient for provisional attachment. The Commissioner must form an opinion that without such attachment, the interest of the revenue would be defeated. The necessity must be based on tangible material indicating that the assessee is likely to defeat the demand.

5. Maintainability of Writ Petition:
The court held that a writ petition under Article 226 is maintainable to challenge provisional attachment orders. It cited the Supreme Court's decision, which stated that the draconian nature of the power to attach property requires strict fulfillment of statutory conditions.

Conclusion:
Applying the principles from Radha Krishan’s case, the court found that the impugned orders did not satisfy the legal requirements. The orders were cryptic, unreasoned, and lacked necessary preconditions. The apprehension that the petitioners might not pay the tax was unfounded, given that proceedings under Section 153-A had already been initiated and the petitioners possessed substantial immovable property.

Order:
1. The petition was allowed.
2. The impugned orders dated 26.03.2021 were quashed.
3. Liberty was reserved for the respondents to take action in accordance with the law, considering the court's observations.

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