9911796707
TMI Blog2001 (3) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... t respondents Nos. 5 to 9 be directed to release the stock of the petitioner and the petitioner be permitted to operate his bank account. It is further prayed that respondent No. 1 be restrained from passing any order of attachment in future unless the demand is created against the petitioner. Learned counsel for the petitioner submitted that the petitioner is carrying on wholesale business of food grains at Dabra. The petitioner received a copy of instructions on February 14, 206*1, issued by respondent No. 1, whereby the bank accounts of the petitioner were frozen in pursuance of survey proceedings under section 133A of the Income-tax Act, 1961, (hereinafter referred to as "the Act"). The stock lying with Krishi Upaj Mandi was also attac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel for the petitioner referred to a judgment in the case of Gaurav Goel v. CIT [2000] 245 ITR 169 (Cal), and submitted that the scope and ambit of section 281B of the Act, is that 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 assessments the Assessing Officer is of the opinion th6t 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. bx, order in writing, attach provisionally any property belonging to the asses, see in the manner provided in the Second Schedule. Counsel submitted that the concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it would be open to the Assessing Officer to make ex-parte assessments and raise the demand. The notice must be given to the party before proceeding with the case. The proceedings are in the nature of attachment before judgment under the Code of Civil Procedure. In the case of Mangalchand v. Sales Tax Officer [1966] 17 STC 226 (MP), recovery and attachment under the provisions of the Madhya Pradesh General Sales Tax Act, 1958, was considered and the provisions of section 33(4) of the said Act were considered. Counsel then referred to the judgment in the case of CIT v. Mahindra and Mahindra Ltd. [1983] 144 ITR 225, 237 (SC) ; AIR 1984 SC 1182, and invited attention to para. 11 of the judgment, wherein it is held that the court can interfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Assessing Officer on March 7, 2001, and Dabburam Gupta was summoned to appear in the office. Dabburam Gupta intimated that the information required by the Department would have to be collected and enough time would be required. Time was prayed on March 7, 2001. Reply has also been received in inward section. The documents have not been submitted. The respondents are proceeding very fast and there is no likelihood to delay in the matter of assessment as apprehended by the petitioner. The respondents submitted that the petitioners may appear before the assessing authority on the date fixed and in the event entire documents are produced, their grievance may be redressed within two weeks. The assessing authority has decided on February ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since it was apprehended that there is likelihood of evasion of tax, the assessment proceedings were initiated after due process and following the provisions of section 281B of the Income-tax Act. The respondents referred to the judgment in the case of Shyam Kishore v. Municipal Corporation of Delhi, AIR 1992 SC 2279, and invited attention to para. 42 of the judgment. He submitted that the provisions should be read rigidly and to seek to soften the rigour by reference to the availability of a recourse to the High Courts by way of a petition under articles 226 and 227 in certain situations and the departmental instructions referred to earlier does not appear to be a satisfactory solution. The departmental instructions may not always be fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded by him in writing and unless there is an approval by the Commissioner the question of approaching the Board does not arise, therefore, it could not be said that there was alter native remedy open to the petitioners. Considering the facts of the case and since the proceedings are pending, it will be appropriate that the authority shall pass the orders by releasing the property from attachment on taking bank guarantee from the petitioner for the sum alleged to be due against the petitioner which is likely to be assessed after final assessments The authority shall pass the orders to that effect within a period of three days from the date of communication of the order and on furnishing the bank guarantee the property shall be released by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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