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TMI Blog2022 (2) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... thority - second limb of Mr. Shah s submission is that at a point of time, when the powers under section-83 of the Act came to be exercised, the proceedings of the search under Section-67 of the Act had already come to an end. He would submit that as on date, there are no proceedings pending. Mr. Shah says so because till this date, the Department has not even thought fit to issue any show-cause notice. In such circumstances, according to Mr. Shah, the orders of provisional attachment cannot remain in force. Let Notice be issued to the respondents, returnable on 16.02.2022. Direct service to the respondents nos.2 to 5 is permitted. The respondent no.1 shall be served at the earliest by Email. - R/SPECIAL CIVIL APPLICATION NO. 2449 OF 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otecting the interest of the government revenue. He would submit that by-now it is well-settled position of law as explained by this High Court and also, affirmed by the Supreme Court in the case of Radha Krishan Industries Vs. State of Himachal Pradesh and Others reported in (2021) 6 SCC 771 that the power to levy a provisional attachment is draconian in nature. Mr. Shah invited the attention of this Court to Paragraph-76 of the judgment of the Supreme Court, wherein, the Supreme Court has summarized its findings as under:- 76. For the above reasons, we hold and conclude that:- 76.1 The Joint Commissioner while ordering a provisional attachment under Section-83 was acting as a delegate of the Commissioner in pursuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial bearing on the necessity of ordering a provisional attachment for the purpose of protecting the interest of the government revenue; 76.8 In the facts of the present case, there was a clear nonapplication of mind by the Joint Commissioner to the provisions of Section 83, rendering the provisional attachment illegal; 76.9 Under the provisions of Rule 159(5), the person whose property is attached is entitled to dual procedural safeguards: (a) An entitlement to submit objections on the ground that the property was or is not liable to attachment; and (b) An opportunity of being heard; There has been a breach of the mandatory requirement of Rule 159(5) and the Commissioner was clearly misconceived in law in coming ..... X X X X Extracts X X X X X X X X Extracts X X X X
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