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TMI Blog2022 (3) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... instructions from his client. If the writ-applicant is ready and willing to furnish the bank guarantee to the extent of 1.25 Crore of Bank of India or ICICI Bank, then, in such circumstances, it is ordered that the provisional attachment may no longer continue - this writ-application is disposed off with a direction to the respondent no.2 to de-freeze the three bank accounts upon the writ-applicant furnishing a bank guarantee of 1.25 Crore and individual undertakings of the Directors of the company. X X X X Extracts X X X X X X X X Extracts X X X X ..... 021 and 12.10.2021 passed by respondent no.1 and, by an interim order and injunction of this Hon'ble Court direct the respondent no.2 to forthwith permit the petitioner to operate bank accounts maintained with respondent nos.3 to 5; (d) an ex-parte ad-interim relief in terms of prayer (d) above may kindly be granted; (e) such other and further order or orders as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted." 3. We need not delve much into facts of this case giving rise to the present litigation, as our order dated 2nd February 2022 would make the picture clear. The same reads thus:- "1. We have heard Mr. Prakash Shah, the learned senior counsel assisted by Mr. Dhaval Shah, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vy 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 the delegation effected under Section 5(3) and an appeal against the order of provisional attachment was not available under Section 107(1); 76.2 The writ petition before the High Court under Article 226 of the Constitution challenging the order of provisional attachment was maintainable; 76.3 The High Court has erred in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 into conclusion that he had a discretion on whether or not to grant an opportunity of being heard; 5. Prima-facie, it appears on plain reading of the three orders of the provisional attachment referred to above that the same does not record any satisfaction that it is necessary to provisionally attach the bank accounts so as to protect the interest of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delines. The one of the instructions provide that the action should not be of such a type that the entire business of the firm/ assessee would come to a standstill. We shall look into this Circular also on the next date of hearing." 4. The subject matter of challenge is the legality and validity of the action on the part of the respondent no.2 herein in passing three distinct orders of provisional attachment of three bank accounts of the writ-applicant. The details of the three bank accounts are under:- Sr. No. Bank Name Bank Account No. Amount 1. Bank of India 4201000817 37,46,284.86/- 2. ICICI Bank 026105009253 1,98,74,853.20/- 3. Kotak Mahindra Bank 1012078742 92,054.90/- 5. Thus, it appears that as on date, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India or ICICI Bank, then, in such circumstances, we should order that the provisional attachment may no longer continue. 9. We also heard Mr. Dhaval Vyas, the learned senior counsel appearing for the Department. According to Mr. Vyas, the bank guarantee of ₹ 1.25 Crore would not protect the interest of the revenue as the liability is almost ₹ 60 Crore. Assuming for the moment that the liability is of ₹ 60 Crore, what the writ-applicant has today in his bank account is just a little more than ₹ 2 Crore. 10. We are of the view that we should ask the writ-applicant to furnish the bank guarantee of ₹ 1.25 Crore and also, ask the individual Directors of the Company to file an undertaking in writing before this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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