PRAKASH TATIA, APARESH KUMAR SINGH JJ. - (1.) HEARD Learned Counsel for the parties. The petitioner is aggrieved against the order of attachment of payment against outstanding bill with the Jharkhand State Electricity Board, Dhurwa, Ranchi, which has been attached in exercise of power under Section 281B of the Income Tax Act, 1961( Annexure -5 dated 27th September, 2011).
(2.) WE have taken note of the facts in details in our order dated 23rd January, 2012, which reveals that : - petitioner is an old assessee of the Income Tax Department and for the year 2003 -04 he declared his income to be Rs. 36,47,500/ - against which income of the petitioner was assesssed to the tune of Rs. 47,43310 under section 143(3) of the Income Tax Act. In appeal, the said order of addition of income, was set aside and matter was remanded to the Assessing Officer who accepted the returned income submitted by the writ petitioner. For the year 2004 -05, the assessee petitioner declared his income to be Rs. 64,53,070/ - where as the Assessing Officer assessed the income to the tune of Rs. 1,18,93,070/ - under Section 143(3). However, petitioner's appeal against the said assessment order was allowed and that addition was set aside and the order of C.I.T.(Appeals) was confirmed by the I.T.A.T. For the year 2005 -06 the petitioner -assesses declared his income to be Rs. 1,06,27,862/ - whereas his income was assessed by the Assessing Officer to the tune of Rs. 3,76,27,860/ - under Section 143(3). However, C.I.T.(Appeals), in the appeal preferred by the writ petitioner, only added Rs. 1,85,200/ - to the declared income of the writ petitioner. For the year 2006 -07, the declared income of the petitioner was Rs. 78,57,635/ - which has been assessed by the Assessing Officer to the tune of Rs. 3,09,55,402/ - under Section 143(3) which is the subject matter in the appeal preferred by the writ petition before the C.I.T.(Appeals). In this year, a writ petition was preferred by the writ petitioner i.e. W.P.(T) No. 1247 of 2009 wherein direction was issued to the C.I.T. (appeals) by this Court on 26.11.2010 to decide the appeal expeditiously and till then no coercive action be taken against the writ petitioner. The said appeal has not yet been decided and accordingly to Learned Counsel for the parties, that appeal was not decided because the post of C.I.T.(Appeals) is lying vacant since long. However, Learned Counsel for the Revenue submitted that now the new officer has been appointed as C.I.T.(Appeals) but he has not taken charge as yet. Be it as it may be, fact remains that for the assessment year 2006 -07, no recovery is pending under regular assessment against the writ petitioner. For the assessment year 2007 -08 the assessee declared income to the tune of Rs. 25,01,700/ - which was accepted by the Assessing Officer. For the assessment year 2008 -09 the declared income of the assessee was Rs. 25,82,561 which too was accepted by the Assessing Officer and then for the year 2009 -10 declared income of the assessee is Rs. 4,80,42,336/ - which too was accepted. However, these are the regular assessment of the assessee. On 31st October, 2009, in the course of search and seizure under Section 132 of the Income Tax Act, the department claimed that some incriminating documents were found and, therefore, block assessment are to be made and said proceedings are going on since 31st October, 2009. According to Learned Counsel for the petitioner, in that situation, under Section 153A, the proceedings should have been completed within the period of 21 months, however, that has not been completed but after about 17 months, first notice was served upon the writ petitioner which is dated 30th March, 2011 and thereafter an order of attachment of the petitioner's various fixed deposits, bank accounts, insurance policies and immovable properties, has been passed on 30th August/1st September, 2011, copy of which has been placed on record as Annexure -4. Then second attachment order was passed on 22nd September, 2011 attaching all payments against the bills outstanding with the J.S.E.B. Of the writ petitioner. Learned Counsel for the petitioner vehemently submitted that in fact it is a case of clear abuse of power under Section 281B of the Income Tax Act and it is a colourable exercise of power by which the Revenue has proceeded to attach the petitioner's various deposits lying in the bank as well as the immovable property, for which the order was passed on 31st August, 2011/1st September, 2011. Not satisfied with above attachment, the respondent - Revenue further proceeded to attach virtually the working capital of the writ petitioner, whose payment against the bills outstanding with the J.S.E.B. are attached by exercising power under Section 281B of the Income Tax Act, 1961 and in the order it is not mentioned how much of the amount of the petitioner has been attached by the subsequent attachment order dated 22nd September, 2011, which according to the writ petitioner is about Rs. 17 Crores.
(3.) LEARNED Counsel for the petitioner vehemently submitted that the Department did not proceed to determine the liability of the petitioner, which should have been done only within 21 months from the date of getting the incriminating documents under the search and seizure operation in the financial year when the search was conducted under Section 132 of the Income Tax Act. Meaning thereby, that the search and seizure was conducted on 31st October, 2009 and the proceeding should have been completed within 21 months from 31st October, 2009. However, from the list of the events submitted by the Revenue in pursuance of this Court's order dated 23rd January, 2012 also it is clear that the Department did not take any steps to determine the liability of the petitioner and when the period of limitation was about to expire, they invoked the provision of Section 142(2A) of the Income Tax Act, 1961 by referring the matter to the special audit on 26/27 December, 2011 which was just 4 days before expiry of the limitation' period for completion of the assessment. It is submitted that even the first notice was given to the writ petitioner only after 17 months from conducting the search and seizure of the petitioner's premises and that was done on 31st March, 2011 which was duly replied by the respondents on 18th April, 2011 and petitioner stated that the return, which he already submitted, may be treated to be return under the provision of the Ac t. In - spite of this, it has been alleged that one questionnaire was given to the petitioner by the Revenue. However, this questionnaire was given to the petitioner only on 8th September, 2011 and before that already the Revenue proceeded by sending a letter to the C.I.T. Central, Patna seeking approval for attachment under Section 281B of the Income Tax Act in respect of the Bank account and immovable property of the writ petitioner. Therefore, the petitioner could not be blamed for delay in the proceeding in any manner rather say the Revenue itself arbitrarily decided to proceed for attaching the immovable properly before even giving questionnaire to the writ petitioner. Be that as it may, that questionnaire was duly answered by the writ petitioner on 25th October, 2011. Not only this, but it is further clear from the list of dates given by the Revenue Department - respondents that they did not even look into the computer hard disk of the writ petitioner to reach to the conclusion that the case involves more complex and complicated facts, which required to be examined by sending it for special audit because of the reason that even hard disk of the computer of the petitioner was opened on 2nd December, 2011, 7th December, 2011 and 12th December, 2011, much after the first and second orders of attachment were passed.;