Gujarat High Court
Assistant Commissioner Of vs Soham Securities on 12 July, 2013
Author: Akil Kureshi
Bench: Akil Kureshi
ASSISTANT COMMISSIONER OF INCOME TAXOR HIS SUCEESSOR TOOFFICV/SSOHAM SECURITIES LIMITED....Respondent(s) C/CA/5721/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION NO. 5721 of 2013 In SPECIAL CIVIL APPLICATION NO. 16617 of 2012 ================================================================ ASSISTANT COMMISSIONER OF INCOME TAXOR HIS SUCEESSOR TOOFFIC & 5....Applicant(s) Versus SOHAM SECURITIES LIMITED....Respondent(s) ================================================================ Appearance: MR KM PARIKH, ADVOCATE for the Applicant(s) No. 1 - 6 MR RK PATEL, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MS JUSTICE SONIA GOKANI Date : 12/07/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) The applicants-original respondents have filed present Civil Application seeking recall of our order dated April 16, 2013 passed in Special Civil Application No.16617 of 2012.
This prayer is made primarily on the ground that in such order, we had recorded that the order of attachment under Section 281B(2) of the Income-Tax Act, 1961 (hereinafter referred to as 'the Act') has not been extended. The interim order and the further directions, thus, proceeded on such basis. Whereas according to the applicant-Department because of the stay of the assessment proceedings by this Court, the concerned officer could not move the Commissioner for extension of period of attachment order. The learned counsel for the applicant-Department placed heavy reliance on the third proviso to Section 281B(2) of the Act, which provides that the period of two years provided in the first proviso to said sub-section (2) of Section 281B would exclude the period during which the proceedings for assessment are stayed by any Court.
We are afraid, on such basis it would not be possible to review our order dated April 16, 2013. In such order, we had provided that :
After hearing the learned counsel for the parties, we notice that the impugned order of attachment of the bank account of the petitioner No.910020050265257 of the Axis Bank, Opposite GEB, Near Pizza Hut, Race Course Circle, Vadodara was passed on 26.7.2012. In terms of sub section (2) of section 281B, such order would have a life of six months from the date of the order so far made under sub section (1) of Section 281B.
It is of course true that proviso to sub section (2) of section 281B empowers the authority prescribed therein for reasons to be recorded in writing to extend the said period by such further period not exceeding two years. In the present case, learned counsel Mr. Parikh, under the instructions of respondent No.6, stated that no further extension has been made. Under the circumstances, the situation that would emerge is that such provisional order of attachment would lapse by afflux of time by the end of January 2013. Since no further extension has been made in such order, at present, we would not inquire into the legality of such an order. It would be sufficient to clarify that such order having lapsed with afflux of time, the petitioner would be free to operate the said bank account.
What third proviso to Section 281B(2) of the Act provides is for exclusion of the period of two years provided in first proviso, during which the proceedings of assessment are stayed by any Court. This is not the issue in the present matter at all. What we had noticed and what was agreed by the learned advocate for the applicant-Department under the instructions of the officer of the Department, that after extension there was no further extension. At no stage, we precluded the applicant-Department from extending the attachment if it was otherwise open to do so in law. The extension of attachment and extension of uppermost time limit for attachment are two vastly different aspects. Under the circumstances, the request for recall is rejected. The application stands disposed of accordingly.
(AKIL KURESHI, J.) (MS SONIA GOKANI, J.) Aakar Page 4 of 4