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4. Thereafter, on 24/7/2008 the Deputy Director of Income Tax (Investigation) issued a notice under section 153A of the Act calling upon the assessee to file return of income for the past six years. On the same day, i.e. on 24/7/2008 itself, the Asstt.

    Commissioner      of   Income      Tax, Mumbai passed               an     order

    under    section 281B(1) of the Act thereby provisionally

    attaching      the immovable properties of the assessee and

    also    shares of various companies held in demat account





                          -=    :   4    : =-



    by    the petitioner No.2.         The assessee objected to                 the

    attachment      levied     under section 281B of the Act.                     As

    the    attachment was not lifted, the present petition is




                                                                           
    filed.




                                                   
    5.           Mr.Andhyarujina,        learned        senior          Advocate

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22. The fact that the notice under section 153A of the Act as well as the order under section 281B of the Act have been issued on the same date i.e. on 24/7/2008 would not affect the validity of the provisional attachment, because, under section 132 of the Act it is not mandatory that the proceedings must be pending on the date of invoking section 281B of the Act. Provisional attachment can be levied even in cases where the proceedings are yet to be initiated.

Therefore, issuing 153A notice and invoking section 281B of the Act on the same day would not affect the validity of the order passed under section 281B of the Act on 24/7/2008.

23. Admittedly, the petitioner No.2 holds 97% shares of the petitioner No.1 company. During the course of investigation the petitioner No.2 admitted (see page 247 of the petition) that till September / October, 2003 he was holding 95% of the shares of Cyprus & U.K. based companies to whom the payments have been made by the petitioner No.1 as marketing and advertisement companies. Although, the petitioner No.2 claims to have divested his shareholding in those foreign companies and he is in no way connected with the said companies, in the absence of any explanation given as to the circumstances in which the said foreign companies have credited the amounts in the private bank

29. Strong reliance was placed by the Counsel for the revenue on the Board Circular dated 5-11-2004.

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    That    circular      was issued merely to safeguard                 against

    the    indiscriminate use of Section 281B of the Act.                         In

    the    facts of the present case, it cannot be said                        that




                                                                           
    invoking      Section 281B of the Act is        unreasonable             or