Kerala High Court
Assistant Commissioner Of Income Tax vs Muhammed Shameer on 27 January, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:5982
IN THE HIGH COURT OF KERALA AT ERNAKULAM
C. R.
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946
WA NO. 1413 OF 2024
AGAINST THE JUDGMENT DATED 13.08.2024 IN WP(C) NO.9607 OF
2024 OF HIGH COURT OF KERALA
-----
APPELLANTS/RESPONDENTS 1 TO 3:
1 ASSISTANT COMMISSIONER OF INCOME TAX,
AAYAKAR BHAVAN, NORTH BLOCK, NEW ANNEXE BUILDING,
MANANCHIRA, KOZHIKODE, PIN - 673001.
2 PRINCIPAL COMMISSIONER OF INCOME TAX (CENTRAL),
CENTRAL REVENUE BUILDING, IS PRESS ROAD, KOCHI,
PIN - 682018.
3 INCOME TAX DEPARTMENT,
REPRESENTED BY THE DEPUTY DIRECTOR OF -
INCOME TAX (INV) - II, 8TH FLOOR, AYAKAR BHAWAN,
KOZHIKODE, PIN - 673001.
BY ADVS.
NAVANEETH.N.NATH, CGC
SUSIE B VARGHESE
JOSE JOSEPH, SC, INCOME TAX DEPARTMENT, KERALA
RESPONDENTS/PETITIONERS/RESPONDENT 4,5,6:
1 MOHAMMED SALIH,
AGED 38 YEARS,
KARUVARAKKODE HOUSE, MUTHAMBALAM, MANIPURAM, KOZHIKODE,
PIN - 673572.
2025:KER:5982
WA NO. 1413 OF 2024 -2-
2 SHABEER ALI,
AGED 37 YEARS,
S/O.IBRAHIM, ARANGODE HOUSE, VAZHEPOYIL, MANIPURAM,
CALICUT, PIN - 673572.
3 MANAGER, CANARA BANK,
KODUVALLY BRANCH, KODUVALLY CALICUT, PIN - 673572.
4 SUB TREASURY OFFICER,
OFFICE OF THE SUB TREASURY OFFICER, NILAMBUR,
PIN - 679323.
5 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,,HIGH COURT OF KERALA,
PIN - 682031.
BY ADVS.
GOPIKRISHNAN NAMBIAR M
K.JOHN MATHAI
JOSON MANAVALAN
KURYAN THOMAS
PAULOSE C. ABRAHAM
RAJA KANNAN
THIS WRIT APPEAL HAVING COME UP FOR HEARING ON 27.01.2025,
ALONG WITH W.A. No.1435/2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
2025:KER:5982
IN THE HIGH COURT OF KERALA AT ERNAKULAM C. R.
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 27TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946
WA NO. 1435 OF 2024
AGAINST THE JUDGMENT DATED 13.08.2024 IN WP(C) NO.17460 OF
2024 OF HIGH COURT OF KERALA
-----
APPELLANTS/RESPONDENTS 1 TO 3:
1 ASSISTANT COMMISSIONER OF INCOME TAX,
AAYAKAR BHAVAN, NORTH BLOCK, NEW ANNEXE BUILDING,
MANANCHIRA, KOZHIKODE, PIN - 673001.
2 PRINCIPAL COMMISSIONER OF INCOME TAX (CENTRAL),
CENTRAL REVENUE BUILDING, IS PRESS ROAD, KOCHI,
PIN - 682018.
3 INCOME TAX DEPARTMENT,
REPRESENTED BY THE DEPUTY DIRECTOR OF -
INCOME TAX (INV) - II, 8TH FLOOR, AYAKAR BHAWAN,
KOZHIKODE, PIN - 673001.
BY ADVS.
NAVANEETH.N.NATH, CGC
SUSIE B VARGHESE
JOSE JOSEPH, SC, INCOME TAX DEPARTMENT, KERALA
RESPONDENTS/PETITIONERS/RESPONDENT 4 & 5:
1 MUHAMMED SHAMEER
AGED 32 YEARS
S/O.MAMMU, VATTOTH HOUSE, KALARANTHIRI, MANIPURAM P.O.,
VAVAD, KOZHIKODE, PIN - 673572.
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WA NO. 1435 OF 2024 -2-
2 SABEENA
AGED 50 YEARS,
W/O.AZEEZ, THEKKAYIL HOUSE, CHETHUKADAVU,
KUNNAMANGALAM, PERINGOLAM, KOZHIKODE, PIN - 673571.
3 MUHAMMED SUHAIB P.C,
AGED 31 YEARS,
S/O.ABDUL MAJEED, CHOLAKKARA HOUSE, PUTHUR, KOZHIKODE,
PIN - 673572.
4 MUHAMMED FAIQUE,
AGED 33 YEARS,
S/O.MUHAMMED BASHEER, PUZHANKARA HOUSE, KOZHIKODE,
PIN - 673572.
5 SUB TREASURY OFFICER,
OFFICE OF THE SUB TREASURY OFFICER, NILAMBUR,
PIN - 679323.
6 STATE OF KERALA,
REPRESENTED BY GOVERNMENT PLEADER,
HIGH COURT OF KERALA, PIN - 682031.
THIS WRIT APPEAL HAVING COME UP FOR HEARING ON 27.01.2025,
ALONG WITH W.A. No.1413/2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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SATHISH NINAN & C. R.
SHOBA ANNAMMA EAPEN, JJ.
= = = = = = = = = = = = = = = = = =
W.A. Nos.1413, 1435 of 2024
= = = = = = = = = = = = = = = = = =
Dated this the 27th day of January, 2025
J U D G M E N T
Sathish Ninan, J.
Is cash in a Bank account 'property' liable to
attachment under Section 281B of the Income Tax Act,
1961("the Act")? On the discussions in this judgment we
hold, 'Yes'.
2. On 12.04.2022, the police seized a huge amount
of cash (₹1,56,00,000/-) from a car in which respondents
1 and 2 in the writ appeal were riding. The seized
amount was produced before the Judicial First Class
Magistrate's Court.
3. On application by the Department under Section
132A of the Act, the Court directed release of the
amount to the Department. Respondents 1 and 2 herein and
others challenged the said order before this Court in
Crl.M.C. Nos.5605/2022 and 5591/2022. This Court as per
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order dated 21.12.2023, directed release of the cash to
them on furnishing a bond for the amount. The amount was
accordingly released.
4. Upon investigation and being satisfied that
there was no explanation for the cash nor was it
accounted, and after recording reason to believe that
income chargeable to tax has escaped assessment,
proceedings were initiated in relation to the same by
the issuance of notice under Section 148 of the Act.
5. Finding that the expected demand on assessment
including penalty would be a substantial amount
exceeding two crores, the payment of which the assessees
would evade, the competent authority of the Department,
ordered provisional attachment of the Bank accounts of
the assessees as per Exts.P7 and P8 orders of attachment
under Section 281B of the Act. The said orders were
challenged in the writ petition. The writ petition was
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allowed, against which the Department is in appeal.
6. We have heard Sri.A.R.L. Sundaresan, Additional
Solicitor General assisted by Sri.Navaneeth N. Nath,
Standing Counsel-IT, for the appellants and Sri.P.
Reghunathan, learned counsel for the respondents.
7. Allowing the writ petition and quashing the
provisional order of attachment, the learned Single
Judge held: -
(i) Bank account is not a 'property' under Section
281B, which could be subjected to provisional
attachment.
(ii) The interest of the revenue stood secured by
the security furnished before the Judicial First Class
Magistrate's Court.
(iii) The records do not reveal that the opinion of
the assessing officer and the approval granted by the
Principal Commissioner of Income Tax(PCIT) to order
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provisional attachment was on due application of mind.
8. Section 281B of the Act reads thus: -
"281B. (1) Where, during the pendency of any proceeding for the
assessment of any income or for the assessment or reassessment of any
income which has escaped assessment or for imposition of penalty under
section 271 AAD where the amount or aggregate of amounts of penalty
likely to be imposed under the said section exceeds two crore rupees, the
Assessing Officer is of the opinion that of the purpose of protecting the
interests of the revenue it is necessary so to do, he may, with the previous
approval of the Principal Chief Commissioner or Chief Commissioner,
Principal Commissioner or Commissioner, Principal Director General or
Director General or Principal Director or Director, by order in writing,
attach provisionally any property belonging to the assesee in the manner
provided in the Second Schedule.
(2) Every such provisional attachment shall cease to have effect after the
expiry of a period of six months from the date of the order made under
sub-section (1) :
Provided that the Principal Chief Commissioner or Chief Commissioner,
Principal Commissioner or Commissioner, Principal Director General or
Director General or Principal Director or Director may, for reasons to be
recorded in writing, extend the aforesaid period by such further period or
periods as he thinks fit, so, however, that the total period of extension shall
not in any case exceed two years or sixty days after the date of order of
assessment or reassessment, whichever is later.
(3) Where the assessee furnishes a guarantee from a scheduled bank for
an amount not less than the fair market value of the property provisionally
attached under sub-section (1), the Assessing Officer shall, by an order in
writing, revoke such attachment :
Provided that where the Assessing Officer is satisfied that a guarantee
from a scheduled bank for an amount lower than the fair market value of
the property is sufficient to protect the interests of the revenue, he may
accept such guarantee and revoke the attachment.
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(4) The Assessing Officer may, for the purposes of determining the value
of the property provisionally attached under sub-section (1), make a
reference to the Valuation Officer referred to in section 142A, who shall
estimate the fair market value of the property in the manner provided
under that section and submit a report of the estimate to the Assessing
Officer within a period of thirty days from the date of receipt of such
reference.
(5) An order revoking the provisional attachment under sub-section (3)
shall be made -
(i) within forty-five days from the date of receipt of the guarantee,
where a reference to the Valuation Officer has been made under
sub-section (4); or
(ii) within fifteen days from the date of receipt of guarantee in any
other case.
(6) Where a notice of demand specifying a sum payable is served upon the
assessee and the assessee fails to pay that sum within the time specified in
the notice of demand, the Assessing Officer may invoke the guarantee
furnished under sub-section (3), wholly or in part, to recover the amount.
(7) The Assessing Officer shall, in the interests of the revenue, invoke the
bank guarantee, if the assessee fails to renew the guarantee referred to in
sub-section (3), or fails to furnish a new guarantee from a scheduled bank
for an equal amount, fifteen days before the expiry of the guarantee
referred to in sub-section (3)
(8) The amount realised by invoking the guarantee referred to in sub-
section (3) shall be adjusted against the existing demand which is payable
by the assessee and the balance amount, if any, shall be deposited in the
Personal Deposit Account of the Principal Commissioner or
Commissioner in the branch of the Reserve Bank of India or the State
Bank of India or of its subsidiaries or any bank as may be appointed by
the Reserve Bank of India as its agent under the provisions of sub-section
(1) of section 45 of the Reserve Bank of India Act, 1934 (2 of 1934) at the
place where the office of the Principal Commissioner or Commissioner is
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situate.
(9) Where the Assessing Officer is satisfied that the guarantee referred to
in sub-section (3) is not required any more to protect the interests of the
revenue, he shall release that guarantee forthwith."
Relying upon sub-sections 3 and 4 of Section 281B, the
learned counsel Sri.P.Reghunathan would contend that, as
is evident therefrom, the term 'property' mentioned in
sub-section 1 can only relate to immovable property.
Sub-sections 3 and 4 provide for the assessment of the
market value of the property attached, by a Valuation
Officer. The assessee has an opportunity to furnish a
Bank guarantee for such value and get the attachment
released. The provision for assessment of fair market
value of the property and furnishing of Bank guarantee
to get release of attachment, is a sufficient indicator
that the term 'property' mentioned in sub-section (1) is
only, immovable property. At any rate, the term cannot
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encompass Bank deposits, it is argued. The arguments
found favour with the learned Single Judge.
9. 'Property' is a word of very wide connotation.
In Jilubhai Nanbhai Khachar and Ors. v. State of Gujarat and Ors. AIR
(1995 SC 142), the Apex Court held thus: -
"42. Property in legal sense means an aggregate of rights which
are guaranteed and protected by law. It extends to every species of
valuable right and interest, more particularly, ownership and exclusive
right to a thing, the right to dispose of the thing in every legal way, to
possess it, to use it and to exclude every one else from interfering with it.
The dominion or indefinite right of use or disposition which one may
lawfully exercise over particular things or subjects is called property. The
exclusive right of possessing, enjoying, and disposing of a thing is
property in legal parameters. Therefore, the word 'property' connotes
everything which is subject of ownership, corporeal or incorporeal,
tangible or intangible, visible or invisible, real or personal; everything
that has an exchangeable value or which goes to make up wealth or estate
or status. Property, therefore, within the constitutional protection, denotes
group of rights inhering citizen's relation to physical thing, as right to
possess, use and dispose of it in accordance with law. In Ramanatha
Aiyar's The Law Lexicon, Reprint Ed. 1987 at p. 1031 it is stated that the
property is the most comprehensive of all terms which can be used,
inasmuch as it is indicative and descriptive of every possible interest
which the party can have. The term property has a most extensive
signification, and, according to its legal definition, consists in free use,
enjoyment, and disposition by a person of all his acquisitions, without any
control or diminution, save only by the laws of the land, in Dwarkadas
Srinivas's case this Court gave extended meaning to the word property.
Mines, minerals and quarries are property attracting Article 300A."
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It is relevant to note that Section 281B(1) provides for
provisional attachment of "any property". The prefix
"any" to the word property has much significance. It
indicates that the word 'property' occurring therein, is
not to be comprehended in a restricted sense. Therefore,
"any property" mentioned in Section 281B(1) would take
within its sweep, money lying in Bank account also.
10. Section 281B(1) provides for provisional
attachment of any property belonging to the assessee in
the manner provided in the Second Schedule to the Act.
The Second Schedule to the Act is titled, "Procedure for
Recovery of Tax". It provides the mode for recovery of
Tax. Schedule-II clause 10 reads thus: -
"Property exempt from attachment.
10. (1) All such property as is by the Code of Civil Procedure, 1908 (5 of
1908) exempted from attachment and sale in execution of a decree of a
civil court shall be exempt from attachment and sale under this Schedule.
(2) The Tax Recovery officer's decision as to what property is so entitled
to exemption shall be conclusive."
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Evidently, except for the property exempted from
attachment under the Code of Civil Procedure, 1908(CPC),
other properties are liable to attachment. Section 60
CPC provides the property liable to attachment.
Noticeably, Section 60(1) CPC specifically states that
money is an attachable property. Properties which are
not liable to attachment have been specified in the
proviso to the section. Therefore, money in Bank account
is property liable to attachment.
11. There could be instances where the assessee
does not own immovable property sufficient enough to
secure the likely demand, but there are sufficient funds
in the bank account. The power for provisional
attachment is provided to protect the interest of the
revenue. There is no warrant to hold that money lying in
a Bank account is not liable to attachment.
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12. The mere fact that Bank account is not
explicitly provided under Section 281B of the Act,
unlike the GST Act, 2017 which specifically mentions the
same, cannot lead to the conclusion that Bank account is
not liable to be attached under Section 281 B of the
Act.
13. On the above discussions we hold that money in
Bank accounts is a property liable for provisional
attachment under Section 281B of the Act. We are unable
to concur with the finding of the learned Single Judge
to the contrary.
14. Now we proceed to consider whether the security
furnished before the Judicial First Class Magistrate's
Court could be considered as sufficient security for the
purposes of the Act. Section 451 of the Code of Criminal
Procedure, 1973 which corresponds to Section 497 of the
Bharathiya Nagarik Suraksha Samhitha, provides for
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interim release of property produced before any criminal
Court. The interim order for custody in terms thereof is
only regarding custody pending the conclusion of the
criminal proceeding. The scope and effect of an order
under Section 451 Cr.P.C was explained by the Apex Court
in V. Prakashan and K.P.Pankajakshan and Another (1985 CriLJ 951)
thus:
7................S. 451 enables the Magistrate to provide for interim
custody of such property pending conclusion of enquiry or trial. It is only
a temporary arrangement and what is contemplated is only an interim
provision to provide custody with a proper person as the Court thinks fit
with liability to produce the property back as and when directed by the
Court. The maximum duration of the arrangement is only till conclusion of
the enquiry or trial. It follows that the arrangement is only temporary and
the main object is to protect or preserve the property pending trial. Even if
the person entrusted with interim custody is the owner, his possession or
custody during the period of entrustment is only as representative of the
Court and not in his independent right. He is bound by the terms of
entrustment and the bond executed by him in favour of the Court. Any
failure to comply with the terms will entail the necessary consequences
also. His ownership or right to possession may not operate against his
obligation to the Court. The entrustment or custody will not invest him
with any preferential right to ownership or even possession. In the eye of
law his possession or custody is only that of Court.
8. The arrangement once made is not even final till the conclusion
of the inquiry or trial. Court is having the right to terminate the
entrustment, get back the property from him and entrust it to somebody
else whom the Court deems fit in appropriate cases even before the
conclusion of the inquiry or trial. So much so, the person entrusted with
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the property may also be entitled to seek termination of the entrustment
and surrender the property even before the conclusion of trial. Cases may
arise where the person to whom interim custody was ordered may not care
to undertake the obligation. In such cases the Court may have to make
other arrangements for custody pending trial. After giving custody the
Court may for reasons think that his custody may not be proper. In such
cases the Court can terminate the arrangement and make other
arrangements. Pending inquiry or trial more than one such arrangement
could be made. The order is only of an interlocutory nature.
9. Even in cases of rival claims for interim custody, the preference
made to one person does not settle any right to ownership or possession.
Irrespective of defeat in a contest for interim custody, the defeated party
can successfully enforce his claim for custody if ultimately he comes out
with flying colours. The ultimate consideration is only who is the proper
person considered by the Court for entrustment of the property. In doing
so, the Court may have considerations like safety of the property, the
possibility of getting it back without damage etc. The arrangement is
being made by the Court only for preservation of property for being
handed over to the person to whom custody has to be ordered under S. 452
after conclusion of trial or to be dealt with otherwise. ".
The mere fact that pursuant to the orders of this Court
in Crl.MC No.5605/2022, the Judicial First Class
Magistrate's Court released the money to the assessee on
furnishing security cannot have any significance in
relation to the proceeding of the Income Tax Department
under Section 281B of the Income Tax Act. Furnishing
security before the Magistrate's Court is to ensure
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compliance with production of the property on being
ordered. The security so furnished before the
Magistrate's Court in relation to the proceedings before
the Court cannot be construed as enuring to secure a
likely demand on assessment under Section 147 of the
Act. Section 226(4) of the Act authorises the Department
to apply to a Court in whose custody there is money
belonging to the assessee, to meet the tax due from the
assessee. However, at the stage when the criminal
proceedings have not culminated, it cannot be said that
the security furnished before the Magistrate's Court for
interim release of property is sufficient security.
Moreover, Section 226(4) would apply only when
assessment is completed. And even coming to the final
disposal of property under Section 452 Cr.P.C, there
could arise rival claims of tile, priority etc. Thus, we
are unable to concur with the learned Single Judge that
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the security furnished before the Magistrate's Court
sufficiently secures the possible demand by the
Department.
15. With regard to the opinion formed by the
assessing authority and the approval granted by PCIT for
provisional attachment, it is the contention that the
document does not reflect the formation of such opinion
on tangible material or information. The Apex Court in
Radha Krishnan Industries v. State of Himachal Pradesh [2021 (6) SCC 771],
while considering provisional attachment under the GST
Act, 2017, held that provisional attachment of Bank
account is draconian in nature and the conditions which
are prescribed by the statute for a valid exercise of
power must be strictly fulfilled. It was also held that
the formation of opinion to order provisional attachment
must be on the basis of tangible material that the
assessee is likely to defeat the demand, and that the
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provisional attachment is necessary to protect the
interest of the revenue. During the course of
arguments both sides submitted that the assessment
proceedings have since been completed. In terms of
Section 281B(2) and the proviso thereto, provisional
attachment could be in force for a period of only six
months from the date of order, which could be extended
for a further period of not exceeding sixty days after
the date of assessment or re-assessment. Assessment
having been completed, the life of the provisional
attachment is short. The learned counsel for the
assessee submits that an appeal has already been
preferred challenging the assessment. The Department
has, along with the memo dated 09.01.2025, placed on
record the proposal and the approval of the authorities
as required under Section 281B(1). It is seen that there
has been a detailed consideration by the authority while
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granting approval for provisional attachment. At any
rate, at this stage, when assessment has been completed
and even an appeal has been filed, we do not think that
the sufficiency or otherwise of the satisfaction arrived
at by the authority while provisional attachment was
ordered needs to be delved into.
16. For the reasons stated above, we are unable to
agree with the conclusions arrived at by the learned
single Judge.
17. Incidentally there arises a question as to what
could be the expanse of the property over which
attachment could be ordered. In Gandhi Trading v. Assistant
Commissioner of Income-Tax and others (1999 SCC Online 967) , a
Division Bench of Bombay High Court held that the power
of attachment under Section 281B of the Income Tax Act
is a drastic power to be exercised with extreme care and
caution, and that it should not be exercised as a tool
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to harass the assessee. It was also held that the
attachment should, as far as possible, be of immovable
properties, and that attachment of Bank accounts and
trading assets should be as a last resort. The Court
noticed the distinction between an attachment under
Section 281B of the Act and an attachment in the course
of recovery proceedings. The following observations in
the judgment are apposite.
"... One thing is clear that this power should be exercised by the Assessing
Officer only if there is a reasonable apprehension that the assessee may
thwart the ultimate collection of the demand that is likely to be raised on
completion of the assessment. The power of attachment under this section
is in the nature of attachment before judgment under the Code of Civil
Procedure. It is drastic power. It should, therefore, be exercised with
extreme care and caution. It should not be exercised unless there is
sufficient material on record to justify the satisfaction that the assessee is
about to dispose of the whole or any part of his property with a view to
thwart the ultimate collection of the demand. Moreover, attachment should
be made of the properties and to the extent it is required to achieve the
above object. It should neither be used as a tool to harass the assessee nor
should it be used in a manner which may have an irreversible detrimental
effect on the business of the assessee. Attachment should be made as far as
possible of immovable properties if that can protect the Revenue.
Attachment of bank accounts and trading assets should be resorted to only
as a last resort. In any event, attachment under section 281B should not be
equated with attachment in the course of recovery proceedings."
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18. As Section 281B(1) stipulates, to consider
whether a provisional order of attachment is to be
issued, the assessing officer must be satisfied that the
possible demand and penalty would exceed Rupees Two
Crores. Therefore, evidently, the authorities need to
form an opinion with regard to the probable demand,
which of course could not be stated with exactitude at
that stage. However, the extent of the property
attached, including attachment of the money in the Bank
accounts, should be commensurate with the probable
demand including the penalty. The proviso to Section
281B(3) indicates that the security required need only
be to the extent sufficient to protect the interest of
the revenue. Therefore, orders of provisional attachment
under Section 281B should be commensurate with the
probable demand including penalty, and should not be
blanket orders attaching properties, the value of which
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would be much higher than the probable demand.
Resultantly, the writ appeals are allowed. The
judgments impugned are set aside and the writ petitions
will stand dismissed. No costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
kns/-
//True Copy//
P.S. To Judge
