M/S. Raghunandan Enterprise v. Assistant Commissioner Of Income Tax, Central Circle -4 , Surat

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 1321 of 2022 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE J.B.PARDIWALA and HONOURABLE MS. JUSTICE NISHA M. THAKORE ========================================================== 1Whether Reporters of Local Papers may be allowedYESto see the judgment ?to see the judgment ?2To be referred to the Reporter or not ?YES3Whether their Lordships wish to see the fair copyNOof the judgment ?3Whether their Lordships wish to see the fair copyNOof the judgment ?4Whether this case involves a substantial questionNOof law as to the interpretation of the Constitutionof India or any order made thereunder ?of law as to the interpretation of the Constitutionof India or any order made thereunder ? ========================================================== M/S. RAGHUNANDAN ENTERPRISE VersusASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE -4 ,SURAT ==========================================================Appearance:MR B S SOPARKAR(6851) for the Petitioner(s) No. 1MRS KALPANAK RAVAL(1046) for the Respondent(s) No. 1NOTICE SERVED BY DS for the Respondent(s) No. 2 ========================================================== CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALAand HONOURABLE MS. JUSTICE NISHA M. THAKORE Date : 07/02/2022 ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1.By this writ-application under Article 226 of the Constitutionof India, the writ-applicant – a Partnership Firm and assessee has prayed for the following reliefs:- 7(A) Quash and set aside the impugned order dated 29.05.2021at Annexure-‘A’ to this petition so far as attachment over inrespect fo land admeasuring 11981 sq.mtr. Land situated at BlockNo.142, New Block No.166, T.P. 22, F.P.53, Village Valak,Taluka Kamrej, District Surat; (B) Quash and set aside the amendment. Record made in theVillage Form Number 7 at Annexure ‘B’ in relation to landadmeasuring 11981 sq.mtr. Land situated at Block No.142, NewBlock No.166, T.P. 22, F.P.53, Village Valak, Taluka Kamrej,District Surat consequence to the order at Annexure- ‘A’ dated29.05.2021. (C) Pending the admission, hearing and final disposal of thispetition, to stay operation of the order at Annexure - ‘A’ to thispetition to the limited extent to attachment over landadmeasuring 11981 sq.mtr. Land situtated at Block No.142, NewBlock No.166, T.P. 22, F.P.53, Village Valak, Taluka Kamrej,District Surat as well as to stay the operation of amendment inVillage Form Number 7 dated 29.05.2021 (Annexure B); (D) Any other and further relief deemed just and proper begranted in the interest of justice; (E) To provide for the cost of this petition. 2.The facts giving rise to this writ-application may besummarized as under:- 2.1The writ-applicant is a Partnership Firm. It came to beconstituted on 20.11.2014 and got duly registered with the Registrarof Firms on 26.11.2014. 2.2It appears from the materials on record that a search andseizure was undertaken under Section-132 of the Act at thepremises of one Arnav Mukeshbhai Savaliya (searched person). Inthe course of the search, many documents were seized. One statement also came to be recorded of Mr. Savaliya. Savaliya in hisstatement said something about a parcel of land bearing BlockNo.142, New Block No.166, T.P.-22, F.P.-53, admeasuring 11981sq.mtrs. situated at the Village Valak, Taluka Kamrej, District Surat.The statement of Mr. Savaliya if to be understood correctly is thatwith respect to the Block No.142, his son Arnav Savaliya paidRs.1,50,00,000/- [Rupees One Crore Fifty Lakh Only] in cash toNitaben Shaileshbhai Radadiya one of the Partners of the writ-applicant – Partnership Firm and thereby, got 2.5% share in theprofit assigned in his favour. statement also came to be recorded of Mr. Savaliya. Savaliya in hisstatement said something about a parcel of land bearing BlockNo.142, New Block No.166, T.P.-22, F.P.-53, admeasuring 11981sq.mtrs. situated at the Village Valak, Taluka Kamrej, District Surat.The statement of Mr. Savaliya if to be understood correctly is thatwith respect to the Block No.142, his son Arnav Savaliya paidRs.1,50,00,000/- [Rupees One Crore Fifty Lakh Only] in cash toNitaben Shaileshbhai Radadiya one of the Partners of the writ-applicant – Partnership Firm and thereby, got 2.5% share in theprofit assigned in his favour. 2.3The Department thought fit to pass an order of provisionalattachment of various properties of Arnav Savaliya under Section-281B of the Act. 2.4The impugned order of provisional attachment reads thus:- GOVERNMENT OF INDIAMINISTRY OF FINANCE INCOME TAX DEPARTMENTOFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAXCENTRAL CIRCLE 4, SURAT To,ARNAV MUKESHBHAI SAVALIYA95, Mahendra Park Society,B/s. Suzuki Showroom, Puna Kumbhariya Road,Surat, Surat 395010, GujaratIndia. Sir/ Madam/ M/s.Subject: Proceedings under section 281B – Order for provisionalattachment. Order under section 281B of the I.T. Act, 1961 A search action U/s.132 of the I.T. Act, 1961 was carried outin the cases of Shree Kuberji Group of Surat on 06/07/08.02.2020. Inconsequence of the same scrutiny proceedings u/s.153A of I.T. Act areunder progress in the cases of the Shri Arnav Savaliya. As there wasvoluminous incriminating documents and evidences revealing instancesof tax evasion, warrant u/s.132 of the I.T. Act, 1961 was issued by thePr. DIT(Inv.), Surat in the case of the assessee on 05/02/2020 at 95,Mahendra Park Society, Besides Suzuki Showroom, Puna KhambhariaRoad, Surat. 2.Further, during the course of search proceedings in the case ofShri Arnav Savaliya u/s.132 of the I.T. Act conducted in the premisesof 95, Mahendra Park Society, Besides Suzuki Showroom, PunaKhambharia Road, Surat various incriminating documents were foundand seized having implication of large amount of unaccounted incomeduring the financial year 2013-14 to 2019-20 relevant to AY 2020-21. 3.In view of the seized material found during the course ofsearch conducted u/s.132 in the premises of the assessee whichbelonged to Shri Arnav Savaliya, there is a likelihood of huge demandbeing raised in the case of the above assessee on the basis ofinvestigations/enquires being conducted during the course of assessmentproceedings. The assessment proceedings u/s.153A for Assessment Year2014-15 to 2019-20 is in progress. Accordingly, I am of the opinionthat for the purpose of protecting the interest of Revenue it isnecessary to attach provisionally the properties belonging to theassessee u/s.281B of the I.T. Act, 1961. Hence, following properties arerequired to be provisionally attached with immediate effect:- IMMOVABLE PROPERTIES ATTACHED All rights and interest of assessee Shri Arnav Savaliya in followingproperties: As per the provisions of Section-281B of the I.T. Act, 1961,assessee Shri Arnav Savaliya is hereby prohibited from transferring orcharging the said properties in any way directly or indirectly, untilfurther order of the undersigned. Further, all persons are prohibitedfrom taking any benefit under such transfer or create any charge in thesaid property without written prior approval from undersigned. This order is passed with the approval of the Pr. Commissionerof Income Tax (Central), Surat vide letter No.SRT/PR, CIT (Central))/281B/ Shree Kuberji & Ambaji Gr/2021-22, dated 22.04.2021. Sd/-DEVANGI BHARATAN MARTHAKCENTRAL CIRCLE 4, SURAT IMMOVABLE PROPERTIES ATTACHED All rights and interest of assessee Shri Arnav Savaliya in followingproperties: As per the provisions of Section-281B of the I.T. Act, 1961,assessee Shri Arnav Savaliya is hereby prohibited from transferring orcharging the said properties in any way directly or indirectly, untilfurther order of the undersigned. Further, all persons are prohibitedfrom taking any benefit under such transfer or create any charge in thesaid property without written prior approval from undersigned. This order is passed with the approval of the Pr. Commissionerof Income Tax (Central), Surat vide letter No.SRT/PR, CIT (Central))/281B/ Shree Kuberji & Ambaji Gr/2021-22, dated 22.04.2021. Sd/-DEVANGI BHARATAN MARTHAKCENTRAL CIRCLE 4, SURAT 2.5The second last property in the above table is Block No.142.This land bearing Block No.142 is of the ownership of writ-applicant – Partnership Firm. There is no dispute in this regard.However, it appears that alongwith the personal properties of ArnavSavalaiya, the Block No.142 owned by the writ-applicant – Firmalso came to be included and provisionally attached on the ground that Arnav Savaliya paid the cash consideration referred to aboveand thereby, derived 2.5% share in the profit from NitabenRadadiya i.e. one of the partners of the writ-applicant – Firm. 3.Being dissatisfied with the aforesaid action on the part of thedepartment, the writ-applicant is here before this Court with thepresent writ-application. SUBMISSIONS ON BEHALF OF THE WRIT-APPLICANT:- 4.Mr. S.N. Soparkar, the learned senior counsel assisted by Mr.Bandish Soparkar appearing for the writ-applicant vehementlysubmitted that the impugned order of provisional attachment inexercise of powers under Section-281B of the Act to the extent ofBlock No.142, New Block No.166, T.P.-22, F.P.-53, is erroneous inlaw and without jurisdiction. The argument of the learned seniorcounsel proceeds on the footing that under Section-281B what canbe attached is the property of the assessee. The assessee in thepresent case is Arnav Savaliya. It is argued that Nitaben Radadiyaas one of the partners of the writ-applicant – Firm might haveassigned her 2.5% share in the profit of the firm in favour of ArnavSavaliya, but that does not mean that the block No.142, which isotherwise an asset owned by the Partnership Firm would becomeone of the properties of the assessee, and the same can be attachedunder Section-281B of the Act. 5.Mr. Soparkar to make good his aforesaid submission, firstinvited our attention to Section-29 of the Partnership Act, 1932.Section-29 of the Partnership Act reads thus:- “29. Rights of transferee or a partner’s interest.— (1) A transfer by a partner of his interest in the firm, eitherabsolute or by mortgage, or by the creation by him of a changeon such interest, does not entitle the transferee, during thecontinuance of the firm, to interfere in the conduct of thebusiness, or to require accounts, or to inspect the books of thefirm, but entitles the transferee only to receive the share ofprofits of the transferring partner, and the transferee shall acceptthe account of profits agreed to by the partners. (2) If the firm is dissolved or if the transferring partner ceases tobe a partner, the transferee is entitled as against the remainingpartners to receive the share of the assets of the firm to whichthe transferring partner is entitled, and, for the purpose ofascertaining that share, to an account as from the date of thedissolution.” (2) If the firm is dissolved or if the transferring partner ceases tobe a partner, the transferee is entitled as against the remainingpartners to receive the share of the assets of the firm to whichthe transferring partner is entitled, and, for the purpose ofascertaining that share, to an account as from the date of thedissolution.” 6.Mr. Soparkar would submit that what Section-29 referred toabove speaks of is a transfer by a partner of his/her interest in thefirm and not a transfer by a partner of his/her interest in anyparticular property or assets of the firm. The assignee of a share inPartnership is only entitled to receive the share of the profits, towhich, the assignee partner would otherwise be entitled and theassignee must accept the account of profits agreed to by thepartners. In the case of a dissolution, the assignee is entitled toreceive the share of partnership assets, to which, the assigneepartner is entitled and for purpose of ascertaining that share, to anaccount as from the date of the dissolution. 7.Mr. Soparkar also placed reliance on a decision of theSupreme Court in the case of Addanki Narayanappa & Anr. vsBhaskara Krishtappa And 13 Ors. reported in AIR 1966 SC 1300. Hesubmitted that the partnership property will vest in all partners.During the subsistence of the partnership, no partner can deal withany portion of the property as his/her own. Nor can be assigned his/her interest in a specific item to anyone. 8.Mr. Soparkar, thereafter, invited the attention of this Court tothe provisions of Order 21 Rule 49 of the Code of Civil Procedure.Order 21 Rule 49 reads thus:- "Order 21 Rule 49: Attachment of partnership property:– (1) Save as otherwise provided by this rule, property belongingto a partnership shall not be attached or sold in execution of adecree other than a decree passed against the firm or against thepartners in the firm as such. (2) The Court may, on the application of the holder of a decreeagainst a partner, make an order charging the interest of suchpartner in the partnership property and profits with payments ofthe amount due under the decree and may, by the same or asubsequent order, appoint a receiver of the share of such partnerin the profits (whether already declared or accruing) and of anyother money which may be coming to him in respect of thepartnership, and direct accounts and inquiries and make an orderfor the sale of such interest or other orders as might have beendirected or made if a charge had been made in favour of thedecree-holder by such partner, or as the circumstances of thecase may require.” 9.Order 21 Rule 49 is analogous to the principle of Section-29of the Partnership Act referred to above. 10.Our attention was, thereafter, drawn to Section-281B of theAct, which reads thus:- 281B. Provisional attachment to protect revenue in certaincases.:– (1) Where, during the pendency of any proceeding forthe assessment of any income or for the assessment orreassessment of any income which has escaped assessment, the[Assessing] Officer is of the opinion that for the purpose ofprotecting the interests of the revenue it is necessary so to do,he may, with the previous approval of the [Chief Commissioner,Commissioner, Director General or Director], by order in writing,attach provisionally any property belonging to the assessee in the manner provided in the Second Schedule. 10.Our attention was, thereafter, drawn to Section-281B of theAct, which reads thus:- 281B. Provisional attachment to protect revenue in certaincases.:– (1) Where, during the pendency of any proceeding forthe assessment of any income or for the assessment orreassessment of any income which has escaped assessment, the[Assessing] Officer is of the opinion that for the purpose ofprotecting the interests of the revenue it is necessary so to do,he may, with the previous approval of the [Chief Commissioner,Commissioner, Director General or Director], by order in writing,attach provisionally any property belonging to the assessee in the manner provided in the Second Schedule. 11.Mr. Soparkar also invited the attention of this Court to adecision of the Supreme Court in the case of Commissioner ofIncome Tax Vs. Sunil J. Kinariwala reported in (2003) 1 SCC 660,wherein, the Supreme Court drew a fine distinction between a casewhere a partner of a firm assigns his/her share in favour of a thirdperson and a case where a partner constitutes a sub-partnershipwith his share in the main partnership. While drawing the finedistinction between the two, the Supreme Court explained thatwhereas in the former case, in view of Section 29(1) of the IndianPartnership Act, the assignee gets no right or interest in the mainpartnership except to receive that part of the profits of the firmreferable to the assignment and to the assets in the event ofdissolution of the firm. In the latter case, the sub-partnershipacquires a special interest in the main partnership. Mr. Soparkarvehemently submitted that the case on hand is not one, wherein,Nitaben as one of the partners of the writ-applicant – Firm couldbe said to have created a sub-partnership with her share. In viewof Section 29(1) of the Partnership Act, Arnav Savaliya as anassignee at the most becomes entitled to receive the assigned sharein the profits from the firm. Arnav Savaliya would not be entitledto receive the assigned share in the profits as a sub-partner becauseno sub-partnership came into existence, but as an assignee he maybe entitled to the share of profit of the assigner-partner i.e. NitabenRadadiya. 12. Mr. Soparkar would submit that the theory of assignment isalso that of the department, however, for the time being even if it is assumed that Nitaben assigned her share to the extent of 2.5% inthe profit, the department could not have proceeded toprovisionally attach the Block No.142 as this land is the asset of theownership of the writ-applicant – firm. 13.Mr. Soparkar also invited our attention to Rule-32 of theSchedule-2 – Procedure of Recovery of Tax. Rule 32 reads thus:- 32. Attachment of partnership property:– (1) Where the propertyto be attached consists of an interest of the defaulter, being apartner, in the partnership property, the Tax Recovery Officermay make an order charging the share of such partner in thepartnership property and profits with payment of the amount dueunder the certificate, and may, by the same or subsequent order,appoint a receiver of the share of such partner in the profits,whether already declared or accruing and of any other moneywhich may become due to him in respect of the partnership, anddirect accounts and enquiries and make an order for the sale ofsuch interest or such other order as the circumstances of the casemay require. (2) The other persons shall be at liberty at any time to redeemthe interest charged or, in the case of a sale being directed, topurchase the same.” 14.In such circumstances referred to above, Mr. Soparkar praysthat there being merit in his writ-application, the same be allowedand the impugned order of provisional attachment to the extent itincludes the Block No.142 i.e. the land owned by the writ-applicant– Partnership Firm be quashed set aside. (2) The other persons shall be at liberty at any time to redeemthe interest charged or, in the case of a sale being directed, topurchase the same.” 14.In such circumstances referred to above, Mr. Soparkar praysthat there being merit in his writ-application, the same be allowedand the impugned order of provisional attachment to the extent itincludes the Block No.142 i.e. the land owned by the writ-applicant– Partnership Firm be quashed set aside. 15.On the other-hand, this writ-application has been vehementlyopposed by Ms. Kalpana Raval, the learned senior standing counselappearing for the revenue. Ms. Raval would submit that no errornot to speak of any error of law could be said to have beencommitted by the Department in passing the impugned order of provisional attachment. She would submit that the very object ofprovisional attachment as envisaged under section-281B of the Actis to protect the interest of the revenue. Ms. Raval laid muchemphasis on the statement that came to be recorded during thesearch, as referred to above. The entire focus is on the fact thatwhen the Block No.142 came to be purchased by the writ-applicant– Firm vide document no.6362, dated 09.04.2015 for a total sale-consideration of Rs.10,48,34,000/-, an amount of Rs.1,50,00,000/-[Rupees One Crore Fifty Lakh Only] in cash was paid by ArnavSavaliya. This is how Arnav Savaliya contributed in the purchase ofBlock No.142. If there is such a huge contribution at the end ofArnav Savaliya, then how does Savaliya expect to protect hisinterest. It is in such circumstances that Nitaben as one of thepartners of the writ-applicant – Firm is said to have assigned 2.5%of her share in the profit in favour of Arnav Savaliya. According toMs. Raval in such a scenario, it could be said that Arnav Savaliyahas a share in Block No.142. 16.Ms. Raval invited the attention of this Court to few avermentsmade in the affidavit-in-reply filed on behalf of the revenue. Wequote the relevant averments as contained in the reply. “4.Before entering into a parawise response to the petitionof the petitioners, the respondents seek leave to raise apreliminary objection with respect to the maintainability of thepetition. The petitioner submits that there is a statutoryalternative remedy available to the petitioner, which isefficacious. The petitioner seeks from this Hon'ble Court, inexercise of writ jurisdiction, an examination of the issue on facts,which exercise the petitioner cannot seek, in the humblesubmission of the answering respondent. 5.With respect to contentions raised in Para 1, it is submitted that upon verification, the said land although waspurchased in the name of the firm i.e.M/s RaghunandanEnterprise vide registered deed no.6362 on 09.04.2015, Smt.Nitaben Shaileshbhai Radadiya, wife of the Shri ShaileshHasmukhbhai Radadiya, is one of the partners of the firm. It isnoticed from the partnership deed that, Shri Shaileshbhai H.Radadiya retired from the firm and Smt. Nitaben ShaileshbhaiRadadiya was admitted as a partner in the firm on 14.08.2018having share of 5% in the firm. It is seen that the wife wasawarded the same position as her husband in the firm. Further,it is seen that Shri Arnav M Savaliya has purchased 2.5% shareunofficially (on money or cash money) out of 5% share ofNitaben Shailesh Radadiya with an investment ofRs.1,50,00,000/-. During the course of Search proceedings thestatement of Shri Mukesh N. Savaliya (father of Shri Arnav M.Savaliya) was recorded on oath u/s.132(4) of the Income Tax Act,1961, in which Shri Mukesh N. Savaliya has confronted the samewith the incriminating document. The relevant part of the sameis as under: In the view of the above, the property situated atB.No.142, New Block No.166, T.P.22, F.No.53, Valak, wasprovisionallyattachedvidethisofficeorderno.ITBA/COM/F/1/2021-22/1033162496(1) dated 29.05.2021 forthe purpose of the protecting the interest of Revenue. In the view of the above, the property situated atB.No.142, New Block No.166, T.P.22, F.No.53, Valak, wasprovisionallyattachedvidethisofficeorderno.ITBA/COM/F/1/2021-22/1033162496(1) dated 29.05.2021 forthe purpose of the protecting the interest of Revenue. As evident from the above statement Rs.1,50,00,000/- incash was paid to acquire 2.5% share in the impugned land. Itwould appear prima facie, based on evidence available that theon-money component involve in the entire land is ofRs.60,00,00,000/- which should have been contributed either bythe firm or by the partners at the time of purchase of land.Accordingly, the incriminating materials seized along withrelevant statement was forwarded to the jurisdictional Assessing Officers of the petitioner dated 17.12.2021 and the concernedAssessing Officer has initiated the proceedings by issuing noticeu/s.153C of the I.T. Act. 6.With respect to contentions raised in Para 2.1, it issubmitted that the same are formal & factual in nature hence notresponded to at present. The respondent however seeks leave torespond to the same subsequently if found necessary. 7.With respect to contentions raised in Para 2.2, it issubmitted that the Shri Shailesh Harjibhai Radadiya, retired fromthe partnership firm on 14.08.2018 and Smt. NitabenShaileshbhai Radadiya entered on 14.08.2018 having 5% share.Smt. Nitaben Shaileshbhai Radadiya is wife of Shri ShaileshHarjibhia Radadiya. 8.With respect to contentions raised in Para 2.3, it issubmitted that as per explanation in Para 1, it is clearly seenthat Shri Arnav M Savaliya has purchased unofficially 2.5% shareout of 5% share of impugned land from Shri Shailesh HarjibhaiRadadiya by paying huge on-money. The on-money payments inrelation to land investment shall never become part of theregister document/deed. Accordingly, the on-money profit on saleof such land shall also be out of regular books of account anddocument too. The accounting and share of profit in relation toon-money, are done through MOU, Saudachitthi, SamadhanKarar. In this impugned land also the same was done throughunregistered document (Sauda Chitthi) signed by the parties. Thecontention of the petitioner deserves no merit when it comes todealing in on-money transaction for purchase of land. 9.With respect to contentions raised in Para 2.4, it issubmitted that as per section 132(9B) of the I.T. Act, 1961, “[(9B) Where, during the course of the search or seizure orwithin a period of sixty days from the date on which the lastof the authorizations for search was executed, the authorisedofficer, for reasons to be recorded in writing, is satisfied thatfor the purpose of protecting the interest of revenue, it isnecessary so to do, he may with the previous approval of thePrincipal Director General or Director General or the PrincipalDirector or Director, by order in writing, attach provisionallyany property belonging to the assessee, and for the saidpurposes, the provisions of the Second Schedule shall, mutatismutandis, apply.” For the impugned land, the first provisional attachment was done by ITO(Investigation), Surat dated 21.08.2020 after getting dueapproval from Pr. DIT(Investigation), Surat and during the courseof assessment proceedings, the office of respondent has passedthe order u/s.281B on 29.05.2021 & again extended vide thisoffice order dated 02.11.2021 in accordance with law. For the impugned land, the first provisional attachment was done by ITO(Investigation), Surat dated 21.08.2020 after getting dueapproval from Pr. DIT(Investigation), Surat and during the courseof assessment proceedings, the office of respondent has passedthe order u/s.281B on 29.05.2021 & again extended vide thisoffice order dated 02.11.2021 in accordance with law. 10.With respect to contentions raised in Para 2.5 and 2.6, itis submitted that the petitioner was required to file his requestletter to lift provisional attachment to the office of Pr.Commissioner of Income-tax (Central), Surat since as per section281B of the I.T. Act, he is the appropriate authority to grantapproval for provisionally attaching the property to protect therevenue. Further, the attachment u/s 281B is provisional innature and it automatically expired after 60 days fromcompletion of assessment proceedings and in the case of ShriArnav Savaliya, the assessment will be completed before 31[st]March, 2022. Further, the investigation/assessment for on-moneyinvolved with the impugned is under process and it involvesfurther more parties. Therefore, the application of petitionerdated 21.09.2021 and 07.12.2021 could not be disposed off. 11.With respect to contentions raised in Para 2.7 and 2.8, itis submitted that the assessment proceedings in the case of ShriArnav Savaliya are going on and will be completed within duecourse, Thereafter decision on merits can be taken aftercompletion of his assessment proceedings. In the context of above it is stated that attachment isprovisional and to protect the interest of revenue. Decision couldbe taken immediately after completion of assessment proceedingsin the case of Shri Arnav Savaliya. Since, the attachmentu/s.281B is provisional in nature and it automatically expiredafter 60 days from completion of assessment proceedings and inthe case of Shri Arnav Savaliya, the assessment will be completedon or before 31[st] March, 2022. 12.With respect to contentions raised in Para 3.1, it issubmitted that, as per the incriminating document seized duringthe course of search u/s.132 of the I.T. Act in the case of ShriArnav Mukeshbhai Savaliya, the 2.5% share of the impugnedland was sold by receiving huge on-money by Shri ShaileshHarjibhai Radadiya (husband of Smt. Nitaben ShaileshbhaiRadadiya). It is pertinent to mention here that the on-moneypayments in relation to land investment don’t become part of theregister document/deed. Similarly, the on-money profit on sale ofsuch land shall also be out of regular books of account and document too. The accounting and share of profit in relation toon-money, are generally done through MOU, Saudachitthi,Samadhan Karar. In this impugned land also the same was donethrough unregistered document signed by the parties. Thecontention of the petitioner deserves no merit when it comes todealing in on-money transaction for purchase of land. Theimpugned land was transferred over and above the registeredvalue and involves on-money payments also. The contention ofpetitioner that Shri Arnav Mukeshbhai Savaliya is neither thepartner in partnership firm nor he hold any share/interest in thepetitioner firm at any point of time, is out of context when itcomes dealing in on-money, which is generally outside of booksof accounts/registered document/deed. 13.With respect to contentions raised in Para 3.2 & 3.3, it issubmitted that there is no dispute on the fact that Shri ArnavMukeshbhai Savaliya is not an official partner in the petitionerfirm as per registered deed of firm. The basis of provisionalattachment under section 281B is to protect revenue as theincriminating evidence reveals involvement of on-money for 2.5%share in the impugned land and the same was confirmed by ShriMukesh Savaliya through statement on oath u/s.132(4) of the I.T.Act also. 13.With respect to contentions raised in Para 3.2 & 3.3, it issubmitted that there is no dispute on the fact that Shri ArnavMukeshbhai Savaliya is not an official partner in the petitionerfirm as per registered deed of firm. The basis of provisionalattachment under section 281B is to protect revenue as theincriminating evidence reveals involvement of on-money for 2.5%share in the impugned land and the same was confirmed by ShriMukesh Savaliya through statement on oath u/s.132(4) of the I.T.Act also. 14.With respect to contentions raised in Para 3.4, it issubmitted that as per the Provisional Attachment order u/s.281Bof the I.T. Act dated 29.05.2021, the provisional attachment forthe impugned land was done only to the extent of 2.5% (forwhich incriminating seized document reveals payment of on-money by Shri Arnav Savaliya). The contention of the petitionerbears no merit. 15.With respect to contentions raised in Para 3.5, it issubmitted that the basis of provisional attachment under section281B of the I.T.Act is to protect the interest of revenue and thesame was done on the basis seizure of incriminating material andstatement of related party on oath for on-money payment relatedto 2.5% share in impugned land. It has been done legally on thebasis of incriminating materials. 16.With respect to contentions raised in Para 4, it issubmitted that the petitioner should have approached higherauthority with regard to revocation of Provisional Attachmentu/s.281B of the I.T. Act, rather than doing the same, thepetitioner filed the Writ Petition before Hon’ble High Court foran examination of the issues on facts. Further, the attachment u/s.281B is provisional in nature and it automatically expiredafter 60 days from completion of assessment proceedings and inthe case of Shri Arnav Savaliya, the assessment will be completedbefore 31[st] March, 2022. 17.Ms. Raval further submitted that assuming for the momentthat the action or the order passed by the revenue is not inaccordance with law or without jurisdiction, still this Court maydecline to exercise its extra-ordinary jurisdiction under Article 226of the Constitution of India, more particularly, when it comes toprotecting the interest of the revenue. Ms. Raval would submit thatthe necessary evidence as regards the understanding between theparties may surface during the course of the assessmentproceedings. That may make the picture more clear. No prejudicewould be caused to the writ-applicant – Firm, if till the finalassessment is framed, the Block No.142 remains provisionallyattached. 18.Ms. Raval also invited the attention of this Court to Sub-section (3) of Section 281B of the Act, which reads thus:- 281B. Provisional attachment to protect revenue in certaincases.:– (3) Where the assessee furnishes a guarantee from a scheduledbank for an amount not less than the fair market value of theproperty provisionally attached under sub-section (1), theAssessing Officer shall, by an order in writing, revoke suchattachment: Provided that where the Assessing Officer is satisfied that aguarantee from a scheduled bank for an amount lower than thefair market value of the property is sufficient to protect theinterests of the revenue, he may accept such guarantee andrevoke the attachment. the Act, Ms. Raval would submit that if any tangible security isfurnished at this stage by the writ-applicant – Firm to protect theinterest of the revenue, there should not be any difficulty inreleasing the subject land from provisional attachment. 20.In such circumstances referred to above, Ms. Raval, thelearned senior standing counsel appearing for the revenue prays thatthere being no merit in the writ-application, the same may berejected. Provided that where the Assessing Officer is satisfied that aguarantee from a scheduled bank for an amount lower than thefair market value of the property is sufficient to protect theinterests of the revenue, he may accept such guarantee andrevoke the attachment. the Act, Ms. Raval would submit that if any tangible security isfurnished at this stage by the writ-applicant – Firm to protect theinterest of the revenue, there should not be any difficulty inreleasing the subject land from provisional attachment. 20.In such circumstances referred to above, Ms. Raval, thelearned senior standing counsel appearing for the revenue prays thatthere being no merit in the writ-application, the same may berejected. 21.Having heard the learned counsel appearing for the partiesand having gone through the materials on record, the only questionthat falls for our consideration is whether the revenue could haveproceeded to attach the subject property in the form of land, whichindisputably is of the ownership of the writ-applicant – PartnershipFirm. 22.The plain reading of Section-281B of the Act would make itclear that the same provides for the provisional attachment of theproperty belonging to the assessee for a period of six months fromthe date of such attachment unless extended, but excluding theperiod of stay of the assessment proceedings, if any. Under Sub-section (1) of Section 281B of the Act thus, where during thependency of any proceedings for assessment or reassessment, if theAssessing Officer is of the opinion that for the purposes ofprotecting the interest of Revenue, it is necessary so to do, he maywith the previous approval of the higher authority pass an order inwriting provisionally attaching the property belonging to theassessee. These are drastic powers permitting the Assessing Officer to attach any property of an assessee even before the completion ofassessment or reassessment. These powers are thus in the nature ofattachment before judgment. They have provisional applicability andin terms of sub-section (2) of section 281B of the Act, a limitedlife. Such powers must, therefore, be exercised in appropriate casesfor proper reasons. Such powers cannot be exercised merely byrepeating the phraseology used in the section and recording theopinion of the officer passing such order that he was satisfied forthe purpose of protecting the interest of Revenue, it was necessaryso to do. 23.The assessee in the case on hand is Arnav Savaliya. Theprovisional attachment is of the property, which belongs to thewrit-applicant – Partnership Firm. The plain language of theprovision of Section-281B is plain and simple. It provides for theattachment of the property of the assessee only and of no one-else.The golden rule of interpretation of the statutes is that the statutehas to be construed according to its plain, literal and grammaticalmeaning, unless it leads to absurdity. The subject land i.e. BlockNo.142 not being the property of the assessee as such, was notopen to provisional attachment. Even if we go by the case of therevenue that there is some interest of Savaliya involved in the landin question, the same will not make the subject land of theownership of the assessee i.e. Arnav Savaliya. 24.We once-again remind ourselves of the fine distinction drawnby the Supreme Court in the case of Sunil J. Kinariwala (Supra)between a case where a partner of a firm assigns his/her share infavour of a third person and a case where a partner constitutes a sub-partnership with his/her share in the main partnership. Thecase on hand indisputably is not one of a sub-partnership though inview of Section-29(1) of the Partnership Act, Arnav Savaliya as anassignee may become entitled to receive the assigned share in theprofits from the writ-applicant – Firm, not as a sub-partner becauseno sub-partnership came into existence, but as an assignee to theshare of profit of the assigner-partner viz. Nitaben ShaileshbhaiRadadiya. 24.We once-again remind ourselves of the fine distinction drawnby the Supreme Court in the case of Sunil J. Kinariwala (Supra)between a case where a partner of a firm assigns his/her share infavour of a third person and a case where a partner constitutes a sub-partnership with his/her share in the main partnership. Thecase on hand indisputably is not one of a sub-partnership though inview of Section-29(1) of the Partnership Act, Arnav Savaliya as anassignee may become entitled to receive the assigned share in theprofits from the writ-applicant – Firm, not as a sub-partner becauseno sub-partnership came into existence, but as an assignee to theshare of profit of the assigner-partner viz. Nitaben ShaileshbhaiRadadiya. 25.In the overall view of the matter, we are convinced that theprovisional attachment of the subject land under Section-281B ofthe Act at the instance of the revenue is not sustainable in law. 26.For all the forgoing reasons, this writ-application succeedsand is hereby allowed. The impugned order of provisionalattachment dated 29.05.2021 to the extent it includes the subjectland i.e.Block No.142, New Block No.166, T.P.-22, F.P.-53,admeasuring 11981 sq.mtrs. situated at Village Valak, TalukaKamrej, District Surat, is hereby quashed and set aside. Rest of the order of provisional attachment of all theproperties owned by Arnav Savaliya is not touched. If on the basis of the provisional attachment order, anyentries have been mutated in the revenue records, the same shallnow also stand corrected. (J. B. PARDIWALA, J) A. B. VAGHELA (NISHA M. THAKORE,J)