JAGDISH SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) THIS writ petition has been filed by the petitioner claiming the following reliefs:- (i) quash the impugned attachment order dated 17. 04. 2007 (Annexure-11) and further direct the respondents to release all the 3 FDRs of Rs. 1,00,00,000/- lying with Jaipur Thar Gramin Bank, at Bhankrota, Distt. Jaipur; and (ii) direct the respondents to exclude the period during which the FDRs of the petitioner remained attached in computing the period of two years as prescribed in section 54b of the Act for the purchase of agricultural land; and (iii) quash and set-aside the impugned order dated 01. 05. 2007 (Annexure-12) followed by order dated 16. 05. 2007 (Annexure-13) passed by the respondent No. 3 & 2; and kindly direct the respondent No. 3 to keep the recovery proceedings in abeyance till the disposal of Ist appeal pending before the Commissioner of Income Tax (Appeals)-III, Jaipur; and (iv) The costs of the writ petition may also be awarded to meet the ends of justice. (v) Any other order/relief as your Lordships may deem fit and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner, in the interest of justice, equity and good conscience.

(3.) SECTION 54-B of the Act and SECTION 281-B of the Act are reproduced hereunder for ready reference :- " [capital gain on transfer of land used for agricultural purposes not to be charged in certain cases. 54b. [ (1)] [subject to the provisions of sub-section (2), where the capital gain arises] from the transfer of a capital asset being land which, in the two years immediately preceding the date on which the transfer took place, was being used by the assessee or a parent of his for agricultural purposes [ (hereinafter referred to as the original asset)], and the assessee has, within a period of two years after that date, purchased any other land for being used for agricultural purposes, then, instead of the capital gain being charged to income-tax as income of the previous year in which the transfer took place, it shall be dealt with in accordance with the following provisions of this section, that is to say,- (i) if the amount of the capital gain is greater than the cost of the land so purchased (hereinafter referred to as the new asset), the difference between the amount of the capital gain and the cost of the new asset shall be charged under section 45 as the income of the previous year; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase, the cost shall be nil; or (ii) if the amount of the capital gain is equal to or less than the cost of the new asset, the capital gain shall not be charged under section 45; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase, the cost shall be reduced, by the amount of the capital gain. ] [ (2) The amount of the capital gain which is not utilised by the assessee for the purchase of the new asset before the date of furnishing the return of income under SECTION 139, shall be deposited by him before furnishing such return [such deposit being made in any case not later than the due date applicable in the case of the assessee for furnishing the return of income under sub-section (1) of section 139] in an account in any such bank or institution as may be specified in, and utilised in accordance with, any scheme which the Central Government may, by notification in the Official Gazette, frame in this behalf and such return shall be accompanied by proof of such deposit; and, for the purposes of sub-section (1), the amount, if any, already utilised by the assessee for the purchase of the new asset together with the amount so deposited shall be deemed to be the cost of the new asset: Provided that if the amount deposited under this sub- section is not utilised wholly or partly for the purchase of the new asset within the period specified in sub-section (1), then,- (i) the amount not so utilised shall be charged under section 45 as the income of the previous year in which the period of two years from the date of the transfer of the original asset expires; and (ii) the assessee shall be entitled to withdraw such amount in accordance with the scheme aforesaid. " " [provisional attachment to protect revenue in certain cases. 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, the [assessing] Officer is of the opinion that for the purpose of protecting 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. [explanation.- For the purposes of this subsection, proceedings under sub-section (5) of section 132 shall be deemed to be proceedings for the assessment of any income or for the assessment or reassessment of any income which has escaped assessment. ] (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 [chief Commissioner, Commissioner, Director General 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: [provided further that where an application for settlement under section 245c is made, the period commencing from the date on which such application is made and ending with the date on which an order under sub-section (1) of section 245d is made shall be excluded from the period specified in the preceding proviso. ]