Page 30 - Bullion World Volume 4 Issue 9 September 2024

P. 30

5. In the event of non-adherence to these instructions of these components of the statute are integral to
by the authorities, certain remedial provisions have been a valid exercise of power. In other words, when the
incorporated in the statutes so as to provide a remedy exercise of the power is challenged, the validity of
to such people whose accounts have been frozen by its exercise will depend on a strict and punctilious
authorities. Persons aggrieved by such orders can observance of the statutory pre-conditions by the
either avail the remedy of appeal before the appropriate Commissioner.
authority or invoke the writ jurisdiction of constitutional
courts, or can apply for provisional release of goods/ • Hon’ble High Court of Bombay in the case of
properties, as the case may be. Chokshi Arvind Jewellers Versus Union of India
held that where proper officer had not passed any
6. Jurisprudence on the subject has also developed order in writing recording opinion of proper officer
with various authoritative pronouncements by Supreme before provisionally attaching bank accounts of
Courts & High Courts wherein courts have on several Petitioner gold bullion trader, provisional attachment
occasions interpreted provisions to maintain checks and of its bank account was illegal and contrary to
balances and to curtail the indiscriminate use of these provisions of Section 110 (5) of Customs Act,
powers by the state. 1962 - Provisional attachment of Bank Accounts
is quite drastic or coercive in nature attracting civil
• Hon’ble Supreme Court in the case of Radha consequences; therefore, each of ingredients of
Krishan Industries Versus State of Himachal Section 110 (5) of Customs Act, 1962 must be
Pradesh has observed that it becomes necessary strictly complied with before provisional attachment
to emphasize that before the Commissioner can on property of an assessee can be levied; further,
levy a provisional attachment, there must be a order directing provisional attachment should be
formation of “the opinion” and that it is necessary served in writing not only on bank but also on bank
“so to do” for the purpose of protecting the interest account holder.
of the Government revenue. The power to levy a
provisional attachment is draconian in nature. By the 7. As has been correctly observed by the courts, the
exercise of the power, a property belonging to the power to freeze bank accounts is draconian in nature
taxable person may be attached, including a bank because it is in essence a pre-adjudicatory punishment.
account – An attachment which is contemplated Although there is a time limit for which an account can
in Section 83 is, in other words, at a stage which is be attached/ frozen, it is undue harassment nonetheless
anterior to the finalization of an assessment or the because freezing of bank accounts creates impediments
raising of a demand. Conscious as the Legislature not only in smooth functioning of a business but also
was of the draconian nature of the power and the in the livelihood of many who are associated with that
serious consequences which emanate from the business. Now, the time is ripe for the authorities to
attachment of any property including a bank account formulate internal code of conducts and restrictions.
of the taxable person, it conditioned the exercise of Similarly law makers ought to amend these provisions
the power by employing specific statutory language and censor such sweeping powers and fix accountability
which conditions the exercise of the power. so that, more businesses do not suffer merely because
an officer was “of the opinion” or “had a reason to
• The language of the statute indicates first, the believe” on a misplaced facts.
necessity of the formation of opinion by the
Commissioner; second, the formation of opinion
before ordering a provisional attachment; third the
existence of opinion that it is necessary so to do
for the purpose of protecting the interest of the
government revenue; fourth, the issuance of an
order in writing for the attachment of any property
of the taxable person; and fifth, the observance by
the Commissioner of the provisions contained in the
rules in regard to the manner of attachment. Each

30
30

25 26 27 28 29 30 31 32 33 34 35