JUDGMENT Dr.D.P. CHOUDHURY, J. - Challenge has been made to the illegal action of the opposite parties provisionally attaching the bank accounts and fixed deposits of the petitioner under Section 281B of the Income Tax Act, 1961 (hereinafter called “The Act”). FACTS 2. The unshorn details of the case of the petitioner is that petitioner is the sole proprietor of his Firm operating in the name of M/s. National Enterprises having its head office at Barbil, in the district of Keonjhar. Petitioner has been carrying on business of mining of iron and manganese ore since more than thirty five years since 1980. It is stated that petitioner has been regularly filing returns of income with the Income Tax Department (hereinafter called “IT Department”) having Permanent Account Number. He has been filing the return for six years right from 2009-2010 till 2014-2015. Petitioner asserted that he has been maintaining the proper cash books, ledgers, purchase and sales registers. For maintaining bank accounts petitioner has private banks such as HDFC Bank, ICICI Bank and Axis Bank. It is alleged, inter alia, that suddenly the opposite parties made search and seizure operation on 19.2.2015 of the business and residential premises of the petitioner under Section 132 of the Act. During search operation the opposite parties found cash of Rs. 13,13,800/- in the premises. In course of search operation prohibitory orders under Section 132(3) of the Act were issued in respect of all the bank accounts and fixed deposits of the petitioner and s such all bank accounts and fixed deposits were frozen. Being satisfied with the nature of the accounts the prohibitory orders were lifted by the I.T. Department on 9.3.2015 and 7.7.2015. However, petitioner by voluntarily disclosing the additional taxable income of Rs. 30,02,98,416/- and paid the tax of Rs. 10,20,71,432/- on 25.5.2015 with HDFC Bank Limited by way of advance tax. 3. It is stated that during course of search and seizure under Section 132 of the Act, the assessment proceeding under Section 153A of the Act for the assessment years 2009-2010 to 2014-2015 were initiated by the opposite party No. 1 vide notice dated 10.8.2015 and it was served on 12.8.2015. the petitioner was asked to prepare and file true and correct return of the total income for the assessment years 2009-2010 to 2014-2015 within fifteen days of receipt of notice. the petitioner was asked to prepare and file true and correct return of the total income for the assessment years 2009-2010 to 2014-2015 within fifteen days of receipt of notice. While the petitioner was granted fifteen days time from 12.8.2015 to file the return, opposite party No. 1 illegally and arbitrarily attached provisionally all the bank accounts and fixed deposits of petitioner in exercise of power conferred under Section 281B of the Act vide impugned order dated 12.8.2015. Accordingly, order was issued to the banks and such order remained in force for six months. 4. It is stated that on 17.8.2015,18.8.2015 and 19.8.2015 the petitioner filed representations with the opposite parties stating that no incriminating material or document has been seized at the time of search and seizure and petitioner has never defaulted for payment of any tax nor there is any outstanding demand against him. Petitioner also made submission before opposite party No. 1 that due to provisional attachment, his business has been affected as he is not able to pay salaries of the employees and labourers and other sundry expenditures. He requested opposite party No. 1 to lift the provisional attachment. But opposite party No. 1 instead of granting any relief suggested for entire balance available in the attached bank accounts should be transferred to fixed deposit account so that the fixed deposit accounts can be issued with fresh attachment. On 20.8.2015 two accounts of the petitioner were released from the attachment but the provisional attachment continued over eleven bank accounts and nineteen fixed deposits of the petitioner which reflect an aggregate balance of Rs. 75,19,79,248/-. The petitioner appraised opposite party No. 1 about the annual expenditure of his office as Rs. 120 crores and requested to remove the attachment so as to ensure flow of business transactions. After hearing, opposite party No. 1 asked the petitioner to submit the details of the immovable properties and current market value of the like amount for enabling lifting of attachment on the Bank accounts having equivalent value. It is stated that due to attachment of the bank accounts the petitioner is not able to run the business by not able to pay the salary of the employees and labourers, electricity charges, security charges and other expenditures. Besides the petitioner is not liable to pay the outstanding dues including statutory dues. It is stated that due to attachment of the bank accounts the petitioner is not able to run the business by not able to pay the salary of the employees and labourers, electricity charges, security charges and other expenditures. Besides the petitioner is not liable to pay the outstanding dues including statutory dues. Due to such attachment petitioner is unable to pay the statutory taxes. Hence, the petition is filed to quash the provisional attachment passed on 12.8.2015 on the ground that the action of the opposite party N. 1 is illegal and not supported by principle of law. 5. Opposite parties filed the counter stating that on 19.2.2015 the business in the residential premises of the petitioner were searched by the opposite parties and lot of incriminating documents were seized by the Department and the statement of the petitioner was recorded under Section 132 (4) of the Act. In addition to search and seizure, the assessment proceeding under Section 153A of the Act was initiated for the assessment year 2009-2010 to 2014-2015. On 10.8.2015 the Deputy Director of Income Tax (Investigation intimated that there is concealment of income of Rs. 400 crores by the petitioner. As the total tax demand along with interest would be more than Rs. 150 crores which is almost fifteen times of Rs.10,20,71,432/-, i.e., the tax paid by the assessee subsequent to notice under Section 132(4) of the Act, the opposite party No. 1 felt that the petitioner may default the final collection of demand for which the proposal under Section 281B was made to the Principal Commissioner of Income Tax, Visakhapatnam and accordingly provisional attachment order was issued. 6. On 17.08.2015 on the representation made by the petitioner, the provisional attachment was lifted to withdraw the amount of Rs. 10 crores. On 1.9.2015 the assessee was requested to intimate its statutory liabilities and business exigencies and at the same time was requested to inform about their assets such as immovable property etc. so as to facilitate the Department to release the bank accounts from the attachment. 7. It is stated by opposite parties that as no reply was received to the letter dated 1.9.2015 of the Department, a notice under Section 153-A of the Act was issued to file return of income but the petitioner did not file the return. so as to facilitate the Department to release the bank accounts from the attachment. 7. It is stated by opposite parties that as no reply was received to the letter dated 1.9.2015 of the Department, a notice under Section 153-A of the Act was issued to file return of income but the petitioner did not file the return. In order to protect the interest of the revenue after assessment proceeding was initiated the opposite parties justifiably initiated action under Section 281B of the Act. So, it is submitted that there is no illegality in passing the order of provisional attachment under Section 281B. It is a fact that on the request of the petitioner two bank accounts of the petitioner having cash balance of Rs. 10 crores was released on 20.8.2015. On examination of the seized books of accounts and in view of the findings of the investigation Rs. 150 crores is likely to be raised as demand in the case. So, by applying the judicial mind, the proposal was made by the Assessing Officer to attach the bank accounts on initiating action under Section 281B of the Act. 8. It is further averred by the opposite parties that as the two banks accounts having cash balance of Rs. 10 crores was released and the assets of Rs. 128/- crores were provisionally attached, keeping in mind of the disputed amount of Rs. 150 crores demand the petitioner was asked to submit the details of immovable properties. But the petitioner did not comply the letter dated 1.9.2015 for which the provisional attachment under Section 281 B was invoked to protect the interest of the revenue during the assessment proceeding. As there was doubt that assessment may default the ultimate collection of the demand likely to be raised on assessment, the provisional attachment order was passed. In accordance with the Instruction No. 8/2004 of the CBDT dated 2.9.2009 the Assessing Officer has taken steps by invoking the provision under Section 281B of the Act. It is stated that the petitioner has not filed the return in spite of notice under Section 153A of the Act. So, it is prayed to dismiss the writ petition. SUBMISSIONS 9. Mr. It is stated that the petitioner has not filed the return in spite of notice under Section 153A of the Act. So, it is prayed to dismiss the writ petition. SUBMISSIONS 9. Mr. H.Sinha, learned counsel for the petitioner submitted that the power under Section 281B of the Act has been exercised by the opposite parties arbitrarily and in callous and arbitrary manner inasmuch as the provisional attachment of assets on the basis of anticipated liability is justified only when there are reasons to form an opinion that the assessee would defeat the collection of legitimate tax dues by transferring its assets. Since the opposite party No. 1 has not determined the estimated tax liability of the petitioner and proceeded with a blanket attachment of all bank accounts, such order is erroneous and illegal. He referred to the judgment of Hon’ble Bombay High Court in Gandhi Trading v. ACIT [(1999) 239 ITR 337 Bom] where power to attach an assessee’s assets just be exercised with extreme care and caution and it should be made only to the extent it is required to realize the collection of tax demand. 10. Learned counsel for the petitioner also submitted that in Raghuram Grah Pvt. Ltd. V. Income Tax Officer [ (2006) 281 ITR 147 All], the Hon’ble Allahabad High Court held that only so much asset or amount which would satisfy the future demand should be provisionally attached under Section 281B of the Act, leaving other assets to enable the assessee to carry on the business. He also submitted that according to Central Board of Direct Taxes (CBDT) Circular No. 404/22/2004 ITCC dated 5.11.2004 the provisions of Section 281B of the Act should not be indiscriminately used and power has to be resorted to only in cases where there is a reasonable likelihood of the recovery becoming difficult due to inadequacy of assets of the assessee. According to him such circular is binding on all officers in view of the decisions of the Hon’ble Apex Court in Navnit Lal C. Javeri v. K.K. Sen [ (1965) 56 ITR 198 (SC)] and in Ellerman Lines Ltd. v. CIT [ (1971) 82 ITR 913 (SC)]. 11. According to him such circular is binding on all officers in view of the decisions of the Hon’ble Apex Court in Navnit Lal C. Javeri v. K.K. Sen [ (1965) 56 ITR 198 (SC)] and in Ellerman Lines Ltd. v. CIT [ (1971) 82 ITR 913 (SC)]. 11. It is also submitted by the learned counsel for the petitioner that in Gaurav Goel v. CIT [(2000) 24 ITR 169 (Cal)] the Hon’ble Court held that in absence of any material or circumstances on the basis of which requisite opinion could be formed under Section 281B and in absence of any history of past defaults of the petitioner, the provisional attachment under Section 281B was wholly illegal and unwarranted. Relying on such decision, learned counsel for the petitioner submitted that opposite party No. 1 has passed the mechanical order without application of mind. 12. It is submitted by the learned counsel for the petitioner that in VLS Finance Ltd. v. CIT [ (2000) 246 ITR 707 ], the Hon’ble Delhi High Court observed in the following manner:- “For its operation two factors are necessary to be noted. Firstly, the existence of opinion of the assessing officer that for the purpose of protecting the interest of revenue, it is necessary to provisionally attach any property belonging to the assessed in the manner provided in the Second Schedule. Secondly, previous approval of the Chief Commissioner or the Commissioner, as the case may, by an order in writing.” Relying upon such decision he submitted that opinion of the Assessing Officer for warranting the provision under Section 281B is an essential ingredient. According to him the ‘opinion’ as interpreted by the Hon’ble Apex Court in Dolagobinda Paricha v. Nimai Charan Misra ( AIR 1959 SC 914 ) means judgment or belief, that is, a belief or a conviction resulting from what one thinks of a particular question. Since the opinion as incorporated by the Hon’ble Apex Court has not been formed by the Assessing Officer in this case, the provisional order of attachment under Section 281B is illegal and invalid. 13. Learned counsel for the petitioner further submitted that under CPC, the attachment of property before judgment can be effected under Section 94(b) read with Order 38 Rule 5 CPC and Hon’ble Apex Court in Raman Tech. & Process Engg. Co. & Anr. 13. Learned counsel for the petitioner further submitted that under CPC, the attachment of property before judgment can be effected under Section 94(b) read with Order 38 Rule 5 CPC and Hon’ble Apex Court in Raman Tech. & Process Engg. Co. & Anr. v. Solanki Traders [ 2008(2) SCC 302 ] held in the following manner:- “It is well-settled that merely having a just or valid claim or a prima facie case, will not entitle the plaintiff to an order of attachment before judgment, unless he also establishes that the defendant is attempting to remove or dispose of his assets with the intention of defeating the decree that may be passed. Equally well settled is the position that even where the defendant is removing or disposing his assets, an attachment before judgment will not be issued if the plaintiff is not able to satisfy that he has a prima facie case… The power under Order 38 Rule 5 CPC is drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule.” So, applying the aforesaid ratio, the order of attachment is illegal as no opinion has been formed about the chance of non-recovery of the tax demand. It submitted by the learned counsel for the petitioner that since the provisional order of attachment has been effected illegally and arbitrarily by the opposite parties, there is hardship for the petitioner to carry on the business and as such the constitutional guarantee of the fundamental right to carry on trade or business as enshrined under Article 19 (1)(g) of the Constitution has been seriously violated. Learned counsel for the petitioner further submitted that the extension of the period of attachment more than six months is illegal as there is no material to show that extension is accorded by the opposite parties on relevant material. It is, therefore, prayed to quash the attachment proceeding vide Annexure-7 series. 14. Mr. S.K. Acharya, learned Senior Standing Counsel for the Department submitted that the contention of the learned counsel for the petitioner is misconceived and unwarranted. He submitted that the Department has taken action according to provisions of the Act because the petitioner has suppressed the income and filed the return much less to the actual income. 14. Mr. S.K. Acharya, learned Senior Standing Counsel for the Department submitted that the contention of the learned counsel for the petitioner is misconceived and unwarranted. He submitted that the Department has taken action according to provisions of the Act because the petitioner has suppressed the income and filed the return much less to the actual income. He submitted that the petitioner has a large scale of production and sale of iron ore and diversion of funds. Petitioner has made Rs. 30 crore per year of cash diversion in on bogus heads like plantation, hutment and other particulars. It is also stated that petitioner has claimed the payment made to the labourers but the finger print of only four persons are found against 251 persons claimed to have been engaged. The petitioner being the assessee has also siphoned off 37 crores and there is concealment of income to the extent of Rs. 400 crore. He also cited the Instruction No. 8/2004 where CBDT has issued following instruction:- “It shall be the responsibility of all Assessing Officers to follow the above procedure. If any demand becomes irrecoverable due to the failure of the Assessing Officer to follow these guidelines, he shall be held accountable for the loss caused to the Government, regardless of his subsequent posting. “ According to above circular, the Assessing Officer has taken step under Section 281B of the Act to safeguard the interest of the revenue. He also placed the file of the Assessing Officer and stated that the Assessing Officer has submitted to the Principal Commissioner of Income Tax about the proposal for provisional attachment and after due satisfaction by the superior authority, the provisional attachment was issued under Section 281B of the Act. 15. It is submitted by the learned Senior Standing Counsel for the Income Tax Department that Rs. 10 crore being in the two bank accounts of the petitioner were released to pay the tax as per the return filed by the petitioner from 2009-2010 to 2014-2015. But since he has got lot of concealed income, the assessment under Section 153A of the Act was initiated and instruction was issued to the petitioner to disclose the immovable properties so as to enable the Department to release other bank accounts of the petitioner. But since he has got lot of concealed income, the assessment under Section 153A of the Act was initiated and instruction was issued to the petitioner to disclose the immovable properties so as to enable the Department to release other bank accounts of the petitioner. The Department has taken action according to the necessary provisions of law and in no way right of the petitioner has been affected. According to him the petitioner has not responded to the letter dated 1.9.2015 to submit the list of the properties and as such the provisional attachment was required to be extended beyond six months. Learned Assessing Officer has again applied the Principal Commissioner of Income Tax and after obtaining approval has extended the provisional attachment for further six months. 16. Mr. Acharya, learned Senior Standing Counsel in reply to the submission of the learned counsel for the petitioner that no opinion of the Assessing Officer has been formed, stated that the impugned order itself is self-explanatory and the opinion is about the interest of the revenue and nothing else more. He submitted that the circular issued by CBDT in November 5, 2004 has been well followed by the Assessing Officer in this case and in no way the action of the Department is faulted with. So, supporting the action of the Department he submitted to reject the writ petition. 17. Points for consideration:- (i) The main point for consideration whether in the facts and circumstances of the case of the provisional attachment under Section 281B of the Act is legal and valid. DISCUSSIONS POINT NO. (i): 18. It is admitted fact that the petitioner is the sole proprietor of the proprietorship firm in the name of M/s. National Enterprises has been carrying on business of mining of iron and manganese ore since 1980. It is not in dispute that he is an assessee and filed the returns from 2009-2010 to 2014-2015 and has got several bank accounts. It is admitted fact that the opposite parties provisionally attached all the bank accounts including fixed deposit of the petitioner under Section 281B of the Act vide Annexure-7 series. 19. Learned counsel for the petitioner vehemently argued that Section 281B of the Act may be compared with the provisions under Order 38 Rule 5 CPC because the attachment before judgment under the latter provision can be only invoked in compelling and extraordinary circumstances. 19. Learned counsel for the petitioner vehemently argued that Section 281B of the Act may be compared with the provisions under Order 38 Rule 5 CPC because the attachment before judgment under the latter provision can be only invoked in compelling and extraordinary circumstances. He also cited the decision of the Hon’ble Apex Court in Raman Tech. & Process Engg. Co. & Anr. V. Solanki Traders [ 2008 (2) SCC 302 ] (supra). With no disagreement with the proposition of law as enunciated by the Hon’ble Apex Court so far power under Order 38 Rule 5 is concerned. It is true that the power under Order 38 Rule 5 is really the extraordinary power under the CPC and condition precedents to exercise such power are (1) Defendant is attempting to remove or dispose of his assets(2) intention of the defendant was to defeat the decree that may be passed; and (3) that plaintiff has to show a prima facie case. So, only after satisfying the Court about these there preconditions, the order of attachment before judgment can be passed. 20. But Section 281B of the Income Tax Act speaks in the following manner:- “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 1[Principal Chief Commissioner or] Chief Commissioner, 1[Principal Commissioner or] Commissioner, 1[Principal Director General or] Director General or 1[Principal Director or] Director, by order in writing, attach provisionally any property belonging to the assessee in the manner provided in the Second Schedule. Explanation. Explanation. (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 3[Principal Chief Commissioner or] chief Commissioner, 3[Principal Commissioner or] Commissioner 3[ Principal Director General or ] Director General or 3[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 4 [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. (4) The Assessing Officer may, for the purpose 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. (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 anew 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 realized 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 provision 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 situate. (9) Where the Assessing Officer is satisfied that the guarantee referred to in sub-Section (3) is not required anymore to protect the interests of the revenue, he shall release that guarantee forthwith Explanation. –For the purposes of this Section, the expression “scheduled Bank” shall mean a bank included in the Second Schedule to the Reserve Bank of India Act, 1934 (2 of 1934)” 21. The aforesaid provision made it clear that the provisional attachment can be issued where (1) the proceeding of assessment is pending; or (2) that assessment or reassessment of any income which is escaped assessment. (3) the opinion of the Assessing Officer must have been formulated as to protecting the interest of the revenue. After satisfying all these conditions with the approval of superior authority, the Assessing Officer can issue order of provisional attachment of any property belonging to the assessee in the manner provided in the Second Schedule. (3) the opinion of the Assessing Officer must have been formulated as to protecting the interest of the revenue. After satisfying all these conditions with the approval of superior authority, the Assessing Officer can issue order of provisional attachment of any property belonging to the assessee in the manner provided in the Second Schedule. By comparing those two provisions, it appears that Section 281B is the power enshrined under the special Act whereas attachment before judgment under Order 38 Rule 5 is available under common law. It is no more res integra that the provisions maintained in Special Act will override the common law. 22. Moreover, on comparison of both the provisions it appears that the Order 38 Rule 5 will be pressed into service if defendant is about to dispose of the property in question and remove the same from the local limits of jurisdiction to defeat the execution of the decree. But here under Income Tax Act the provisional attachment is only to be made available where opinion of the Assessing Officer has been formed that protection of interest of the revenue is necessary and the prior approval of the superior authority has been obtained. Thus, the argument advanced by the learned counsel for the petitioner that the provisions of Order 38 Rule 5 also should be read while applying the provisions of Section 281B is not untenable. 23. Learned Senior Standing Counsel for the Revenue submitted that there are provisions under Section 222 of the Act also to issue attachment of the property besides the power lies with the authority under Section 281B to attach the property and both the provisions have got only the goal to protect the interest of the Revenue. 23. Learned Senior Standing Counsel for the Revenue submitted that there are provisions under Section 222 of the Act also to issue attachment of the property besides the power lies with the authority under Section 281B to attach the property and both the provisions have got only the goal to protect the interest of the Revenue. Learned Counsel for the petitioner submitted that the provision under Section 222 is different from the provisions of Section 281B because in the case of application of Section 222 of the Act there must have been assessment and the assessee is in default or deemed to be in default in making the payment of tax where the tax recovery officer will issue a certificate and to proceed to recover the same as per rules prescribed in Second Schedule with regard to the attachment and sale of assesse’s movable property and immovable property, the arrest of the assessee and his detention in prison and appointment of receiver for management of the assesse’s moveable and immovable property. Under Section 226 of the Act there are other modes of recovery besides the modes of recovery as mentioned in Section 222 of the Act. After going through the said two provisions it appears that Section 281B relates to provisional attachment of property belonging to assessee and it does not speak about any other mode of recovery and such attachment should be also in consonance with the manner provided in the Second Schedule of the Act. So, there are distinction between the application of Section 222 and 226 of the Act and applicability of Section 281B of the Act. 24. The present case is solely confined to Section 281B of the Act and accordingly we have to make dicotomy of the case by analyzing same with proper perspective. In order to visualize the factual aspect, we have called for the entire assessment file to find out whether the contention of the learned counsel for the petitioner is true to the extent that no opinion as required under Section 281B has been formed by the Assessing Officer and the Assessing Officer has conducted in such manner that it detriments to the interest of the assessee. It is also contended on behalf of the petitioner that no income has been determined for assessment to apply the provision under Section 281B. 25. It is also contended on behalf of the petitioner that no income has been determined for assessment to apply the provision under Section 281B. 25. It is profitable to place the necessary noting of the concerned Assessing Officer from the file. It appears from the noting dated 10.8.2015 that that Assessing Officer got a letter from the Deputy Director of Income Tax (Investigation) wherein the search and seizure under Section 132 of the Act was conducted and DDIT has mentioned that the concealment of income of assessee of about Rs. 400 crore. So, the Assessing Officer issued notice under Section 153A of the Act to the assessee giving fifteen days time to furnish the returns but he does not indicate in the note sheet that notice has been issued. However, on 12.8.2015 the following noting was made in the file: “12.8.2015 The matter was discussed with the DDIT (Inv.), BBSR and after going through the seized records, the contention of the DDIT was found to be substantial at this stage. In this case it was found that although the rate of GP in the mining business is amount 65%, the GP of the assessee is in the range of 30 to 35%. This has been done by way of gross inflation of expenses. Page 30 to 32 of seized document NEO-05 is the P/L A/c at M/s. National Enterprises for the period of 01.04.2014 to 15.02.2015. As per this A/c the profit of the assessee is 90 cr. against a Turnover of Rs. 140 cr. This justifies the fact of high margin and corresponding inflation of expenses. During the course of search, audited Balance Sheets of various years were found. The Balance Sheets had huge figures of sundry creditors, expenses payable provisions for expenses and unsecured loan amounting to around 89 crore. No breakup of the same were found in the B/S as required. No Ledger A/c of parties were available. Even no unpaid bills were found during the course of search. It was found that from September 2006 to January, 2013, the raising work was done by M/s. Pratyusha Resources and Infra Pvt. Ltd. As the aspects of mining might from drilling, blasting to stacking are done by them. The sales of iron ore are ex-mines. M/s Pratyusha Resources denied of having any outstanding. The other raising contractor M/s S.S. Raisers Pvt. Ltd bad an outstanding of only Rs. The sales of iron ore are ex-mines. M/s Pratyusha Resources denied of having any outstanding. The other raising contractor M/s S.S. Raisers Pvt. Ltd bad an outstanding of only Rs. 28,336/- as on 31.03.14. So an outstanding amount or Rs. 89 Crore seem not genuine. Similarly it was found that amount of around Rs. 208 crore has been claimed under various heads of expenses during the period of 2008-09 to 2013-14. A chart of the same is kept in the folder. Statements that were recorded by the Investigation Wing substantial the fact that these are inflated expenses. Besides this labour sheets that were sent to Finger print bureau confirmed the fact that signatures were forged. In the similar manner of inflation of expenses, it was found that during the period of F.Y. 2008-09 to 2013-14, assessee had diverted funds to his three sons, amounting to Rs. 30 crore. A chart of the same is kept in the folder. On comparison of two seized documents i.e. page-17 of NEO-27 and page 24 of NEO-04 (copies kept in the folder), it was found that there is a huge difference in the A/c s of Gerwal Associates pvt. Ltd. As per page-17 of NEO, which is a ledger A/c of National Enterprise in the books of GAPL, there is an amount outstanding of Rs. 68, 99,46,348/-. Whereas as per the audit report of the assessee, sundry debtors amount is Rs. 1,20,00,736/-. Accordingly there is a unexplained sundry debtors of Rs. 64 crore. Further it was found that, assessee has not disclosed following investments that were detected during the course of search. (i) Catriona Apartment Gurgaon Rs. 8.36 Cr. (ii) Logix Group Rs. 1.97 Cr. (iii) Uppal Housing Ltd Rs. 25.5 Cr. (iv) Ambience Pvt. Ltd. Rs. 2.936 Cr. Further it is noticed that the “A” was served with a notice by the Justice M.B. Shah Commission of Enquiry for recovery of cost of excess production amounting to Rs. 544.33 Cr. And Rs. 339. 74 Cr. In respect of two mines. Although, assessee has voluntarily disclosed an amount of Rs. 30,02,98,416/- and has paid advance tax on it, the likely concealment will be more than Rs. 400 Cr. As per page 42 of NEO-04 the value of fixed Asset is around 14.6 Cr. 544.33 Cr. And Rs. 339. 74 Cr. In respect of two mines. Although, assessee has voluntarily disclosed an amount of Rs. 30,02,98,416/- and has paid advance tax on it, the likely concealment will be more than Rs. 400 Cr. As per page 42 of NEO-04 the value of fixed Asset is around 14.6 Cr. Accordingly there is a strong possibility that, the assessee may default the collection of demand that is likely to be raised on completion of assessment Accordingly proposal for provisional attachment under Section 281B is submitted to the Pr. CIT through the JCIT, Central, BBSR. Approval for provisional attachment under Section 281B was received through FAX vide F. No. (IT(C)/VSP/281B/2015-16 dated 12.05.2015 to attach the Bank Accounts and fixed deposits as per Annexure. Issued attachment notices under Section 281B to all the Banks as approved by the Pr. Commissioner of Income Tax (c), Visakhapatnam.” It appears from his noting that he got the approval from the Superior authority on the same day to attach the bank accounts. The order sheet dated 12.08.2015 does not disclose what opinion has been formed to protect the interest of the revenue by the Assessing Officer. The work ‘opinion’ as available in Section 281B is not found in the Section 222 or 226 of the Act. So, the word ‘opinion’ in the Section 281B is not mere desirability of the Assessing Officer but it is an assessment with certain factual aspects. It is reported in AIR 1959 SC 914 (Dolagobinda Paricha v. Nimain Charan Misra) where Their Lordships observed in the following manner:- “We are of the view that the true scope and effect of Section 50 of the Evidence Act has been correctly and succinctly put in the following observations made in Chandu Lal Agarwala v. Khalilar Rahman (1):- It is only opinion as expressed by conduct which is made relevant. This is how-the conduct comes in. The offered item of evidence is the conduct’, but what is made admissible in evidence is’ the opinion, the opinion as expressed by such conduct. The offered item of evidence thus only moves the Court to an intermediate decision : its immediate effect is only to move the Court to see if this conduct establishes any opinion’ of the person, whose conduct is in evidence, as to the relationship in question. The offered item of evidence thus only moves the Court to an intermediate decision : its immediate effect is only to move the Court to see if this conduct establishes any opinion’ of the person, whose conduct is in evidence, as to the relationship in question. In order to enable the Court to infer ‘the opinion’, the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the I opinion’. When the conduct is of such a tenor, the Court only gets to a relevant piece of evidence, namely, the opinion of a person. It still remains for the Court to weigh such evidence and come to its own opinion as (1) I.L.R. [1942] 2 Cal. 299, 309 to the factum probandum-as to the relationship in question.” We also accept as correct the view that S. 50 does not make evidence of mere general reputation (without conduct) admissible as proof of relationship.” 26. With due respect to the decision although the matter relates to the application of Section 50 of the Evidence Act but the opinion as understood from the aforesaid authority that it must be the evidence of a person concerned basing on certain facts. So, the opinion as understood under Section 281B must relate to certain facts which would give rise to the Assessing Officer that without attachment the interest of the revenue cannot be protected to cover up the liability of the assessee. On the other hand, the opinion of the assessee should be formulated by taking the assessment of the income or the escaped income of the assessee and the liability thereon and the feasibility of the assessee to the extent required to cover up the demand to be made by the Assessing Officer. The opinion under Section 281B is not only a superficial discretion of the assessee. It must be based on material facts and the evidence so far collected by the Assessing Officer. On going through the above noting of the learned Assessing Officer there is no any whisper as to any opinion formulated by the Assessing Officer to protect the interest of the revenue. Mere use of word to protect the interest of the revenue without any individual view based on material, the provisional attachment order issued is not tenable to comply Section 281B of the Act. 27. Mere use of word to protect the interest of the revenue without any individual view based on material, the provisional attachment order issued is not tenable to comply Section 281B of the Act. 27. In the extenso nothing learned Assessing Officer has only based the assessment of DDIT about concealment of income of Rs. 400 crores without having material thereto before him and without having any assessment proceeding pending which is another limb of Section 281B to consider the applicability of Section 281B, the Assessing Officer has gone ahead to issue provisional attachment. When the proceeding notice under Section 153A was issued on 10.8.2015, without a notice the provisional attachment was proposed by the Assessing Officer on 12.8.2015 and same was also got approved by the Principal Commissioner on the same day, the entire conduct of the Assessing Officer rather gives rise our view that it is not based on the provisions of law rather it is showing the arbitrariness of the authority to issue provisional attachment. 28. Not only this but also before six months expired under Section 281B the further extension has also been made for another six months and same has got approved from the Principal Commissioner. For such extension the order sheet of the Principal Commissioner of Income Tax dated 8.2.2016 speaks in the following manner: “Office of the Pr. CIT, Central, Visakhapatnam “08.02.2016 Order sheet Subject: Extension of time of provisional attachment u/s 281B of the I.T. Act, 1961- In the case of M/s National Enterprises, Prop. Shri Charanjeet Singh Grewal (PAN ABVPG6677K)- regarding. Proposal from ACIT, CC, Cuttack received along with the comments of the JCIT, CR, Bhubaneswar on the above cited subject is placed on record. As per A.O’s proposal, the current provisional attachment order will expire on 12th February, 2016 and as the assessments are pending and assesse’s group are yet to file their returns of income in response to the notices for the asst. years 2009-10 to 2014-15 and requested for approval for extension of time of provisional attachment in respect of bank accounts and FDS of the above assessee group for further six months till 5th August, 2016 as per Annexure-A. Submitted for kind perusal and necessary direction. Sd/-ITO (H. Qrs) Sd/-Pr. years 2009-10 to 2014-15 and requested for approval for extension of time of provisional attachment in respect of bank accounts and FDS of the above assessee group for further six months till 5th August, 2016 as per Annexure-A. Submitted for kind perusal and necessary direction. Sd/-ITO (H. Qrs) Sd/-Pr. CIT (C)” In the said order there is nothing mentioned whether any further opinion of the Assessing Officer has been communicated for extending the time of provisional attachment under Sub-Section 2 of Section 281B of the Act. The extension of time does not mean as empty formality but it again requires the application of judicial mind for extension of attachment. It is reported in 2003 (261)ITR 63 Madras (Seshasayee Paper & Boards Ltd. Vs. Cit & Ors. where it is observed in the following manner: “Even assuming that such an endorsement is an order by the Commissioner of Income Tax, the fact remains that no reasons have been recorded. Section 281B (2), proviso, makes it clear that an order for extension of attachment under Section 281B (1) can be made only for reasons to be recorded in writing. In the absence of reasons being recorded by the Commissioner of Income Tax, such an order contained in the file, must be taken to be illegal and without jurisdiction. Subsequent communication, containing the so called reasons, has been given by the Deputy Commissioner of Income Tax. There is no dispute that the Deputy Commissioner of Income Tax is not the person authorized under Section 281B (2), proviso. 10. In aforesaid view of the matter, the order relating to extension of provisional attachment must be taken to be illegal and non est. As a matter of fact, a similar view has been taken by a Division Bench of the Gujarat High Court in Ilaben Ramanlal Zariwala v. Union of India (1979) 118 FIR 852" 29. With due regard to the decision, we are of the view that without recording any reasons for extension of time the approval for extension of time for provisional attachment is also illegal. 30. It is submitted by the learned Standing Counsel that the petitioner has got thirteen bank accounts and two bank accounts have been already released but rest of the bank accounts are under attachment. 30. It is submitted by the learned Standing Counsel that the petitioner has got thirteen bank accounts and two bank accounts have been already released but rest of the bank accounts are under attachment. It is submitted by the learned counsel for the petitioner that in order to carry on the business further bank accounts are required to be released so as to carry on the business. When the Bank account to the extent of Rs. 10 crore have been only released but rest of the bank accounts having gold amount of money did not get released, it is really hardship for the petitioner as per the contention of the learned counsel for the petitioner to carry on the business. Of course, this view would not have been taken by us if the order of attachment could have been legal and proper but in view of the aforesaid discussion we are of the view that on facts and law the provisional attachment under Section 281B not only smacks travesty of justice but also palpably wrong and hinges to the Article 19(g) of the Constitution. It is the right of every person to carry on business and only same can be restricted by following the proper due process of law. When Section 281B has enshrined about the proper procedure of law to be followed and violation of same absolutely speaks volumes on the part of the authority and under no circumstances same should stand to the touchstone in law. Not only this but also the Assessing Officer seems to have not followed the instruction of the Department issued on 5.11.2004 which is quoted herein below:- “INSTRUCTION NO. 8/2004, Dated: November 5, 2004 F. No. 404/22/2004-ITCC Government of India Ministry of Finance Department of Revenue Central Board of Direct Taxes New Delhi To All Cadre Controlling Chief Commissioners of Income Tax, Chief Commissioners of Income Tax (Central), Delhi & Mumbai and All Directors General of Income Tax (Investigation). Steps to secure recovery of demand in high demand cases-Regarding. Attention is invited to Instruction No. 8/2004 dated 2nd September, 2004, where in the Board directed that in cases where demanded of Rs. 5 lakhs and above in big cities and Rs. Steps to secure recovery of demand in high demand cases-Regarding. Attention is invited to Instruction No. 8/2004 dated 2nd September, 2004, where in the Board directed that in cases where demanded of Rs. 5 lakhs and above in big cities and Rs. 1 lakhs elsewhere, is likely to be created and it appears that recovery, in full or in part, would be difficult, the Assessing Officer should place assets of suitable value under provisions of attachment under Section 281B of the income Tax Act, 1961. 2. Since the issue of this Instruction, some apprehensions have been expressed regarding the potential for its indiscriminate use. The purpose of the Instruction was to draw attention to the statutory provision (Section 281B) that has been in existence since 1975. To safeguard against any indiscriminate use, the Board desires that the provisions of Section 281B should be resorted to only in cases where there is a reasonable likelihood of the recovery becoming difficult due to inadequacy of assets. Where there are sufficient assets to cover the demand, the provisions of Section 281B should be resorted to, except under exceptional circumstances warranting the same, and after strictly complying with the conditions incorporated in Section 281B. 3.These instructions should be circulated amongst all officers for strict compliance. Sd (Vijay K.Sharma) Deputy Secretary (ITCC)” 31. In the aforesaid instruction it is clearly mentioned that Section 281B should be resorted to only in cases where there is a reasonable likelihood of the recovery becoming difficult due to inadequacy of assets. It is also stated that where there are sufficient assets to cover the demand, the provisions of Section 281B should not be resorted to and it should be only exceptional circumstances be applied. It seems that the proposal dated 12.8.2015 by the Assessing Officer has lost sight of such circular issued by the Department which is binding and as such it has landed in illegality and vulnerability. Thus, we are of the view that the provisional attachment issued under Section 281B is illegal and improper. Point No. (i) is answered accordingly. CONCLUSION 32. It seems that the proposal dated 12.8.2015 by the Assessing Officer has lost sight of such circular issued by the Department which is binding and as such it has landed in illegality and vulnerability. Thus, we are of the view that the provisional attachment issued under Section 281B is illegal and improper. Point No. (i) is answered accordingly. CONCLUSION 32. From the foregoing discussion, it is clear that the Assessing Officer has not followed the requirement of Section 281B of the Act and also has failed to follow the requirement of Section 281B of the Act and also has failed to follow the instruction of the CBDT issued as to how to apply the provisions of Section 281B of the Act in exceptional circumstances. For that we have observed in the aforesaid para that the provisional attachment made under Section 281B by the impugned proceeding is illegal, improper and arbitrary for which we have no hesitation to quash the same and we do so. Accordingly, the writ petition is allowed. I. MAHANTY, J. I agree. Petition allowed.