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TMI Blog2014 (6) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... sought copies after collecting the necessary administrative cost from the petitioner. Needless to observe that it is also open to the petitioner to seek the inspection of the documents by making the necessary application under Regulation 16 of the said Regulations. The liberty is also reserved to the petitioner to avail of the remedy of filing an appeal invoking Section 26 of the said Act. It is made clear that all the contentions are kept open. - W.P.NO.19369 OF 2014 [GM-ML/PB] - - - Dated:- 4-6-2014 - MR. JUSTICE ASHOK B. HINCHIGERI FOR THE APPELLANT: SRI S.K.V. CHALAPATHY, SENIOR ADVOCATE FOR SRI SWAROOP ANAND.R, ADVOCATE FOR THE RESPONDENT: SRI KALYAN S. BASAVARAJ, ASG FOR R1; SRI S. MAHESH, ADVOCATE FOR R2 AND R3) ORDER The matter is taken up for final disposal with the consent of the learned advocates appearing for the parties. 2. The petitioner is calling into question the show cause notice, dated 24.2.2014(Annexure-D) issued by the first respondent Adjudicating Authority. It appears to have been issued in exercise of the power conferred by Section 8 of the Prevention of Money-Laundering Act, 2002 ( the said Act for short) read with Regulation 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even for transferring the case for administrative convenience, the reasons are required to be stated. Paragraph No.45 of the said decision read out by him is as follows: 45. We may, however, before we leave this topic observe that it would be prudent if the principles of natural justice are, followed, where circumstances permit, before any order of transfer under s. 5(7A) of the Act is made by the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, and notice is given to the party affected and he is afforded a reasonable opportunity of representing his views on the question and the reasons of the order are reduced however briefly to writing. It is significant that when any question arises under s. 64 as to the place of assessment and is determined by the Commissioner or Commissioners or by the Central Board of Revenue, as the case may be, the assessee is given an opportunity under s. 64(3) of representing his views before any such question is determined. If an opportunity is given to the assessee in such case, it is all the more surprising to find that, when an order of transfer under s.5(7A) is made transferring the case of the assessee from on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which reads as under:- 4:- Holding of inquiry:- (1) For the purpose of adjudicating under section 13 of the Act whether any person has committed any contravention as specified in that section of the Act, the Adjudicating Authority shall, issue a notice to such person requiring him to show cause within such period as may be specified in the notice (being not less than ten days from the date of service thereof) why an inquiry should not be held against him. (2) Every notice under sub-rule (1) to any such person shall indicate the nature of contravention alleged to have been committed by him. (3) After considering the cause, if any, shown by such person, the Adjudicating Authority is of the opinion that an inquiry should be held, he shall issue a notice fixing a date for the appearance of that person either personally or through his legal practitioner or a chartered accountant duly authorized by him. 14. However, this formation of opinion by the Adjudicating Authority is not required to be preceded by a personal hearing but only consideration of the written objections of the noticee would meet the ends of natural justice. The personal hearing would be aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opinion of the Adjudicating Authority would be given to the noticee when the proceedings are dropped in the form of an order. However, in cases where the opinion is formed to proceed further with the s how cause notice, then a notice for personal hearing is required to be given to the party in terms of Rule 4 of the Adjudication Rules. However, if on receipt of the notice for personal hearing, the recorded reasons are sought for by the noticee, the same should be given. However, this recording of reasons is not an appealable order but it would give the noticee a chance during adjudication proceedings to meet the reasons which led the Adjudicating Authority to form an opinion that he must proceed further with the inquiry against noticee. This would only result in fair procedure which would be in consonance not only with Rule 4 of the Adjudication Rules but with principles of natural justice. 7. He also sought to draw support from the Hon ble Supreme Court s decision in the case of KRANTI ASSOCIATES PVT. AND ANOTHER V. SH. MASOOD AHMED KHAN AND OTHERS, reported in 2010 (9) SCC 496. Paragraph No.51, in which the discussion in the said case is summarized, reads as follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, adequate and intelligent reasons must be given for judicial decisions . o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of g iving reasons for the decision is of the essence and is virtually a part of Due Process . 8. The learned Senior Counsel submits that the Adjudicating Authority is not justified in refusing to give the reasons on the ground that Form No.1 or Regulation- 12 does not provide for the same. The Apex Court itself has said in a series of cases that the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that the petitioner is aggrieved by the very issuance of the show cause no tice, her remedy is to file an appeal before the Appellate Tribunal invoking Section 26 of the said Act. Further, if the Appellate Tribunal s order goes adverse, that also does not r ender the petitioner remediless. She can file a second appeal before this Court invoking Section 42 of the said Act. 13. For advancing the contention that the appeal remedy provided by the statute cannot be bypassed, he relies on the Apex Court s judgment in the case of RAJKUMAR SHIVHARE V. ASSISTANT DIRECTOR, DIRECTORATE OF ENFORCEMENT AND ANOTHER reported in AIR 2010 (4) SCC 772 . In support of his submissions, he read out the portion of Head Note E of the reported decision. The same is extracted hereinbelow:- ............When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal to the Appellate Tribunal 17. On the ground of non-furnishing of the order sheet or of any other document also, the quashing of the show cause notice is not warranted. The petitioner s grievance can be redressed by directing the petitioner to submit an application in Form No.10 for the issuance of the certified copies of the documents required by her and by directing the respondent No.1 to issue the sought copies after collecting the necessary administrative cost from the petitioner. Needless to observe that it is also open to the petitioner to seek the inspection of the documents by making the necessary application under Regulation 16 of the said Regulations. The liberty is also reserved to the petitioner to avail of the remedy of filing an appeal invoking Section 26 of the said Act. It is made clear that all the contentions are kept open. 18. At this juncture. Sri Swaroop Anand, the learned counsel for the petitioner prays for a direction to the Appellate Tribunal to dispose of the anticipated appeal as expeditiously as possible. The Appellate Tribunal shall dispose of the petitioner s appeal, if filed, in accordance with l aw and as expeditiously as possible. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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