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TMI Blog2018 (7) TMI 2075X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the trial Court proceeds on the basis that the accused and his advocate are found absent when repeatedly called out. It appears that the Court was under belief that the matter was due for hearing on that day or that they were put to notice and in spite of that neither the advocate nor the accused were present in the Court when the applications was heard by the Court. The application preferred by the respondent No.1 gives details about said entities. It is prayed in the application that the Letter of Request and Letter of Rogatory be issued to the Foreign Court to place restraint order restraining transfer of funds from the entities viz Banyan Tree Trust and Kinetic Holding Limited. The applicant further prayed that the Letter of Request or Letter of Rogatory be issued to the relevant foreign court to place a restraint order on Confiance Limited restraining it from executing fund asset transfer away from entities stated therein. It was further prayed that Court may issue Letter of Request / Letter of Rogatory to relevant foreign Court to issue attachment order in respect of entitles though not based in Guernsey but managed from that Country by Confiance Limited. In the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 for settling his cases for assessment years 1998 99 to 2014 15 vide order dated 12th April, 2016. This Court by order dated 3rd August, 2016 and 10th August, 2016 set aside order dated 12th April, 2016 passed by Income Tax Settlement Commission and Order dated 30th March, 2016 passed by Assessing Officer, thereby restoring application of settlement on the file of Commissioner. The petitioner filed stay application dated 18th July, 2016 and 19th September, 2016 before the trial Court, on the ground that the order of Settlement Commission would have directed bearing on the complaint. The respondent opposed the application by filing reply on 18th December, 2017. Application was adjourned to 12th February, 2018. (c) Since the application seeking settlement was rejected on 27th September, 2017. The said order was challenged by preferring Writ Petition No. 862 of 2018. The Writ Petition was heard by this Court and interim order was passed on 6th April 2018 granting stay ad interim against assessing officer proceeding further with scheduled dated of 12th April, 2018 for conducting assessment. The order of stay was thereafter extended on 20th April, 2018. (d) On 12th Febru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has exceeded jurisdiction under Section 166A of Code of Criminal Procedure and Section 105 of Code of Criminal Procedure. It was necessary to follow provisions envisaged under Section 105 C to 105 J of Code of Criminal Procedure. The said provisions contemplate issuance of show cause notice as to why the properties should not be attached. The Writ Petition No. 862 of 2018 is pending in High Court wherein the relief sought have bearing on maintainability of complaint, in which impugned order was passed. The outcome of Settlement Commission would have direct bearing on the complaint. It is submitted that by stating that huge amount is lying in the said account in foreign country respondent has tried to cause prejudice in the mind of Court. It is submitted that the application preferred by the Respondent No.1 also mentions in paragraph 16 that Income Tax Department through International Legal Assistant intends to restrain the accused from transferring funds and winding up of the entities, based in the Bailiwick of Guernsey as it appears that the assets of said entities on which the accused is beneficial owner are proceeds of crime. He further pointed out that in the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the trial Court it is clear that the relief was sought only under Section 166 A of Code of Criminal Procedure and not under Section 105 C. It is submitted that for the reasons stated in the application and the reasons assigned by the Court while allowing the application, the interference of this Court is not called for. The investigation is required to be conducted expeditiously so that amount lying in the account is not transferred and therefore in the interest of justice it was necessary to seek such reliefs from the Court. It is submitted that investigation contemplated under Section 166 A of Code of Criminal Procedure can be sought by preferring application in the complaint. Such investigation was sought within the purview of the definition of investigation enumerated in the Code of Criminal Procedure. It is thus submitted that the petition is devoid of merits and the same deserves to be dismissed. 6. Having considered the rival submissions and perusal of the documents on record it is apparent that the complaint was filed by the respondent before the competent court invoking the provisions of the Income Tax Act as well as Indian Penal Code in the year 2015 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement made in the course of such examination and also require such person or any other person to produce any document or thing which may be in his possession pertaining to the case and the alleged account of accused and forward all evidence so collected to the Court. The Court issued such Letter of Request calling for report as early as possible. 7. The application preferred by the respondent No.1 gives details about said entities. It is prayed in the application that the Letter of Request and Letter of Rogatory be issued to the Foreign Court to place restraint order restraining transfer of funds from the entities viz Banyan Tree Trust and Kinetic Holding Limited. The applicant further prayed that the Letter of Request or Letter of Rogatory be issued to the relevant foreign court to place a restraint order on Confiance Limited restraining it from executing fund asset transfer away from entities stated therein. It was further prayed that Court may issue Letter of Request / Letter of Rogatory to relevant foreign Court to issue attachment order in respect of entitles though not based in Guernsey but managed from that Country by Confiance Limited. It is also pertinent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edure. The Letter of Request also refers to restraint order and attachment order. In the circumstances stated hereinabove, it was expected that the trial Court ought to have given an opportunity to the Petitioner. However, one cannot ignore the purport of preferring the application and apprehension expressed therein. In the circumstances, the balance will have to be struck between the principle of natural justice and need for investigation into aspects as claimed in the application preferred by the respondents. In the circumstances, I pass the following order. ORDER (i) Writ Petition is allowed partly allowed. (ii) Impugned order dated 12th April, 2018 and order issuing Letter of Request dated 13th April, 2018 are hereby set aside. The matter is remanded back to the trial Court for hearing the application preferred by the respondent afresh. The petitioner be afforded an opportunity of hearing the application preferred by the respondent no.1. (iii) In the meantime, without prejudice to the rights / objections of both the parties and subject to the decision of the trial court in the application preferred by the respondent No.1, the amount in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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