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TMI Blog2019 (12) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... tion comes to an end and recovery proceedings could no longer continue. In the light of the aforesaid, the impugned recovery certificate for recovery of ₹ 12 lacs cannot be sustained and is quashed. The appeal is allowed - Appeal No. 100 Of 2018 - - - Dated:- 24-9-2019 - Justice Tarun Agarwala, Presiding Officer And Dr. M.T. Joshi, Judicial Member Prakash Shah, Adv. for the Appellant. Gaurav Joshi, Sr Adv. Abhiraj Arora and Vivek Shah, Advs. for the Respondent. ORDER Tarun Agarwala, Securities and Exchange Board of India (hereinafter referred to as, 'SEBI') carried out an investigation in respect of buying, selling and dealing in shares of M/s. Niraj Cement Structuals Ltd. In the investigation, it was found that Vijay kumar Raj kumar Chopra, husband of the appellant and now deceased had violated the provisions of Regulation 29(1) and 29(2) of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 (hereinafter referred to as, 'SAST Regulations') as well as Regulation 13(5) of the Securities and Exchange Board of India (Prohibition of Insid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of disgorgement order issued under section 11B or fails to pay any fees due to the Board, the Recovery Officer may draw up under his signature a statement in the specified form specifying the amount due from the person (such statement being hereafter in this Chapter referred to as certificate) and shall proceed to recover from such person the amount specified in the certificate by one or more of the following modes, namely:- (a) attachment and sale of the person's movable property; (b) attachment of the person's bank accounts; (c) attachment and sale of the person's immovable property; (d) arrest of the person and his detention in prison; (e) appointing a receiver for the management of the person's movable and immovable properties, and for this purpose, the provisions of sections 220 to 227, 228A, 229, 232, the Second and Third Schedules to the Income-tax Act, 1961 and the Income-tax (Certificate Proceedings) Rules, 1962, as in force from time to time, in so far as may be, apply with necessary modifications as if the said provisions and the rules made thereunder were the provisions of this Act and referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer after drawing a certificate, can proceed to recover from the said person the amount specified in the certificate by adopting one or more of the following modes, namely, attachment and sale of the person's movable property; attachment of person's bank account; attachment and sale of the persons immovable property; arrest of the person and detention in prison appointing a receiver for the management of the person's movable and immovable properties. For the aforesaid purpose, the provision of Section 220 to 227, 228-A, 229 232 as well as the Second and Third Schedule to the Income Tax Act, 1961 would apply as far as possible. 7. The term 'person' has not been defined under the SEBI Act and, therefore, recourse is taken to the General Clauses Act, 1897. Section 3(42) of the General Clauses Act, 1897 defines 'person' as under : person shall include any company or association or body of individuals, whether incorporated or not. 8. The Hon'ble Supreme Court in Shabina Abraham v. Collector of Central Excise and Custom [2015] 61 taxmann.com 95/52 GST 30 has held that : person shall include any company or association ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Salt Act to proceed against the dead person and consequently, held that recovery proceeding against the legal representative of the deceased was without jurisdiction. The said decision is squarely applicable in the instant case. 14. The learned counsel for the respondent placed reliance upon the provision of Section 23JC which was inserted under the Securities Contracts (Regulation) Act, 1956 by the Finance Act, 2018. For facility, the said provision is extracted hereunder :- 157. After section 23JB of the principal Act, the following section shall be inserted namely :- '23JC. (1) Where a person dies, his legal representative shall be liable to pay any sum which the deceased would have been liable to pay, if he had not died, in the like manner and to the same extent as the deceased: Provided that, in case of any penalty payable under this Act, a legal representative shall be liable only in case the penalty has been imposed before the death of the deceased person. (2) For the purposes of sub-section (1), - (a) any proceeding for disgorgement, refund or an action for recovery before the Recovery Officer under this Act, exc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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