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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 ..... 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 Insider Trading) Regulations, 1992 (hereinafter referred to as, 'PIT Regulations'). Consequently, a show cause notice was issued and, after granting an opportunity of personal hearing, the Adjudicating Officer (hereinafter referred to as, 'AO') passed an order dated September 24, 2014 imposing a penalty of Rs. 12 lacs under Section 15A(b) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants and Shri Gaurav Joshi, the learned senior counsel with Shri Abhiraj Arora and Shri Vivek Shah, the learned counsel for the respondent. 5. We find that recourse to the recovery proceeding has been initiated under Section 28A of the SEBI Act. For facility, the said provision is extracted hereunder :- "28A. (1) If a person fails to pay the penalty imposed by the adjudicating officer or fails to comply with any direction of the Board for refund of monies or fails to comply with a direction 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 hereaft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the persons aforesaid; and so far as the movable or immovable property or monies held in bank accounts so transferred to his minor child or his son's minor child is concerned, it shall, even after the date of attainment of majority by such minor child or son's minor child, as the case may be, continue to be included in the person's movable or immovable property or monies held in bank accounts for recovering any amount due from the person under this Act. Explanation 2.- Any reference under the provisions of the Second and Third Schedules to the Income-tax Act, 1961 and the Income-tax (Certificate Proceedings) Rules, 1962 to the assessee shall be construed as a reference to the person specified in the certificate. Explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 or body of individuals whether incorporated or not. This definition does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was done against a dead person which was without jurisdiction. Once the person dies, recovery proceedings cannot continue and can only continue against the legal representatives if the Statute provides specifically. 12. Thus, we are of the opinion that SEBI Act and its Regulations does not contain any provision to continue recovery proceedings against the legal representative of the deceased. So long as there is no separate machinery to proceed against the legal representative, the cause of action comes to an end and recovery proceedings could no longer continue. 13. In Shabina Abraham (supra), the Hon'ble Supreme Court was considering the provisions of the Central Excises and Salt Act, 1944 and held that there was no separate machine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Act shall apply accordingly. (b) any proceeding for disgorgement, refund or an action for recovery before the Recovery Officer under this Act, except a proceeding for levy of penalty, which could have been initiated against the deceased if he had survived, may be initiated against the legal representative and all the provisions of this Act shall apply accordingly. (3) Every legal representative shall be personally liable for any sum payable by him in his capacity as legal representative if, while his liability for such sum remains undischarged, he creates a charge on or disposes of or parts with any assets of the estate of the deceased, which are in, or may come into, his possession, but such liability shall be limited to the value ..... X X X X Extracts X X X X X X X X Extracts X X X X
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