9911796707
TMI Blog2020 (5) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... hat a Single Member Bench cannot clarify the orders passed by Division Bench in the given facts and circumstances of the appeals. The appellants cannot be allowed to take the advantage of an order which does not meant to be interpreted in the way now the appellants are interpreting. If the interpretation of the orders dated 15-5-2019 13-8-2019 are allowed to be interpreted the way the appellants are interpreting then it would amount to stall the investigations and scuttle the power given under the statue to the statutory authority under the said Act. In view of the discussions and after perusal of the judgments cited by both the parties it is held that the Single Member Bench can clarify the orders passed by the Division Bench under the relevant provisions of the said Act discussed above in the given facts and circumstances of the case and also by following the doctrine of necessity. It is clarified that no bar has been imposed in the orders dated 15-5-2019 13-8-2019 on the respondent to proceed with investigations/calling for documents from the appellants in accordance with law. It is further clarified that for the same, the respondent has to register a fresh reference a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... details/information (Annexure-D). (viii) The applicants replied on 4-7-2019 to the aforesaid notice vide (Annexure-E). (ix) The applicants received another notice/summons dated 19-7-2019 under section 19(1)(b) of PBPT, 1988 calling upon the appellants to supply certain documents (Annexure-F). (x) Reply dated 24-7-2019 to the notice dated 19-7-2019 was sent by the applicants (Annexure-G). 3. On the basis of aforesaid contentions the applicants/appellants have, inter-alia, prayed for the following relief: (a) Direction to the opponent to comply the order dated 15-5-2019 and also refrain the opponent from any further notice to the applicants calling upon the applicants to supply any document; (b) For preponement of date of hearing of appeals; (c) Grant such order and further reliefs as may be deemed fit and proper. 4. Due to the urgency shown in the applications dated 31-7-2019, the same were heard on 13-8-2019 without waiting for the replies of the opponent and an interim order dated 13-8-2019 (supra) was passed on the same date. 5. The aforesaid orders dt.15-5-2019 and 13-8-2019 were passed by the Division Bench presided by the then Chairman Justice Manmoh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 019 which are mostly repetition of the contents that have been contended in their applications and in furtherance thereto the applicants have advanced their interpretation of the order dated 15-5-2019 passed by this Tribunal. 10. Heard the learned counsels for both the parties and perused the record. The appellants have filed the aforesaid appeals against the order dated 30-10-2018 under section 46(1) of PBPT Act, 1988 to set-aside or varied or modify the order dated 30-10-2018 passed by the Adjudicating Authority under section 26(3) of the said Act in reference case no(s). R-136/2017, R-136/2017 R-137/2017 and also to quash and set aside the Provisional Attachment Orders passed by Initiating Officer under section 24(4)(a)(i) of the said Act to the extent it holds the appellants as abettor of the impugned transactions. It is also prayed therein to stay the impugned order during the pendency of the appeals. 11. The appeals were filed on 03-5-2019 and placed before the Division Bench which includes undersigned as one of the Member of the Bench. Alongwith the appeals, applications for stay of the impugned order dated 31-10-2018 were filed. The stay applications were heard on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act. The order is passed accordingly. List on 23rd July, 2019. Copy of the order be given 'dasti' to both the parties. Order is passed accordingly.' 14. Subsequent to the passing of the aforesaid order dated 15-5-2019, in view of the fresh notices, the applicants/appellants filed applications dated 31-7-2019 on dated 06-8-2019 registered as application no(s). MP-PBPT-710/AHD/2019, MP-PBPT-711/AHD/2019, MP-PBPT-712/AHD/2019, MP-PBPT-713/AHD/2019 MP-PBPT-714/AHD/2019 seeking direction to the Respondent to comply the order dated 15-5-2019 and also to refrain from issuing any further notice to the applicants calling upon the applicants to supply any documents. Along with the applications the applicants/appellants have filed a copy of the notice dated 09-4-2019 (Annexure-A), a copy of the replies dated 10-5-2019 (Annexure-B), a copy of communication dated 04-6-2019 (Annexure-C), a copy of the email dated 01-7-2019 (Annexure-D), a copy of the replies dated 04-7-2019 (Annexure-E), a copy of the summons dated 19-7-2019 (Annexure-F), a copy of the replies dated 24-7-2019 (Annexure-G). The applications were listed on 13-8-2019 and upon hearing the applicants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder on pending application. He made me visited to sections 36, 46, 38 and 31 of the said Act. He has also drawn the attention of the tribunal to section 15(P.) of the SEBI Act. He has also cited the following judgments in support of his contention: (i) The judgment passed by Hon'ble Supreme Court in the matter of Election Commission of India v. Doctor Subramaniam Swami [1996] 4 SCC 104 (ii) The judgment passed by Hon'ble High Court of Delhi in the matter of Talluri Srinivas v. Union of India [2018] 91 taxmann.com 175/254 Taxman 261 (Delhi) (iii) The judgment passed by Hon'ble High Court of Delhi in the matter of Kwality Restaurant Ice-Cream Co. v. Commissioner of Vat, Trade and Tax Department [2012] 27 taxmann.com 58/37 STT 579 (Delhi) (iv) The judgment passed by Hon'ble High Court of Delhi in the matter of Radio Next Webcastion Pvt. Ltd. v. Union of India [W.P. (C ) No. 5893/2018, C.M. Nos. 22982/2018 and 32754/2018 dated 27-9-2018] (v) The judgment passed by Central Electricity Regulatory Commission, Delhi in the matter of Himachal Sorang Power (P.) Ltd. v. Powergrid Corp of India Ltd. [Review Petition No. 3/RP/2018 dated on 11th May, 2018.] 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating Authority is not empowered to give the above direction as it is his beyond jurisdiction. It was further contended by the learned counsel for the appellants that the Initiating Officer cannot issue any notice on the basis of the aforesaid directions of Adjudicating Authority. The matter was heard by the Division Bench. The learned counsel for the appellants sought interim order on the notice issued by the Initiating Officer citing the aforesaid direction of Adjudicating Authority. 24. After hearing the parties on 15-5-2019 a clarificatory order was passed by the Division Bench clarifying that no further steps shall be taken on the notice issued by the Initiating Officer. At the same time, liberty was granted to the Respondent to initiate the proceedings on the basis of fresh reference if registered and liberty was also given that they may proceed by registering the second reference in accordance with law. During the course of hearing, the learned counsel for the Respondent has made the statement on behalf of the Respondent that further inquiries and investigation with respect to the benami properties and the proceeds of benami transaction if necessary shall be proceede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal to hear appeals against the orders of the Adjudicating Authority under this Act. Section 31:- Composition, etc., of Appellate Tribunal (1) The Appellate Tribunal shall consist of a Chairperson and at least two Members of which one shall be a Judicial Member and other shall be an Administrative Member. (2) Subject to the provisions of this Act,- (a) the jurisdiction of the Appellate Tribunal may be exercised by Benches thereof; (b) a Bench may be constituted by the Chairperson with two Members as the Chairperson may deem fit; (c ) the Benches of the Appellate Tribunal shall ordinarily sit in the National Capital Territory of Delhi and at such other places as the Central Government may, in consultation with the Chairperson, by notification, specify; (d) the Central Government shall, by notification, specify the areas in relation to which each Bench of the Appellate Tribunal may exercise its jurisdiction. (3) Notwithstanding anything contained in sub-section (2), the Chairperson may transfer a Member from one Bench to another Bench. Section 36:- Vacancies, etc. not to invalidate proceedings of Appellate Tribunal:- No act o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal essential for adjudication of the case and refer them to the Adjudicating Authority for determination; (e) to pass final order and affirm, vary or reverse an order of adjudication passed by the Adjudicating Authority and pass such other order or orders as may be necessary to meet the ends of justice. (5) The Appellate Tribunal, as far as possible, may hear and finally decide the appeal within a period of one year from the last date of the month in which the appeal is filed. Section 47. Rectification of mistakes.- (1) The Appellate Tribunal or the Adjudicating Authority may, in order to rectify any mistake apparent on the face of the record, amend any order made by it under section 26 and section 46 respectively, within a period of one year from the end of the month in which the order was passed. (2) No amendment shall be made under sub-section (1), if the amendment is likely to affect any person prejudicially, unless he has been given notice of intention to do so and has been given an opportunity of being heard. Chapter (VIII) of the PBPT Act, 1988 as amended provides transitional provisions which is as under:- Section 71. Transitional pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is not invalid/illegal. 33. Section 71 is the provision which takes care of the situation until the Adjudicating Authorities are appointed and the Appellate Tribunal under the said Act is established. It provides that until the Appellate Tribunal is established, the Appellate Tribunal established under section 25 of the Money Laundering Act, 2002 may discharge the functions of the Appellate Tribunal under the said Act. In the year 2016, Section 25 of the Money Laundering Act (PMLA), 2002 was amended vide Section 232 of Finance Act, 2016 and for section 25, sections 27 to 34 and Sections 36 to 38 40 of Money Laundering Act, the following were substituted which reads as follows: 'AMENDMENT TO THE PREVENTION OF MONEY-LAUNDERING ACT, 2002 232. In the Prevention of Money-laundering Act, 2002 with effect from the 1st day of June, 2016, - (a) in section 2, in sub-section (1), in clause (b), for the words established under , the words referred to in shall be substituted; (b) for section 25, the following section shall be substituted namely:- 25. The Appellate Tribunal constituted under sub-section (1) of section 12 of the Smugglers and Foreign Excha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority in Para no. 18.6 of the impugned order. The order dated 15-5-2019 is crystal clear that the said order is with respect to notice issued by the Initiating Officer (I.O). By the time the order dated 15-5-2019 was passed, the notice dated 09-4-2019 was only issued wherein there was reference to the order of Adjudicating Authority. Therefore, it is clarified that the direction in the order dated 15-5-2019 was that no further steps shall be taken on the notice issued by the I.O. Liberty was granted to the respondent to initiate the proceedings on the basis of fresh reference, if registered and they may proceed by registering the second reference in accordance with law. In the said order dated 15-5-2019, the respondent had also undertook that if necessary the respondent shall proceed with in accordance with law after serving the notice under section 24 (1) of the said Act. 40. The second order dated 13-8-2019, a clear order that has been passed with the direction that no further steps shall be taken by the respondent in view of the impugned order . Here also there is a mention of/reference to impugned order. The relevant portion of the impugned order has already been clarified ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
