9911796707
TMI Blog2023 (9) TMI 1070X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the matter is of such a nature that it should be heard by a Bench of two Members then the Chairperson needs to constitute a two Member Bench. In fact, it has rightly been noted by the learned Single Judge that the application itself was not maintainable. Further, the Judgment of the learned Single Judge discloses that the matter was ready for final hearing before the Adjudicating Authority, and therefore, this Court is of the opinion that no interference is required at this juncture. The Apex Court in COMMISSIONER OF INCOME TAX OTHERS VERSUS CHHABIL DASS AGARWAL [ 2013 (8) TMI 458 - SUPREME COURT ] has observed the Act provides complete machinery for the assessment/reassessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The writ petition before the learned Single Judge was itself not maintainable - this Court is of the opinion that the Judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CBI with respect to the predicate offence before the Ld. Special Judge, Rouse Avenue District Court, New Delhi. The Petitioner, thereafter, filed an application, from which the instant proceedings arise, before the Adjudicating Authority contending that: (1) the quorum of the Adjudicating Authority is not functional in terms of Section 2 of the PMLA, 2002; (2) that the Petitioner has not been supplied with a copy of Reasons to Believe by the Respondent/Enforcement Directorate because of which the Provisional Attachment Order has been passed under Section 5(1) of the PMLA. The said application was rejected by the Adjudicating Authority by an Order dated 25.01.2023. The said Order dated 25.01.2023 was challenged by the Appellant herein by filing a writ petition i.e., W.P. (C) 2191/2023 before this Court by contending, inter alia, that (a) the petitioner was not given any hearing in the application which had been rejected by the Adjudicating Authority vide Order dated 25.01.2023 which is contrary to the principles of natural justice; and (b) the said application could not have been heard by the Chairperson sitting singly as the Bench was not in consonance with the provisions of PML ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st and Young LLP, the ECIR recorded by the ED, statements given by about 42 persons and various other documents and the material on record. The Provisional Attachment Order also meticulously contains the details of diversion of funds by the accused which are proceeds of crime. A perusal of the Provisional Attachment Order clearly brings out the details of properties purchased in the name of the Appellant by using the funds of the accused. This Court, at this Juncture, is desisting from noting the several instances where the name of the Appellant figures in the Provisional Attachment Order and the purchase of properties by the Appellant by using the diversion of funds of the accused as it can affect the rights of the Appellant in the proceedings under the PMLA. The Provisional Attachment Order passed by the Deputy Director gives in detail the reason to believe that the Appellant is in possession of the proceeds of crime and such proceeds of crime have concealed, transferred or dealt with in a manner which can result in frustrating any proceedings under the PMLA. The particulars of the Provisional Attachment Order also forms a part of the complaint before the Adjudicating Authority f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two members as the Chairperson may deem fit. Therefore, it is possible to have single member benches. The word bench therefore does not connote plurality. There could, even under Section 6(5)(b) PMLA, be a single member bench . When Section 6(6) PMLA states that a Chairperson can transfer a member from one bench to another bench, it has to be understood in the above context of there also being single-member benches. (emphasis supplied) 12. In view of the above, the application filed by the Appellant that the quorum of the Adjudicating Authority was not complete cannot be accepted. 13. Section 6(7) of the PMLA provides if at any stage of the hearing of any case or matter it appears to the Chairperson or a Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the Chairperson or, as the case may be, referred to him for transfer, to such Bench as the Chairperson may deem fit. 14. A perusal of the Order of the Adjudicating Authority shows that at the time when the application of the Appellant was considered by the learned Chairperson, the case was only at a nascent stage. Further, a per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 : 1983 SCC (Tax) 131] this Court observed: (SCC pp. 440-41, para 11) 11. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford [(1859) 6 CBNS 336 : 141 ER 486] in the following passage: (ER p. 495) There are three classes of cases in which a liability may be established founded upon a statute. But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore we discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this Court in Munshi Ram v. Municipal Committee, Chheharta [(1979) 3 SCC 83 : 1979 SCC (Tax) 205] . In the said decision, this Court was pleased to observe that: (SCC p. 88, para 23) 23. [when] a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all the other forums and modes of seeking [remedy] are excluded. 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case [AIR 1964 SC 1419] , Titaghur Paper Mills case [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 : 1983 S ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
