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TMI Blog2023 (8) TMI 1539X X X X Extracts X X X X X X X X Extracts X X X X ..... d by further amendment in the year, 2013. According to the appellant, the check period to find out disproportionate property to the known-sources of income is of the period prior to the amendment and therefore the Act of 2002 could not have been enforced to attach the property. It is for the reason that amendment of year 2009 and 2013 has not been given retrospective effect - The relevant date to find out the scheduled offence is the date when one projects tainted property to be untainted or involves oneself in money laundering and not the date of actual commission of predicate offence. The check period of income may be from the year 2004 to 2014 but the FIR was registered in the year 2014 and thereupon, ECIR was recorded on 12.02.2015. It is much subsequent to the amendment in the Act of 2002 to make an offence under the Prevention of Corruption Act to be a scheduled offence. In view of the above, it is not found that amendment under the Act by the notification of year 2009 or 2013 have been given retrospective effect in this case. It is to show that no offence under Section 13 (1) (d) or 13 (2) of the Act of 1988 is made out. The appellant is not having disproportionate property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as added in the schedule by an amendment under the PMLA Act of 2002 (In short the Act of 2002) by the Amendment Act 21 of 2009. It was further amended by the Amendment Act 2 of 2013. 3. The check period to determine the alleged disproportionate assets to the known-sources of income relates to the period when the offence under the Act of 1988 was not a scheduled offence. In view of the above, the respondents could not have attached the property as the amendment brought in the year 2009 followed by an amendment of 2013 has not been given retrospective effect. 4. It is further stated that the properties in question were attached by the Trial Court by its order dated 19.03.2015 thus there was no reason for the Competent Authority to presume transfer, alienation or concealment of the property to frustrate the proceeding of confiscation under Chapter III of the Act of 2002. The attachment of property was thus without application of mind. On the aforesaid grounds also, the impugned order deserves to be set aside. 5. The further argument is that the appellant Shri T.O. Sooraj had explained the sources of assets. It is not disproportionate to the knownsources of income and thereby the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoked Section 5(1) of the Act. The prayer is not to interfere in the order of the Adjudicating Authority confirming the provisional attachment. 8. It is further, argued that in the investigation by the vigilance and even under the Act of 2002, the property disproportionate to the known-source of income was found in the hands of appellant Shri T.O. Sooraj. The chargesheet was filed after collecting the evidence for the aforesaid. At this stage, the Tribunal would not be competent to decide the issue finally as to whether the appellant was holding property disproportionate to known source of income rather it would be decided by the Special Court. If the known sources exists with the appellant, it would be considered in the trial and in case of acquittal of the appellant, the property would be released but if the conclusions of the Special Court remains adverse to the appellant holding an offence under Section 13(1)(d) and 13(2) of the Act of 1988, it would proceed to confiscate of the property under the Act of 2002. The prayer is accordingly to dismiss the appeal. 9. We have considered the rival submission of the parties and scanned the record carefully. The appellant has raised thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of material in his possession, that (a) any person is in possession of any proceeds of crime; (b) such person has been charged of having committed a scheduled offence; and (c) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter, he may, by order in writing, provisionally attach such property for a period not exceeding [one hundred and fifty days] from the date of the order, in the manner provided in the Second Schedule to the Income-tax Act, 1961 (43 of 1961) and the Director or the other officer so authorised by him, as the case may be, shall be deemed to be an officer under sub-rule (e) of rule 1 of that Schedule: [Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person, authorised to investigate the offence mentioned in the Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may ..... 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