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TaxTMI 
TaxTMI 
TaxTMI 
2016 (11) TMI 1546
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....f there is delay, it needs to be condoned as there are justifiable reasons. This appeal raises these issues : Has the Tribunal properly served the order on the party? Is there any delay? Does the procedure prescribed in the Prevention of Money Laundering (Appeal) Rules, 2005 ('the Rules') in conflict with that provided in the principal enactment? Dispute 3. The appellant is the defendant in the Original Complaint No. 308 of 2014 before the adjudicating authority under the Act. Shorn of extraneous particulars, we may observe that initially the adjudicating authority passed an order provisionally attaching the appellant's property - residential house. Subsequently the order of provisional attachment was confirmed through a final order dated 28-8-2014. Aggrieved, the appellant, invoking Section 26 of the Act, filed an appeal before the Appellate Tribunal in FPAPMLA639/Cochin/2014. On 5-8-2015, the Appellate Tribunal dismissed the appeal. Later, the appellant filed this appeal along with an application to condone the delay if any. 4. The appellant's primary contention is that the appeal was filed within time under Section 42 of the Act for she obtained the certified copies....
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....s before the Appellate Tribunal has a right to take the assistance of an authorised representative. According to him, an authorised representative need not be a lawyer alone; it can be any person who is competent to represent or assist the party to the proceedings. 9. The learned Senior Counsel has also submitted that sub-section (5) of Section 26 of the Act specifically mandates that the Appellate Tribunal shall send a copy of its order to the parties to the appeal. In this context, drawing our attention to Section 73 of the Act, which confers on the Central Government the rule making power, the learned Senior Counsel has laid emphasis on Rule 5(b) of the Rules. 10. On a perusal it is evident that Rule 5(b) of the Rules allows the Tribunal to serve notice on an authorised agent. Nevertheless, the learned Senior Counsel contends that Rule 5(b) runs counter to Section 26(5) of the Act; so, it renders itself ultra vires. He has drawn our attention to the amended relief the appellant has sought: Rule 5 is ultra vires of the parent statute. 11. Eventually placing reliance on Benarsi Krishna Committee and others v. Karmyogi Shelters Private Limited, (2012) 9 SCC 496, t....
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....epresentative" shall have the same meaning as assigned to it under sub-section (2) of Section 288 of the Income tax Act, 1961. 16. As seen from the Income tax Act, sub-section (2) of Section 288 defines "authorised representative" to mean a person authorised by the assessee in writing to appear on his or her behalf. It includes any legal practitioner, an accountant, or any person who has passed an accountancy examination recognised by the Board. It mentions certain other categories, which need no enumeration. 17. The fulcrum of the appellant's submissions is Rule 5 of the Rules. At the outset, we may consider Rule 4, too. It defines 'order' as the one passed by an Appellate Tribunal. Rule 5 delineates the meaning of 'service'. There is no cavil concerning the proposition that an order passed by the Appellate Tribunal falls within the definition of 'order' under Rule 4; it needs to be served in the manner Indicated either in the statute or in the rules made thereunder - so long as the procedures prescribed in the statute and the rules co-exist. 18. It is trite to observe that if there is to be any repugnancy or conflict between the principal legislation and the sub....
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....on must be addressed to the party to the proceedings - not the authorized agent. 21. Succinctly put, as per sub-rule (a), if the service is by way of delivery, it can be either on the person or his authorised agent. If it is by registered post, it must be only on the person - the authorized agent stands excluded. 22. Here it is an admitted fact that the Appellate Tribunal has chosen sub-rule (b) for communicating its order - through registered post with acknowledgement due. Once we accept that fact, It goes without saying that sub-rule (a) stands excluded. Indeed, the appellant has contended that under sub-rule (a), a duly authorised agent must be the person authorised by the party only to receive the notice. This authorization, as has been contemplated under sub-rule (a), she asserts, has nothing to do with what has been mentioned under Section 39. 23. To make matters simple, we wish to observe that the appellants submissions on interpreting any expression employed in sub-rule (a) need not be considered. Indisputably, the Appellate Tribunal has invoked sub-rule (b) to serve a copy of the order. On whom it has been served and whether that service amounts to proper....
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....nal consequences, the procedure needs strict compliance; it brooks no dilution. Further, even if there were to be any ambiguity in a provision, the infraction of which is alleged, the interpretative inclination must be towards the person affected by that infraction. Here, undeniably once a person is non-suited on the ground of limitation, the consequences are penal. Therefore, our conclusion that sub-rule (b) of Rule 5 has been violated further gets fortified on this ground of strict interpretation. 30. Though the learned Senior Counsel has placed reliance on Benarsi Krishna Committee (supra), given the conclusion we have arrived at, it needs no reference, further, the decision relied on interprets the provisions of Arbitration and Conciliation Act; it concerns the service of notice. The procedure prescribed there substantially differs from what is prescribed in the Money laundering Act or the Appellate Rules. Issue No. II : Is Rule 5 ultra vires of the Parent Statute? 31. Justice Felix Frankfurter held in Specter Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 103 (1944), that if there is one doctrine more deeply rooted than any other in the process of constitutiona....