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TaxTMI 
TaxTMI 
TaxTMI 
2018 (6) TMI 14
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....e as pleaded by the petitioners in W.P.Nos.63381 & 63382/2016 are that, the first petitioner is the holder of B.E. Degree in Civil Engineering and was initially appointed as Task Force Commander on 20.7.1984 in the Karnataka Infrastructure Rural Infrastructure Development Limited. Subsequently, he was promoted as Assistant Director in KRIDL. Presently, he is working as an Executive Engineer. On 15.11.2000, Superintendent of Police submitted a source report on the basis of the investigation conducted regarding amassing of wealth by the petitioners. Based on the said report, a case was registered in crime No.10/2010 in Dharwad Lokayuktha police station for the offences punishable under Section 13(a)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988, on 16.11.2010 against the 1st petitioner. After search and seizure mahazar reports were submitted by the Lokayuktha police, based on which, a charge sheet was filed on 1.4.2014. Para No.8 of the schedule to the provisions of Prevention of Money Laundering Act, 2002 was amended and section 13 of the provisions of the Prevention of Corruption Act, 1988 was included in para 8 of Schedule-2 of Act, 2002. The amended Act 201....
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....ntinue to reside in the schedule premises as it is the only residential house owned by them. The petitioners apprehend that the respondent may take physical possession of the schedule property. Hence, the petitioners have preferred these writ petitions challenging the action of the respondents-authorities on the grounds as mentioned at ground Nos.13 to 17 of writ petition Nos.63381-63382/2016. 3. Writ Petition Nos.48517-48518/2016 are filed under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C. seeking to call for records relating to issue of impugned summons bearing No.ECIR/78/BZ/2010/EO-NKS/1053 dated 8.8.2016(vide Annexure G and G1) and the second impugned summons bearing No.ECIR/78/BZ/2010/EO-NKS/1053 dated 22.8.2016 issued by the 3rd respondent directing the petitioners to appear before him for investigation on 14.9.2016 (Annexure J and J1) and after perusal set aside the same. 4. Brief facts of the case as pleaded by the petitioners in W.P.Nos.48517-48518/2016 are that, first petitioner is working as a Executive Engineer in the Karnataka Rural Infrastructure Development Corporation, Bellary which is a State Government Undertaking. Secon....
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....der the Prevention of Money-Laundering Act, 2002. Therefore, the petitioners are before this Court by filing the above writ petitions. 5. Heard the arguments of the learned counsel appearing for petitioners and the learned Additional Solicitor General representing the respondents in both the petitions. 6. Learned counsel appearing for the petitioners has submitted that the respondent/authority-the Deputy Director, Directorate of Enforcement, Bengaluru passed the Provisional Attachment Order under Section 5(1) of the Prevention of Money Laundering Act, 2002. Further, on the complaint filed by the Joint Director, Enforcement Directorate in original complaint No.575/2016 before the Adjudicating Authority under Section 8 of the Prevention of Money Laundering Act, 2002, after considering the detailed objection statement, the Adjudicating Authority has passed the order dated 14.9.2016 confirming the Provisional Attachment Order. It is his submission that the FIR in the case came to be registered in the year 2010 and the Prevention of Money-Laundering (Amendment) Act 2012 was gazetted on 3.1.2013. Therefore, when the properties mentioned in the writ petitions were purchased much pri....
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....in the absence of any Rules existing with respect to position of law prior to 15.2.2013 having not been framed, could not have formed basis for taking action against the petitioners. Hence, it is submitted that the proceedings initiated for taking possession of the properties in which the petitioners are staying is not in accordance with the provisions of the Prevention of Money Laundering Act, 2002. Accordingly, submitted to allow the petitions and to grant the relief as prayed for in the petitions. In support of his contention, learned counsel for the petitioners has relied upon the following decisions filed along with synopsis of arguments dated 3.1.2018, which are as under: 1. Commissioner of Income Tax & Others V/s Chhabil Dass Agarwal reported in (2014) 1 SCC 603 2. Pepsi Foods Ltd. and another -vs- Special Judicial Magistrate and others reported in (1998) 5 SCC 749 3. International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) and others -vs- NIMRA Cerglass Technics Private Limited reported in (2016) 1 SCC 348 4. P S Meherhomji -vs- K T Vijay Kumar and others reported in (2015) 1 SCC 788 5. Writ Petiti....
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....ated 04.10.2017 in W.P.No.11544/2017 (GM-RES). It is his contention that under the provisions of the Prevention of Money Laundering Act, 2002, it is not the date of acquisition of the property which is relevant, but the dates on which such property is being processed for projecting it as untainted. He submitted that in view of catena of decisions of the different High Courts and also of the Hon'ble Apex Court, the contention of the petitioners that the offence under Section 13 of the Prevention of Corruption Act, 1988 was included in the schedule to the Prevention of Money Laundering Act, 2002 by way of amendment only in the year 2013 and hence, the proceedings are liable to be set aside, is not sustainable. In support of his contention, learned Additional Solicitor General has also relied upon the relevant paragraphs of the following decisions: 1. B.Rama Raju -vs- Union of India reported in LAWS(APH) 2011-3-76 2. Hari Narayan Rai -vs- Union of India & ors in W.P. No (Cr) 325/2010 3. Narendra Mohan Singh and another -vs- Directorate of Enforcement in Cr.M.P.No.2683/2013 4. Alive Hospitality and Food Private Limited -vs- Union of India in Special ....
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....tunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. (5) The Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned. Adjudicating Authority or the Director, as the case may be. (6) The appeal filed before the Appellate Tribunal under sub-section (1) or sub- section (2) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months from the date of filing of the appeal". 42. Appeal to High Court.- Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law or fact arising out of such order: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days. Explanation - For the purposes of....
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....wn in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 16. In the instant case, 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 remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. -vs- State of Haryana, this Court has notic....
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....the said Act only in the year 2013. Therefore, when the properties were purchased by the petitioners, the amended provisions of the Act were not at all in force. Since the said amendment to the schedule and bringing the offence under Section 13 of the Prevention of Corruption Act, 1988 was only in the year 2013, it is not having retrospective effect. Hence, the petitioners have not at all committed the alleged offence and the very initiation of the proceedings by the respondent- authorities is without the authority of law. 11. Learned Additional Solicitor General appearing for respondents/authorities relied upon the decision of the High Court of Andhra Pradesh dated 4.3.2011 reported in LAWS(APH)2011-3-76 in the case of B.Rama Raju Vs. Union of India, wherein their Lordships' have laid down the following prepositions: (i) that property owned or in possession of a person, other than a person charged of having committed a scheduled offence is equally liable to attachment and confiscation proceedings under Chapter-III and Section 2(l)(u) which defines the expression "Proceeds of Crime" is not invalid; (ii) that the provisions of the second proviso to Section 5 are applicable ....
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....ing Authority, statements of the writ petitioners were called for and they were also recalled to give evidence in the matter. Therefore, it cannot be said that the Provisional Attachment Order passed by the respondents/authorities and the confirmation order passed by the Adjudicating Authority of the said Provisional Attachment, are without following the due procedure and giving fair opportunity to the writ petitioners herein to submit their say in the matter. Therefore, there is no question of violation of principles of natural justice. In view of these factual matrix in the case, the decisions relied upon by the writ petitioners will not come into the aid and assistance of the petitioners. However, the said Provisional Attachment Order passed by the respondents/authorities and also the confirmation order passed by the Adjudicating Authority are said to have been already challenged before the appellate Tribunal and the proceedings are still pending. 13. As regards the notice dated 5.10.2016 issued to the petitioners for taking possession of the property, the writ petitioners have to challenge the same by preferring an appeal before the appellate Tribunal and they cannot directl....