TaxTMI 
TaxTMI 
2018 (9) TMI 191
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....nation of delay of 54 days in filing of appeal under Section 26 of the Prevention of Money Laundering Act, 2002. 4. The notice of this application was issued and time was granted to file the file reply by the respondents, however, no reply has been filed by the respondents. 5. Mr. Rajiv Awasthi appears on behalf of the respondent no. 1 submits that although in the application it is mentioned that there is a delay of 54 days in filing the present appeal, however, according to his client, the delay is more than 7 years as the impugned order was passed on 12.08.2010. It is stated by him that on 31.8.2010, the appellant issued a Notice under section 13(2) of SARAESI Act, 2002 to respondent no. 2 as the latter had defaulted on the payment of the loan in respect of Property. On 20.9.2010, respondent no. 2 replied to the notice of the appellant vide which it was mentioned that for the first time the property had been attached by the respondent no. 1, thus, the appellant was aware that the properties were attached by the respondent no. 1. Therefore, the knowledge has to gether from the date of serving the reply and not from the date of 22.8.2016 when the appellant was made aware about th....
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....7.2016, as the Appellant Bank was only aware of the Provisional Attachment Order dated 31.03.2010, the Appellant Bank preferred a Writ Petition U/s 226 of the Constitution of India before the Hon'ble High Court of Judicature at Hyderabad for the State of Telangana and State of Andhra Pradesh seeking setting aside of the Provisional Attachment Order with respect to the property in question. 2.8 On 22.08.2016 Respondent No. 1 i.e. Directorate of Enforcement filed a Counter Affidavit before the Hon'ble High Court of Judicature at Hyderabad for the State of Telangana and State of Andhra Pradesh. It was then that for the first time the Appellant was first informed of the Impugned Order vide which the Ld. Adjudicating Authority had confirmed the Provisional Attachment Order. 2.9 On 04.07.2017, the Hon'ble High Court was pleased to dismiss the Writ Petition holding that "we have not gone through the merits of the writ petition and it is for the petitioner to invoke such remedies as are available to it in law if it is aggrieved by the attachment." 7. It is admitted position that on 12th July, 2017, the Debt Recovery Tribunal has allowed the application of the appellant permitting t....
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....ted that he had been given a small number of ADRs which has been sold by him through HSBC bank and the proceeds were remitted back to India." 10. Section 8.1 and 8.2 of PML Act reads as under:- "8. Adjudication.- (1) On receipt of a complaint under sub-section (5) of section 5, or applications made under sub-section (4) of section 17 or under subsection (10) of section 18, if the Adjudicating Authority has reason to believe that any person has committed an offence under section 3 or is in possession of proceeds of crime, he may serve a notice of not less than thirty days on such person calling upon him to indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property attached under sub-section (1) of section 5, or, seized or frozen under section 17 or section 18, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties should not be declared to be the properties involved in money-laundering and confiscated by the Central Government: Provided that where a notice under this sub-section specifies any property as being held by a person on behalf of....
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....lleged claim in the property by the appellant is not denied on behalf of the respondent no. 1 during hearing, except it was stated that the appellant was not necessary party and who was aware about the attachment order, therefore, there was no requirement of notice to be issued. The said argument is without any force. 13. There is no denial that the Respondent No. 1 and the Adjudicating Authority failed to issue notice to the Appellant or to afford a hearing to her, during the adjudication proceedings. Thus, the Respondent No. 1 and the Adjudicating Authority have failed to comply with the mandatory statutory requirement of the Proviso to Section 8(2), PMLA. 14. It is not understood why the requisite notice was not issued by the respondent no. 1 and Adjudicating Authority. Despite being Appellant's claim, Respondent No. 1 failed to fulfill its statutory duty. 15. In the present case, admittedly, no notice under section 8(1) or 8(2) has been issued. No opportunity was given to the appellant bank who was also not made party in the complaint under section 5(5) of the Act despite of having the knowledge by the respondent as well as the adjudicating authority. The provisional attachm....