TaxTMI 
TaxTMI 
2020 (5) TMI 277
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.... (i) The applicants filed the present appeals against the order dated 31-10-2018 passed in Reference Case No(s). R-134/2017, R-136/2017 & R-137/2017. (ii) Stay order was granted on 15-5-2019 by this tribunal with a direction that no further steps shall be taken on the notice issued by the Initiating Officer. (iii) Through these applications the applicants/appellants sought a direction to refrain the Respondent from issuing any further notice calling upon the applicants to supply any information/document, as there is interim stay dated 15-5-2019. (iv) A notice dated 09-4-2019 issued by the Respondent (Annexure-A) calling upon the applicants to supply certain document and that the applicants have replied to the said notice on 10-5-2019 (Annexure-B). (v) The Respondent has been refrained from taking any steps in pursuance to the notice including seeking further documents. (vi) The applicants have intimated the passing of order dated 15-5-2019 of this Tribunal to the Respondent vide communication dated 4-6-2019 (Annexure-C). (vii) Another notice vide letter dated 01-7-2019 under section 26(3) of PBPT Act, 1988 has been sent....
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....nge upon the powers of the Initiating Officer to carry out inquiries/investigations in furtherance of the purposes of the Act and hence such a prayer being impermissible as per law cannot be granted. (iii) The directions sought are completely frivolous, not maintainable and is liable to be dismissed. The applications are based upon willful misleading of the order dated 15-5-2019 passed by the Tribunal. The order dated 13-8-2019 passed by this tribunal in the present applications deserves to be vacated. (iv) This Tribunal has not restrained the Respondent from conducting further enquiries and investigations with respect to the Benami properties and proceeds of the Benami Transactions in accordance with law. The Respondent statement was recorded in the said order dated 15-5-2019 that the Respondent will take an action after serving of the notice under section 24(1) of the Act. (v) This Tribunal has not granted any stay on further proceedings which may be initiated against the applicant in accordance with law. 8. The Respondent has sought following relief:- (i) Dismissal of the present applications with cost. (ii) Vacating....
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....ame be done within six weeks. Rejoinder if any be filed within three weeks thereafter. List on 23rd July, 2019. Counsel appearing on behalf of the appellant is seeking certain interim order. This Tribunal on 13th May, 2019 passed the following order: "Fresh appeal has been filed under section 46 of Prohibition of Benami Property Transactions Act, 1988 against the order dated 31st October, 2018. The counsel for the respondent seeks two weeks time to file the reply in the interim application. Let the same be done within two days. Re-notify on 15th May, 2019." In the meanwhile, it is clarified here that no further steps shall be taken on the notice issued by the I.O. However, liberty is granted to the respondent to initiate the proceedings on the basis of fresh reference if registered. However, they may proceed by registering the second reference in accordance with law. Learned counsel for the appellant is pressing for interim order. The learned counsel for the respondent makes the statement on behalf of the respondent in the meanwhile that further enquiries and investigation with respect to Benami Properties and the proce....
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....d their replies to the aforesaid notices vide their replies dated 10-5-2019, 04-7-2019 & 24-7-2019 to the notices dated 09-4-2019, 01-7-2019 & 19-7-2019 respectively. In all the replies the applicants/appellants have referred to our order dated 15-5-2019. 17. Subsequent to our order dated 13-8-2019 the Learned Additional Solicitor General (ASG) appearing for the opponent/Respondent sought clarification of the order dated 15-5-2019 read with order dated 13-8-2019. It is the contention of the Learned ASG that the order dated 15-5-2019 read with 13-8-2019 does not affect the operation of the notice dated 19-7-2019. Whereas it is the contention of the Learned counsel for the applicants/appellants that in view of the order passed on 15-5-2019 read with 13-8-2019 the Respondent cannot issue any notice to call for any documents etc. 18. At this stage, a legal question was raised as to whether a single member bench is empowered to pass any order reviewing/modifying/clarifying an order passed by division bench. 19. It is the contention of the Learned ASG that a single member bench of this Tribunal is empowered to hear an appeal filed under the said Act. He has also submitted that a....
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....ave been filed on 03-5-2019 against the order dated 30-10-2018 passed by Adjudicating Authority in Reference No(s). R-134/2017, R-136/2017 & R-137/2017. Alongwith the appeals applications for stay of the operation of the impugned order have also been filed. In the appeals, the appellants prayed for an interim measure by way of staying the operation of impugned order during the pendency of appeals. On 15-5-2019 the appeals were taken up for hearing on interim stay and a speaking order was passed by the Division Bench consisting of the Hon'ble Chairman & myself. The speaking order has already been made part of this order above vide para no. 13. Since I was part of the Bench I distinctly remember that the learned counsel for the appellants specifically brought our attention to 1st para of paragraph 18.6 of the impugned order which reads as follows:- In view of these definitions of the terms"property" and "benami property" for the purposes of the enforcement of The Act, the Approving Authority and the Initiating Officer are directed to conduct further inquiries in the matter to identify the present form of the benami property which has been the subject matter of the benami....
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.... or modification of the said orders. The learned Additional Solicitor General submitted that he only seeks clarification of the orders passed on 15-5-2019 and 13-8-2019 as to whether the Initiating Officer can issue notice afresh without referring to the order of Adjudicating Authority. 28. During the course of hearing, the learned ASG cited different provisions of law and judgments of Hon'ble Supreme Court and High Courts which are referred above. On the other hand, the learned counsel for the appellants contended that this tribunal has no authority to interprete the statute. It is also contended that the orders dated 15-5-2019 and 13-8-2019 were not challenged by the opponent/respondent. He has referred the sections 10, 23 and 31 of PBPT Act, 1988 as amended. It was also contended by him that a Single Member Bench of this Tribunal has no authority under the PBPT Act, 1988 as amended to clarify/modify/review an order passed by Division Bench. He cited different judgments which have already been cited above. 29. To arrive at a conclusion it is necessary to examine various provisions of law as prescribed under the PBPT Act, 1988 as amended. 30. Chapter 5 of the PBPT Act....
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....ost Member shall discharge the functions of the Chairperson until the date on which the Chairperson resumes his duties. Section 46. Appeals to Appellate Tribunal.- (1) Any person, including the Initiating Officer, aggrieved by an order of the Adjudicating Authority may prefer an appeal in such form and along with such fees, as may be prescribed, to the Appellate Tribunal against the order passed by the Adjudicating Authority under sub- section (3) of section 26, within a period of forty-five days from the date of the order. (2) The Appellate Tribunal may entertain any appeal after the said period of forty-five days, if it is satisfied that the appellant was prevented, by sufficient cause, from filing the appeal in time. (3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (4) An Appellate Tribunal while deciding the appeal shall have the power- (a) to determine a case finally, where the evidence on record is sufficient; (b) to take additional evidence or to require any evidence to be....
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....rovisions of Smugglers and Foreign Exchange Manipulator (Forfeiture of Property) Act 1976. 32. If we read section 31 (2) (b) of the PBPT Act (hereinafter referred as "said Act") as amended regarding the constitution of the Bench, it is clear that a Bench may be constituted by the Chairperson with Two Members as the Chairperson may deem fit. The word "may" has been used in section 31 (2) (b) of the said Act as amended and the Chairperson has been given discretionary power who may constitute a Bench of two Members as may deem fit. There is no mandatory provision under the PBPT Act that a Single Member Bench cannot be constituted and hear an appeal filed under section 46 of the said Act. Further this Appellate Tribunal is empowered under section 46(e) of the said Act to pass final order and affirm, vary or reverse an order of adjudication passed by the Adjudicating Authority and pass such other order or orders as may be necessary to meet the ends of justice. Section 36 of the said Act has taken care of the situation where there are vacancies, for various reasons, in the Appellate Tribunal. The statue provide that no Act or proceedings of the Appellate Tribunal shall be invali....
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....embers" shall be substituted; 35. Consequent to the aforesaid amendments the procedures as provided in the provisions of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 are also followed in appeals filed under section 26 of PMLA, 2002 as amended. 36. It is a fact that the Appellate Tribunal under the said Act has not yet been established. All the cases decided under the said Act by the Adjudicating Authorities are preferred before this Tribunal in view of the provisions under section 71 of the said Act. 37. If we read the provisions of Sections 31, 36, 40, 46 & 71 together then it is clear that a Single Member Bench can hear the appeals filed under the said Act and pass such orders as deem fit to meet the ends of justice. Section 40(2)(f) has empowered the Appellate Tribunal to review its decisions. The vacancies in this Appellate Tribunal will not come in the way to invalidate proceedings of this Tribunal in respect of appeals filed under the said Act. The legislative intention of providing Section 36 is to mitigate such circumstances. 38. Besides above there is a doctrine called "Doctrine of Necessity". The situations in the present ....