TaxTMI 
TaxTMI 
2020 (11) TMI 629
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....id order. 3. The respondent no.1 thereafter, in terms of Section 5(5) of the Act, filed a complaint, being OC No.1228/2019, before the Adjudicating Authority on 05.12.2019. 4. The Adjudicating Authority, on 18.12.2019, issued a Show Cause Notice under Section 8(1) of the Act to the petitioners. However, before the proceedings could be concluded, on 23.03.2020, the Government of India declared a nationwide lockdown with effect from 24.03.2020 due to the spread of the COVID-19 Pandemic. 5. The lockdown declared by the Government of India was partially lifted on 20.04.2020 and the Adjudicating Authority, admittedly, began functioning in a restricted manner thereafter. 6. On 26.05.2020, the Adjudicating Authority issued the Impugned Notice/Summons to the petitioners by way of an e-mail, indicating the next date of hearing in the complaint to be 16.06.2020. 7. The petitioners filed the present petition on 15.06.2020 claiming therein that as the period of 180 days from the date of the Provisional Attachment Orders had expired, in terms of Section 5(3) of the Act, the said order ceased to have effect and therefore, the Adjudicating Authority had become functus officio and t....
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.... under the general or special laws, including the Arbitration and Conciliation Act, 1996 and the Negotiable Instruments Act, 1881, and also with respect to Section 29A and 23(4) of the Arbitration and Conciliation Act, 1996 etc., the same cannot extend the period of validity of a Provisional Attachment Order passed under Section 5(1) of the Act, as it is not a period of limitation. He further submits that the Government of India, by a Notification dated 31.03.2020 extended the period for completion of proceedings prescribed under various Acts, like the Wealth Tax Act, 1957, The Prohibition of Benami Property Transactions Act, 1988, etc., however, the period prescribed under the provisions of the Prevention of Money Laundering Act, 2002 has not been extended. Therefore, there is no occasion for this Court also to extend the period prescribed. 11. Placing reliance on the judgment of the Supreme Court in New India Assurance Co. Ltd. vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2015) 16 SCC 20 and in Central Bureau of Investigation & Ors. vs. Keshub Mahindra & Ors. (2011) 6 SCC 216, he submits that where the statute does not vest any power with the Court to extend the period presc....
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....ourt. He submits that the delay in completion of the proceedings before the Adjudicating Authority, not being attributable to the respondents, the respondents cannot be prejudiced by the same. 17. I have considered the submissions made by the learned counsels for the parties. REASONING AND FINDING: 18. Sub-section (1) of Section 5 of the Act empowers the Director or any other officer not below the rank of the Deputy Director authorized by the Director of Enforcement in this regard, to pass an order provisionally attaching property of a person "for a period not exceeding 180 days from the date of the order‟. In terms of the third proviso to sub-section (1) of Section 5, this period is extended by 30 days from the date of the order vacating any stay order granted by the High Court on such Provisional Attachment Order or proceedings before the Adjudicating Authority. Sub-section (3) of Section 5 to the Act provides that every Provisional Attachment Order passed under sub-section (1) of Section 5 of the Act, shall cease to have effect after the expiry of the period of one hundred and eighty days or on the date of the order made under sub-section (3) of Section 8, "whiche....
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....non-attachment of the property is likely to frustrate any proceeding under this Act. Provided also that for the purposes of computing the period of one hundred and eighty days, the period during which the proceedings under this section is stayed by the High Court, shall be excluded and a further period not exceeding thirty days from the date of order of vacation of such stay order shall be counted. xxxxx (3) Every order of attachment made under sub-section (1) shall cease to have effect after the expiry of the period specified in that sub-section or on the date of an order made under sub-section (3) of section 8, whichever is earlier. (Emphasis supplied) 20. A reading of the above provisions would clearly show that one hundred and eighty days from the passing of the Provisional Attachment Order is not prescribed as a period of limitation to do a particular act, but as the outer period of validity of the Provisional Attachment Order itself. On expiry of the said period, in absence of an order passed by the Adjudicating Authority under sub-section (3) of Section 8 of the Act, the Provisional Attachment Order ceases to have effect or lapses on its own. Such ....
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....s laid down in the decisions referred to at the Bar thus: (a) State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77, wherein this Court observed: "59. .....In absence of any substantive provisions contained in a parliamentary or legislative act, he cannot be refrained from dealing with his property in any manner he likes. Such statutory interdict would be opposed to one's right of property as envisaged under Article 300-A of the Constitution." (b) K.T. Plantation Pvt. Ltd. v. State of Karnataka, (2011) 9 SCC 1 in which it was opined: "168. Article 300-A proclaims that no person can be deprived of his property save by authority of law, meaning thereby that a person cannot be deprived of his property merely by an executive fiat, without any specific legal authority or without the support of law made by a competent legislature. The expression "property" in Article 300-A confined not to land alone, it includes intangibles like copyrights and other intellectual property and embraces every possible interest recognized by law. 169. This Court in State of W.B. v. Vishnunarayan and Associates (P) Ltd., while examining the provisions of the We....
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.... 19(1)(f) was deleted by the Forty-fourth Amendment to the Constitution, Article 300-A has been placed in the Constitution, which reads as follows: "300-A. Persons not to be deprived of property save by authority of law.- No person shall be deprived of his property save by authority of law." 8. This is a case where we find utter lack of legal authority for deprivation of the respondent's property by the appellants who are State authorities....." (e) In Delhi Airtech Services (P) Ltd. v. State of U.P. (2011) 9 SCC 354, this Court held: "83. The expression "law" which figures both in Article 21 and Article 300-A must be given the same meaning. In both the cases the law would mean a validly enacted law. In order to be valid law it must be just, fair and reasonable having regard to the requirement of Articles 14 and 21 as explained in Maneka Gandhi. This is especially so, as "law" in both the Articles 21 and 300-A is meant to prevent deprivation of rights. Insofar as Article 21 is concerned, it is a fundamental right whereas in Article 300-A it is a constitutional right which has been given a status of a basic human right.....
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....Paper Mills Ltd.) The statutory scheme contemplates that a person and owner of land should not ordinarily be deprived from the user thereof by way of reservation or designation. 58. Expropriatory legislation, as is well-known, must be given a strict construction." (i) In State of Gujarat v. Shantilal Mangaldas, (1969) 1 SCC 509, it was held: "55. ...... Once the draft town-planning scheme is sanctioned, the land becomes subject to the provisions of the Town Planning Act, and on the final town-planning scheme being sanctioned, by statutory operation the title of the various owners is readjusted and the lands needed for a public purpose vest in the local authority. Land required for any of the purposes of a town planning scheme cannot be acquired otherwise than under the Act, for it is a settled rule of interpretation of statutes that when power is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all:" (emphasis supplied) (j) In Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111, it was opined: "40. The statutory interdict of use and enjoyment of the prop....
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....the District Forum to extend such time beyond 15 days, observed as under:- "21. The legislature in its wisdom has provided for filing of complaint or appeals beyond the period specified under the relevant provisions of the Act and Regulations, if there is sufficient cause given by the party, which has to be the satisfaction of the concerned authority. No such discretion has been provided for under Section 13(2)(a) of the Consumer Protection Act for filing a response to the complaint beyond the extended period of 45 days (30 days plus 15 days). Had the legislature not wanted to make such provision mandatory but only directory, the provision for further extension of the period for filing the response beyond 45 days would have been provided, as has been provided for in the cases of filing of complaint and appeals. To carve out an exception in a specific provision of the statute is not within the jurisdiction of the Courts, and if it is so done, it would amount to legislating or inserting a provision into the statute, which is not permissible." 27. It was further held that there may be some hardship or inconvenience caused to either party with strict compliance with a statu....
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....ounds, even if the statutory provision may cause hardship or inconvenience to a particular party. 27. The contention of the learned Counsel for the respondent is that by not leaving a discretion with the District Forum for extending the period of limitation for filing the response before it by the opposite party, grave injustice would be caused as there could be circumstances beyond the control of the opposite party because of which the opposite party may not be able to file the response within the period of 30 days or the extended period of 15 days. In our view, if the law so provides, the same has to be strictly complied, so as to achieve the object of the statute. It is well settled that law prevails over equity, as equity can only supplement the law, and not supplant it. 28. This Court, in the case of Laxminarayan R. Bhattad v. State of Maharashtra, (2003) 5 SCC 413, has observed that "when there is a conflict between law and equity the former shall prevail." In P.M. Latha v. State of Kerala, (2003) 3 SCC 541, this Court held that "Equity and law are twin brothers and law should be applied and interpreted equitably, but equity cannot override written or settle....
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....stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings. We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities." 30. Clearly, the above order extended the period of limitation. In the present case, Section 5(1) and 5(3) do not provide the period of limitation, but the period of validity of the Provisional Attachment Order. The same would not stand extended due to the above order of the Supreme Court. This becomes more evident from the order dated 06.05.2020 passed by the Supreme Court in I.A. 48411/2020, whereby it was pleased to extend the period of limitation prescribed under the Arbitration and Conciliation Act, 1996 and under Section 138 of the Negotiable Instruments Act, 1881, observing as under:- "IA No.48411/2020 - FOR DIRECTIONS By way of filing this application for directions, the applicant has made the following prayer: "To issue appropriate directions qua (i) arbitration proceedings in relation to section 29A of the Ar....
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....e prayed to this Court for extending the time where limitation is to expire during the period when there is a lockdown in view of COVID-19 or the time to perform a particular act is to expire during the lockdown. I.A. No. 49221/2020 -Section 29A of the Arbitration and Conciliation Act, 1996 Taken on Board. In Suo Moto Writ Petition (C) No. 3/2020, by our order dated 23.03.2020 and 06.05.2020, we ordered that all periods of limitation prescribed under the Arbitration and Conciliation Act, 1996 shall be extended w.e.f. 15.03.2020 till further orders. Learned Attorney General has sought a minor modification in the aforesaid orders. Section 29A of the Arbitration and Conciliation Act, 1996 does not prescribe a period of limitation but fixes a time to do certain acts, i.e. making an arbitral award within a prescribed time. We, accordingly, direct that the aforesaid orders shall also apply for extension of time limit for passing arbitral award under Section 29A of the said Act. Similarly, Section 23(4) of the Arbitration and Conciliation Act, 1996 provides for a time period of 6 months for the completion of the statement of claim and defence. ....
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....inks fit. Ordered accordingly. The instant applications are disposed of accordingly." (Emphasis supplied) 32. The above distinction is also apparent to the Government of India as it promulgated The Taxation and Other Laws (Relaxation of Certain Provisions) Ordinance, 2020 on 31.03.2020, extending the time limit for completion of any proceedings or passing of any order etc. specified in the Acts specified therein. However, the Prevention of Money Laundering Act, 2002 is not one of the "specified Acts" under the Ordinance. Therefore, the respondents cannot take benefit of even this Ordinance. On the other hand, the Ordinance clearly shows that the reliance of the respondents on the orders of the Supreme Court is liable to be rejected. 33. The reliance of the learned counsel for the respondents on Section 8(1) of the Act to contend that the orders of Supreme Court would apply to extend the validity of the Provisional Attachment Order, is also unfounded and is liable to be rejected. Section 8(1) does not again, provide for any period of limitation but for a period of notice. It reads as under:- 8. Adjudication.-- (1) On receipt of a complaint under sub-....
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....hysically to file such proceedings in respective Courts/Tribunals across the country including this Court. 17. The limitation for filing petitions/ applications/ suits/appeals/all other proceedings was extended to obviate lawyers /litigants to come physically to file such proceedings in respective Courts/Tribunals. The order was passed to protect the litigants/lawyers whose petitions/ applications/ suits/appeals/all other proceedings would become time barred they being not able to physically come to file such proceedings. The order was for the benefit of the litigants who have to take remedy in law as per the applicable statute for a right. The law of limitation bars the remedy but not the right. When this Court passed the above order for extending the limitation for filing petitions/ applications/ suits/appeals/all other proceedings, the order was for the benefit of those who have to take remedy, whose remedy may be barred by time because they were unable to come physically to file such proceedings. The order dated 23.03.2020 cannot be read to mean that it ever intended to extend the period of filing charge sheet by police as contemplated under Section 167(2) of the Code ....
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....personal liberty of a person. In my opinion, in a similar manner, the order dated 23.03.2020 was not meant to deny any person his/her property rights. 36. I may also usefully refer to the order of the Calcutta High Court in Knight Riders Sports Pvt. Ltd. vs. Adjudicating Authority (PMLA) and Ors., 2020 SCC OnLine Cal 1311, wherein allowing the petitioner therein to withdraw his petition, the High Court observed as under:- "5. On hearing learned counsel, this Court is of the view that under Section 5(1)(b) of the PMLA, an order of provisional attachment remains in force only for a period of 180 days from the date of the order passed by the Director with regard to the proceeds of crime which the concerned Director has reasons to believe are likely to be concealed, transferred or dealt with in a manner which may frustrate any proceedings relating to confiscation of such proceeds of crime under Chapter III of the PMLA. Section 5(3) further provides that every order of attachment made under Section 5(1) shall cease to have effect after the expiry of 180 days or on the date of an order made under Section 8(3) or whichever is earlier. Section 8(3) deals with a situation where ....