TaxTMI 
TaxTMI 
2020 (12) TMI 1097
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....ion of the attached property to the appellant on or before 07.12.2020. Respondents are facing proceedings under the Prevention of Money Laundering Act, 2002 (hereinafter referred to as "PMLA"). Appellant issued Provisional Attachment Order (PAO) No. 02/2019 and filed Original Complaint (OC) before the Adjudicating Authority for confirmation, which was confirmed vide order 25.09.2019. Said order dated 25.09.2019 was challenged before the Appellate Tribunal by respondent No.2 (Abhay Singh Chautala) as Pairokar (exponent/proponent). Thereafter, an application was moved by respondent No.2 for impleading him as Intervenor as appellant No.2, which was allowed vide order dated 22.10.2020. Respondents No.1 and 2 filed two separate applications for seeking interim restoration of the attached property, which were allowed vide order dated 22.10.2020, directing the appellant to de-seal the attached property within a period of two weeks and to hand over the possession to the Intervenor (respondent No.2) for the purpose of marriage with certain conditions. It was also directed that the possession of the property be handed over by 07.12.2020 as said property was to be used for the purpose of ma....
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.... have been allowed contrary to the provisions of Section 3 and Section 8(4) of PMLA as in absence of any opportunity granted for hearing, the appellant could not rebut the contentions raised by the counsel for the respondents. Even the relevant provisions of law have not been rightly appreciated. Wrong findings have been recorded that respondent No.2 was not aware about the proceedings and no notice was ever issued to him, whereas in total 17 notices were sent and 10 replies were also filed by him. The finding that he was not aware about the proceedings pending before the E.D. is totally wrong and contrary to the facts/record. Learned counsel also submits that in the impugned order only the relevant provisions of PMLA and Rules 2013 have been mentioned but the same have not been discussed/appreciated at all. It is also the argument of learned counsel for the appellant that while passing the impugned order, the statutory provisions of law have not been taken into consideration. Learned counsel also submits that a wrong finding has been recorded that share of the respondents was not determined, whereas in the Original Complaint as well as in the provisional attachment order, the sha....
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.... Tribunal, Prevention of Money Laundering, Department of Revenue and others CMA No.1451 of 2015 M.P. No.1 of 2015 decided on 29.04.2019 and order dated 23.12.2019 passed by the Appellate Tribunal for SAFEMA, NDPS FEMA, NDPS, PMLA & PBPT Act, at New Delhi in case MP-PMLA-6767/CHD/2019 (U.H.) titled as Om Parkash Chautala Vs. The Joint Director, Directorate of Enforcement, Chandigarh, in support of his arguments. Heard arguments of learned counsel for the parties. We have also perused the provisional attachment order, both the orders passed by the Appellate Tribunal i.e. order dated 22.10.2020 as well as the impugned order dated 18.11.2020 (Annexure A-1) and the order of remand passed by this Court dated 17.11.2020. The issue for determination by this Court is : "Whether the property attached under Section 5 of PMLA and as confirmed under Section 8 of PMLA can be de-sealed/released on interim basis by the Appellate Tribunal during pendency of the proceedings?" Sections 3 (with explanation), 5 and 8 of PMLA are relevant to decide the present controversy, which are reproduced as under:- "3. Offence of money-laundering.- Whosoever directly or indirectly attempts to indulge or kn....
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....fence, as the case may be, or a similar report or complaint has been made or filed under the corresponding law of any other country: Provided further that, notwithstanding anything contained in [first proviso], any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that if such property involved in money-laundering is not attached immediately under this Chapter, the 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.] (2) The Director, or any other officer not below the rank of Deputy Director, shall, immediately after attachment under sub-section (1), forward a copy of the order, a....
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....ll, after - (a) considering the reply, if any, to the notice issued under subsection (1); (b) hearing the aggrieved person and the Director or any other officer authorised by him in this behalf, and (c) taking into account all relevant materials placed on record before him, by an order, record a finding whether all or any of the properties referred to in the notice issued under sub-section (1) are involved in money-laundering: Provided that if the property is claimed by a person, other than a person to whom the notice had been issued, such person shall also be given an opportunity of being heard to prove that the property is not involved in money-laundering. (3) Where the Adjudicating Authority decides under sub-section (2) that any property is involved in money-laundering, he shall, by an order in writing, confirm the attachment of the property made under sub-section (1) of section 5 or retention of property or [record seized or frozen under section 17 or section 18 and record a finding to that effect, whereupon such attachment or retention or freezing of the seized or frozen property] or record shall - (a) continue during [investigation for a period not exceedin....
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.... case may be, involved in the offence of money laundering after having regard to the material placed before it.] [(8) Where a property stands confiscated to the Central Government under sub-section (5), the Special Court, in such manner as may be prescribed, may also direct the Central Government to restore such confiscated property or part thereof of a claimant with a legitimate interest in the property, who may have suffered a quantifiable loss as a result of the offence of money laundering: Provided that the special court shall not consider such claim unless it is satisfied that the claimant has acted in good faith and has suffered the loss despite having taken all reasonable precautions and is not involved in the offence of money laundering.] [Provided further that the Special Court may, if it thinks fit, consider the claim of the claimant for the purposes of restoration of such properties during the trial of the case in such manner as may be prescribed.]" A perusal of Section 3 of PMLA as well as explanation thereof shows that in case any person, directly or indirectly, has enjoyed the proceeds of crime by way of concealment or acquisition or use or projecting it as untain....
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....emporarily for the use of the accused persons. As per the order passed by this Court, both the parties were directed to appear before the Appellate Tribunal on 18.11.2020. The case was fixed only for appearance of the parties. The case should have been adjourned for any other date for arguments and for production of record but the impugned order was passed on that very day without going through the record and without giving opportunity of hearing to the parties as well. Learned counsel for the appellant as well as respondents have relied upon Andhra Pradesh High Court's judgment in B. Rama Raju's case (supra). This judgment is not going to help the respondents. Rather the judgment is in favour of the appellant. In said case, the vires under Section 2(1)(u) were challenged. It was held that provisions of Section 8 (4) are neither arbitrary nor disproportionate to the object sought to be achieved by the provisions of PMLA. It was also held that provisions of Section 8(4) are reasonable and unimpeachable and the challenge to Section 8 of PMLA must therefore fail. The order passed by the Appellate Tribunal has been relied upon by learned counsel for the respondents, which is ....