TaxTMI 
TaxTMI 
2022 (11) TMI 3
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....ercise of the powers conferred under the PMLA, the appellant seized an amount of Rs.106,93,84,385/- (Rupees One Hundred and Six Crores Ninety Three Lakhs Eighty Four Thousand Three Hundred Eighty Five only) vide seizure order dated 26.08.2021 [later corrected as Rs.87,84,26,805/- (Rupees Eighty Seven Crores Eighty Four Lakhs Twenty Six Thousand Eight Hundred and Five Only)] vide letter dated 12.10.2021 to Commissioner of Customs (Appeals-I), and an amount of approximately Rs.51,22,88,087/- (Rupees Fifty One Crores and Twenty Two Lakhs Eighty Eight Thousand and Eighty Seven Only) under Section 37A(1) of Foreign Exchange Management Act, 1999 (FEMA) vide Seizure Orders dated 26.08.2021, 30.09.2021 and 15.12.2001. 3. The respondent No.1 company preferred a Writ Petition No.36212/2021 before the High Court of Telangana praying for quashment of the impugned Seizure Orders and directing release of the properties which have been seized, and the learned Single Judge vide order dated 11.02.2022 passed in the said writ petition, i.e. W.P.(C.) No. 36212/2021 directed release of Rs.15,35,45,317/- (Rupees Fifteen Crores Thirty Five Lakhs forty Five Thousand Three Hundred and Seventeen Only). 4....
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....by the learned Single Judge and, therefore, he will not press for the interim order which was passed on 31.05.2022, meaning thereby, he will not file any contempt petition. 2. Mr. Vikramjeet Banarjee, learned ASG, also very fairly states that the present LPA may be disposed of with a request to the learned Single Judge to decide the matter at an early date, which is coming up for hearing before the learned Single Judge on 29.08.2022. 3. Resultantly, the present LPA stands disposed of with liberty to the parties to argue the matter on 29.08.2022 before the learned Single Judge. The learned Single Judge is requested to decide the matter at an early date. 4. Pending applications stand disposed of." 9. It is reiterated that the order was passed by this Court requesting the learned Single Judge to decide the matter on merits only because at the relevant point of time, the Tribunal was not functional. On 13.09.2022, the writ petition came up before the learned Single Judge and it was brought to the notice of the learned Single Judge that the Tribunal has become functional. However, the learned Single Judge has passed the order directing further hearing of the matter. The order dat....
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....t the relevant point of time when the order was passed by the Division Bench, no Tribunal was functional. 13. The Hon'ble Supreme Court in Titaghur Paper Mills Co. Ltd. and Another Vs. State of Orissa and Others, (1983) 2 SCC 433, has, inter alia, held as under: "6. We are constrained to dismiss these petitions on the short ground that the petitioners have an equally efficacious alternative remedy by way of an appeal to the Prescribed Authority under sub-section (1) of Section 23 of the Act, then a second appeal to the Tribunal under sub-section (3)(a) thereof, and thereafter in the event the petitioners get no relief, to have the case stated to the High Court under Section 24 of the Act... ... ... ... ... " 14. The Hon'ble Supreme Court in Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. And Others, (1985) 1 SCC 260, by placing reliance on Titaghur Paper Mills (supra) has, inter alia, held as under: "3. In Titaghur Paper Mills Co. Ltd. v. State of Orissa [(1983) 2 SCC 433 : 1983 SCC (Tax) 131 : 1983 Tax LR 2905 : (1983) 142 ITR 663 : (1983) 53 STC 315] A.P. Sen, E.S. Venkataramiah and R.B. Misra, JJ. held that where the statute itself....
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....r Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act." 16. The Hon'ble Supreme Court in Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement and Another, (2010) 4 SCC 772, has observed as under: "39. ... ... ... If the appellant in this case is allowed to file a writ petition despite the existence of an efficacious remedy by way of appeal under Section 35 of FEMA this will enable him to defeat the provisions of the statute which may provide for certain conditions for fil....
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....d under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance." 18. The Hon'ble Supreme Court in Commissioner of Income Tax and Others Vs. Chhabil Dass Agarwal, (2014) 1 SCC 603, has, inter alia, observed as under: "10. In the instant case, the only question which arises for our consideration and decision is whether the High Court was justified in interfering with the order passed by the assessing authority under Section 148 of the Act in exercise of its jurisdiction under Article 226 when an equally efficacious alternate remedy was available to the assessee under the Act. 11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, i....
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....ncome 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. v. State of Haryana [(1985) 3 SCC 267] this Court has noticed that if an appeal is from "Caesar to Caesar's wife" the existence of alternative remedy would be a mirage and an exercise in futility. 17. In the instant case, neither has the writ petitioner assessee described the available alternate remedy under the Act as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of the instant case. ... ... ..." 19. The Hon'ble Supreme Court in State of Maharashtra and Others Vs. Greatship (India) Limited, (2022) SCC OnLine SC 1262, has, inter alia, observed as under: "14. At the outset, it is required to be noted that against the assessment order passed by the Assessing Officer under the provisions of the MVAT Act and CST Act, the assessee straightway preferred writ petition under Article 226 of the Constitution of India. It is not in dispute that the statutes provide for the right of ap....
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.... Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short "the Act‟). The High Court ought not to have exercised its jurisdiction under Article 227 in view of the provision for alternative remedy contained in the Act. We do not propose to go into the correctness of the decision of the High Court and whether the order passed by the Tribunal was correct or not has to be decided before an appropriate forum. 6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the Court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said cons....
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....ic policy or barred by any valid law; and host of other factors. The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the Court and particularly in cases where public revenue and public interest are involved. Such directions are always required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter-affidavit opposing the writ petition. Further, empty and self-defeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public law remedy to which he is not otherwise entitled to in law." 53. In Raj Kumar Shivhare v. Directorate of Enforcement [(2010) 4 SCC 772] the Court was dealing with the issue whether the alternative statutory remedy available under the Foreign Exchange Management Act, 1999 can be bypassed and jurisdiction under Article 226 of the Constitution could be invoked. After examining the scheme of the Act, the Court observed : (SCC....
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.... their grievances. Furthermore, at the stage of provisional attachment, the person concerned is not divested of the property, but is only prevented from dealing with the same till orders are passed by the adjudicating authority under Section 8(2). Against order of adjudicating authority appeal shall lie to the Appellate Tribunal under Section 26 and further appeal to High Court under Section 42, the statute has provided enough safeguards and redressal mechanism. The writ court cannot go into the merits of the issue at this stage even before attachment order has become final, investigation is completed, trial concluded and issue of attachment is considered by Adjudicating Authority, Appellate Authority and second Appellate Authority. x x x x x x x x x 12. It is trite law that Article 226 of the Constitution of India vests wide discretion in the Writ Court to entertain the writ petition on any grievance and to grant appropriate relief. It is an extraordinary jurisdiction vested in the writ Court. The Writ Courts observe self-imposed restraint in exercising the jurisdiction under Article 226. Availability of alternative remedy is not a bar to entertain a writ petition. However, ord....
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....ciple of law that if an order of a competent authority is bereft of reasons, the appellate authority is denuded of its statutory jurisdiction to entertain the appeal. However, brevity of reasoning cannot be understood in legal parlance as absence of reasoning. While no reasoning in support of order whether judicial/quasi-judicial order is impermissible, the brief reasoning would suffice to meet the ends of justice at least at interlocutory stages and would render the remedy of appeal purposeful and meaningful. x x x x x x x x x 9. In Satyawati Tondon (supra) the Supreme Court while dealing with the maintainability of the writ petition in view of the availability of alternate remedy held that it is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision etc. and the particular legislation contains a detailed mechanism for redressal of his grievance and only if the peti....