TaxTMI 
TaxTMI 
TaxTMI 
2022 (12) TMI 15
X X X X Extracts X X X X
X X X X Extracts X X X X
.... S. Ramachandran, M/s. T. Kokilavanee, Mr. G. Guruprasath COMMON ORDER Since the issue raised in these writ petitions is common, with the consent of learned counsel appearing for both sides, both these writ petitions were heard together and are disposed of by this common order. 2. The petitioner in both the writ petitions is the Assistant Director, Office of the Joint Director, Directorate of Enforcement, Chennai Zone-II, Chennai. 3. The first respondent in W.P.No.13114 of 2022 and the third respondent in W.P.No.25098 of 2022 is one and the same, who is the alleged contravener. Hence, for better understanding, he may be referred to as 'the alleged contravener'. 4. It is the case of the petitioner department that the alleged con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y in these writ petitions. 10. It is pointed out by Mr.B.Kumar, learned Senior Counsel appearing for the alleged contravener that, when the first writ petition i.e., W.P.No.13114 of 2022 was moved during the Vacation Court on 18.05.2022, it was the submission made on the behalf of the petitioner department that, the Appellate Tribunal was not functioning for a long time and since the alleged contravener may possibly divert these Indian assets amounting to Rs.294 Crores, it would cause great loss to the Government and would also affect the ongoing investigation. Therefore, by considering the submission made by the petitioner department, a learned Judge of this Court passed an order on 18.05.2022, granting interim stay of the operation of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing for the petitioner department would submit that, no doubt, on the date when these two writ petitions were moved, the Tribunal was not functioning and that was the main reason for the petitioner department to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. However, only on considering the merits of the case, this Court had granted interim orders of stay in respect of these two writ petitions and by virtue of the interim orders granted, the orders passed by the Authorized Officer under Section 37A(1) of the FEMA Act are restored. Therefore, the petitioner department's interest is protected as of now. Otherwise, the alleged contravener may meddle with the shares as well as the immovab....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., who is the former Hon'ble Chief Justice of this Court, was appointed only in the last week of September, 2022 and he has taken charge of the Tribunal only on 26.09.2022. 18. These two writ petitions were filed and moved on 16.05.2022 and 14.09.2022 respectively and on these two occasions, the Tribunal, admittedly, was not functioning. Therefore, there was every justification on the part of the petitioner department to move these writ petitions during the relevant point of time. However, the Tribunal has started functioning from 26.09.2022 and since the said Tribunal is a National Level Tribunal headed by a former Chief Justice of the High Court and which is also an effective appeal forum statutorily established under he provisions of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....riod of 60 days from the date of communication of the appeal order. 22. Therefore, the parties aggrieved against the order to be passed by the Tribunal can very well invoke the further appeal provision under Section 35 of the FEMA Act to prefer an appeal to the High Court. Therefore, instead of filing a second appeal, the petitioner has taken the route of filing the appeal by way of these two writ petitions, which is not acceptable. 23. Thus, the very remedy available to both the parties to go before the Appellate Tribunal would be unnecessarily lost, which would go against the very scheme of the Act, under which, the order to be passed by the Authorized Officer has to be approved by the Competent Authority and the order of the Competent ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lined to pass the following orders:- (i) Since the petitioner department can very well file an appeal under Section 37A(5) of the FEMA Act before the Appellate Tribunal, both these writ petitions cannot be proceeded further by this Court to decide the issue on merits by invoking the extraordinary power under Article 226 of the Constitution of India. (ii) The petitioner department is granted liberty to prefer an appeal before the Tribunal under Section 37A(5) of the FEMA Act, within a period of 45 days from the date of receipt of a copy of this order, where it is open to the petitioner to seek for any interim order. (iii) Till such time, i.e, till the petitioner approaches the Tribunal, there shall be an interim protection to the effec....