TaxTMI 
TaxTMI 
2023 (1) TMI 1460
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....alit Katariya and Ms Pooja Jhaveri i/b Katariya & Associates for Appellant in FA/338/2022. Mr. Hiten Venegavkar a/w Mr. Bharat Mirchandani for Respondent No.1. P.C. : 1. Appellant, in the first appeal is impugning an order dated 31st December 2020 passed by the Appellate Tribunal for SAFEMA, FEMA, PMLA, NDPS & PBPT Act, at New Delhi, while considering the appeal that appellant had filed against an order dated 16th January 2019 passed by the Adjudicating Authority confirming provisional attachment order (PAO) No.11 of 2018 dated 31st July 2018. Respondent to the appeal, i.e., Directorate of Enforcement (PMLA) Chennai, have registered a case against various individuals/ firms / company for commission of offence under the provisions o....
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....thout recording in writing that it had reason to believe that the secured assets were the proceeds of crime and that they were likely to be transferred or dealt with in any manner which may frustrate any proceedings relating to confiscation thereof ? (e) Whether the respondent could have passed the provisional attachment order in the absence of any allegation that the appellant or its officers committed any offence ? (f)Whether the secured assets are the proceeds of crime ? (g) Whether the secured assets are likely to be transferred or dealt with in any manner which may frustrate any proceedings relating to confiscation thereof ? (h) Whether the respondent has adequate reason to believe that the subject p....
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....operties forthwith. (c) The main object of PMLA is to prevent money laundering and to provide for confiscation of property derived from, or involved in, money laundering and for matters connected therewith on incidental thereto. As a matter of fact, the properties attached by the Directorate of Enforcement are involved in money laundering or proceeds of crime and the same shall be considered as case properties which are liable to be confiscated by the Special Court (PMLA) after successful prosecution. (d) The PMLA provides for overriding effect to the provisions of Act. Section 71 of the PMLA clearly lays down that, "the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in ....
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.... in derogation of the other with regard to the assets respecting which there is material available to show the same to have been "derived or obtained" as a result of "criminal activity relating to a scheduled offence" and consequently being "proceeds of crime", within the mischief of PMLA. (xii). An order of attachment under PMLA is not illegal only because a secured creditor has a prior secured interest (charge) in the property, within the meaning of the expressions used in RDBA and SARFAESI Act. Similarly, mere issuance of an order of attachment under PMLA does not ipso facto render illegal a prior charge or encumbrance of a secured creditor, the claim of the latter for release (or restoration) from PMLA attachment being dependen....
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....High Court. (k) The attachment has been confirmed and the issue of confiscation is pending with the Trial Court in the CC No.20/2019 the request of petitioner is not fit to be considered at this juncture. (l) Property can be disposed by the Trial Court dealing with the prosecution complaint in which the issue of confiscation is to be decided by way of filing an application by petitioner herein under Section 8(7) or 8(8) in CC No.20/2019. 5. Prima facie, considering the appeal memo and interim application, it does appear that properties of additional respondent no.1 and additional respondent no.2 as mentioned in paragraph 1 of the appeal memo, have been charged / mortgaged to appellant. It is possible that additional res....