TaxTMI 
TaxTMI 
2022 (9) TMI 1423
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.... validity of the Provisional Attachment Order ["PAO"] passed by the respondent Directorate. A challenge is further laid to the proceedings initiated by the Adjudicating Authority for confirmation in terms of the provisions made in the Prevention of Money Laundering Act, 2002 ["PMLA"]. 2. Mr. Nandrajog, learned Senior Counsel appearing in support of the writ petition, has drawn the attention of the Court to the orders passed in W.P.(C) 1473/2021, W.P.(C) 3605/2022, W.P.(C) 6018/2022, W.P.(C) 1126/2022 and W.P.(C) 1473/2021 to contend that the principal allegations in the ECIR were levelled against one Carnoustie Management India Pvt. Ltd. against whom five separate PAOs came to be made. Learned Senior Counsel pointed out that Carnoustie Management India Pvt. Ltd. had assailed the validity of the aforesaid PAOs before this Court and which challenge has been duly entertained by this Court and interim orders made to the effect that while it would be free for the Adjudicating Authority to pass a final order, the same would not be implemented without the leave of the Court. Before this Court it is common ground that the principal ground on which Carnoustie Management India Pvt. Ltd. ass....
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....f finance, accountancy or administration as may be prescribed. It is, therefore, not the case that all the members of the AA should be judicial members. 80. It is seen that under Section 5 PMLA, the jurisdiction of the AA "may be exercised by the Benches thereof". Under Section 6(5)(b) PMLA, a Bench may be constituted by the Chairperson of the AA "with one or two members" as the Chairperson may deem fit. Therefore, it is possible to have single-member benches. The word „bench‟ therefore does not connote plurality. There could, even under Section 6(5)(b) PMLA, be a „single member bench‟. When Section 6(6) PMLA states that a Chairperson can transfer a member from one bench to another bench, it has to be understood in the above context of there also being single-member benches. 81. The Court is unable to agree with the submission that since the Adjudicating Authority (Procedure) Regulations 2013 requires every order-sheet to have the signatures of the Chairperson and members constituting the bench, it necessarily means that every matter has to be heard by a bench comprising the Chairperson and members. This would be an erroneous interpretation which is co....
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....e AT. Even so, such an AT is not the equivalent to the High Court since an appeal against the order of the AT is provided to the High Court itself. Thus, the hierarchy of judicial review authorities under the PMLA presents a very different scheme from what is found in other statutes, particularly the ATA. 85. Under the PMLA, however, we first have a decision by an authority under Section 5(1) PMLA. Then we have a review of that decision by the AA under Section 8 PMLA. Then we have an appeal against that decision to the AT under Section 25 PMLA. These authorities, i.e. the AA and the AT, need not be entirely manned only by JMs. They can be AMs as well. 86. No two tribunals are alike. The National Company Law Tribunal (NCLT) comprises of both JMs and AMs. The circumstances under which the Supreme Court insisted that a Bench of the NCLT should be presided over by a JM is that the NCLT seeks to exercise the powers earlier vested in a High Court. That is not the case as far as the PMLA is concerned. Neither the AA nor the AT exercises the power that would otherwise be available to a High Court. That power, in fact, remains with the High Court in an expanded capacity. Under Section....
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....ten the process of taking possession of such property. The principle set out in Section 5(4) of the 2002 Act needs to be extended even after confirmation of provisional attachment order until a formal confiscation order is passed. Section 5(4) clearly states that nothing in Section 5 including the order of provisional attachment shall prevent the person interested in the enjoyment of immovable property attached under sub-section (1) from such enjoyment. The need to take possession of the attached property would arise only for giving effect to the order of confiscation. This is also because sub-section (6) of Section 8 postulates that where on conclusion of a trial under the 2002 Act which is obviously in respect of offence of money-laundering, the Special Court finds that the offence of money-laundering has not taken place or the property is not involved in money-laundering, it shall order release of such property to the person entitled to receive it. Once the possession of the property is taken in terms of sub-section (4) and the finding in favour of the person is rendered by the Special Court thereafter and during the interregnum if the property changes hands and title vest in so....