AI Drafter 
TaxTMI 
TaxTMI 
2023 (11) TMI 1295
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....interim order passed by Adjudicating Authority on 29.09.2023. By the impugned order, four applications preferred by the appellant have been decided. 2. The learned counsel for the appellant submitted that thirteen F.I.Rs were registered in the year 2013 to 2020 by certain allottees of two separate residential projects undertaken by the company namely M/s IREO Private Limited and M/s IREO Fire River Private Limited. The appellant was not named in the FIR. The respondent, Enforcement Directorate recorded ECIR on 15.06.2021 in reference to those 13 FIRs, where also appellant was not named as an accused. 3. The prosecution complaint was also filed. The appellant was not shown to be an accused therein. However, in pursuance to the authorization under section 17 (1) of the Prevention Of Money Laundering Act, 2002, herein called Act officers of the Enforcement Directorate conducted search at several places. They seized several documents, records and the property of the appellant without verifying the source of acquisition of properties. The appellant accordingly filed a Criminal Writ Petition bearing no. 1751 of 2023 before Delhi High Court against the search operation and consequen....
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....rd as per Regulation 16 to 18 of the Regulation of 2013. The extension of time for filing of reply was not allowed as the reply to show cause notice was already filed. We do not find any error in the order of the Adjudicating Authority. 11. If the record was required to be inspected before filing reply, prayer for it should have been made at the earliest so that a reply is filed after inspection of record. However, in the instant case, the reply to the show cause notice was filed by the appellant and it is only thereafter that he sought inspection of record with extension of time to file reply. The inspection was permitted but there was no question of extension of time for filing reply when reply had already been filed. It is to be noted that the proceedings before the Adjudicating Authority has to be completed within 180 days of the issuance of provisional attachment order and that too after serving a Show Cause Notice, after recording of reasons to believe, as envisaged under section 8 (1) of the Act of 2002. 12. The notice therein has to be of not less than 30 days on the person calling upon him to indicate the source of his income, earning or assets, out of which or by me....
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....Another in W.P. (C ) 5320/2017 dated 11.01.2018, but failed to rely on the same judgement on the other issue. Thus, one and the same judgement was relied by the Adjudicating Authority on one issue while denying its application on the other issue. 19. We have considered the submission made by the learned counsel for the appellant and find that the issue raised by the appellant has already been settled by Delhi High Court in the case of Gold Craft Properties Pvt. Ltd. V/s Directorate of Enforcement 2023 DHC 6887 DB. 20. The Division Bench of the High Court found that even one Member of the Adjudicating Authority is competent to pass the order. 21. The Delhi High Court in the case of Aprajita Kumari and Another Vs. Joint Director, Enforcement Directorate and Another in WP (C ) 3008/2016 decided the same issue. It was even in the case of K. Rethinam Versus Union of India and Ors. in WP No. 8115/2017. It was held that Single Member can pass an order and it is not necessary that said member should be from the Judicial side. It can be an Administrative Member as well. 22. The same view was taken by Karnataka High Court in the case of Dyani Antony Paul V/s Union of India WP No.....
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....gle witness has been examined? 4.3 Admittedly as stated in para 6 of the OA, scrutiny of the seized documents/records (including digital records) is under process which shall take time to complete and that the relevance of the documents seized has to be checked and decided. Then on what basis, the Ld. Deputy Director came to the conclusion for retention of the seized documents/records (including digital records)? 4.4 How the Ld. Deputy Director reached the conclusion that there exists a prima facie case showing connivance and involvement of the Applicants/Respondent No. 1 & 2 and other Respondents with IREO group and Lalit Goyal for Money laundering for diversion of funds as stated in para7 of the instant OA? 4.4.1 What tangible and credible evidence indicative of involvement of the respondents in any process or activity connected with the 'proceeds of crime' has come on record in terms of para 284 of the judgment titled Vijay Madanlal Choudhary v. Union of India, 2022 SCC Online SC 929? 4.4.2 Why Retention orders and the Authorizations are not attached tothe RUDs? 4.4.3 How unconnected transactions were considered to be connected with t....
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....anas Patra, Pancha/ Witness. a) Whether he knew Sh. Vineet Maheshwari, VP-Legal, who had called himbefore hand in respect of Panchnama dated 01.06.2023? b) Whether Sh. Vineet Maheshwari, VP-Legal, who had called him at the instanceof some ED official, whom he knew before hand? c) Whether he knew Mr. Sumit Upadhyay, the ED official who had called him inrespect of Panchnama dated 04.06.2023 beforehand? d) When and how was he contacted by the above officials? e) Where was he located, when he was contacted by the above official? f) As per the address mentioned in the Panchnama dated 01.06.2023, he is resident of West Bengal and no local address has been mentioned in the Panchnama. Whether he came all the way from West Bengal? g) In the Panchnama dated 04.06.2023, address of Gurugram has been mentioned,why different addresses are mentioned in two panchnamas? h) How much time did it take for him to reach the place of search? i) Whether he was told the purpose as to why he was being called by the aboveED official? j) Whether he was aware of his role as Pancha and he understood the process ofsearch or....
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....erstanding the contents of the Panchnama or he was forced to sign the Panchnama? 26. The appellant have framed the issues for cross examination, however, prayer for cross examination of persons named in the application was not accepted by the Adjudicating Authority and therefore the impugned order has been challenged even in reference to it. 27. The prayer to seek cross examination of the Officers and Panchas has been seriously contested by the respondents and accordingly we would deal with the issue after considering the rival submissions. 28. Before we address the issue, it would be relevant to refer that proceedings under section 8 of the Act of 2002 are summary in nature. Once the order of provisional attachment of the properties is issued by the Enforcement Directorate, copy of it is to be sent to the Adjudicating Authority for passing order within 180 days from the date of the order of provisional attachment. 29. The Adjudicating Authority, before proceeding further in reference to the provisional attachment order, is to draw a show cause notice. It should contain reasons to believe and thereupon to be served to the person whose properties have been attached. It i....
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.... any proceeding under this Act.] (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, along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority, in a sealed envelope, in the manner as may be prescribed and such Adjudicating Authority shall keep such order and material for such period as may be prescribed. (3) Every order of attachment made under sub-section (1) shall cease to have effect after the expiry of the period specified in that sub-section or on the date of an order made under sub-section (2) of section 8, whichever is earlier. (4) Nothing in this section shall prevent the person interested in the enjoyment of the immovable property attached under sub-section (1) from such enjoyment. Explanation.- For the purposes of this sub-section "person interested", in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property. (5) The Director or any other officer who provisionally attaches any property under sub-section (1) s....
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....examination pre-supposes examination in Chief of the witness. Thus, application for the cross examination was made only to gain time so that attachment order may lapse. The cross examination is permitted in quasi judicial proceedings, but when the testimony of the witness is relied by the parties. 34. In view of the above, when statement of witness sought to be cross examined does not exist, question of cross examination would not arise. The issue of principle of natural justice in reference to cross examination was decided by the Apex Court in the case of Kanungo & Company V/s Collector of Customs & Others reported in 1972 SC 2136 Para 12 of judgement is quoted here under:- 12. We may first deal with the question of breach of natural justice. On the material on record, in our opinion, there has been no such breach. In the showcause notice issued on August 21, 1961, all the material on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it t....
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.... Any interference by us at this stage in the proceedings of which the Adjudicating Authority is seized is thus uncalled for and would result in a situation which the Supreme Court has warned the High Courts to avoid." 36. We have been informed now that the Adjudicating Authority has already passed the final order on 8th November, 2023 and a copy of it has been supplied to the Tribunal. The order was passed before giving written arguments by the appellant for which liberty was sought and granted by the Tribunal. The written arguments were given on 10th November, 2023. In any case, we do not find that denial of opportunity of cross examination has caused any prejudice to the appellant. It is for the reason that statements of the persons sought to be cross examined were not recorded so as to rely their testimony. 37. It is apart from the fact that the Regulation does not provide for cross examination of a person whose statement or the testimony was not recorded at any time and specifically during the course of investigation. The appellant has cited many judgements on the principle of natural justice and we agree with the proposition of Law, but cross examination in summar....