TaxTMI 
TaxTMI 
TaxTMI 
2025 (11) TMI 1801
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....der Section 5 of the Act of 2002 ?" 2. Before we advert to the question of law framed above, a brief reference to the background facts would be necessary. Factual Matrix 3. M/S Trison Farms and Construction is a private Ltd. Company incorporated under the Indian Companies Act, 1956, of which appellant No. 2 and his family members are promoters. The appellant No. 2 was arrested by the National Investigating Agency, New Delhi, on the allegation that he was a conduit to transfer funds received from Pakistan and the Pakistan High Commission in Delhi to various persons in Kashmir. During searches, various documents were seized by the National Investigating Agency ['NIA'] from the residence of one Gh. Mohd. Bhat which showed that appellant No. 2 had received Rs. 1,64,10,000/- during the year 2015-16 from illegitimate sources and passed it on to different persons engaged in separatist activities in Kashmir. The appellant No. 1 was not named in any FIR, ECIR or any criminal complaint. 4. Be that as it may, the Deputy Director, Directorate of Enforcement, New Delhi, the respondent No. 1 herein, passed a provisional attachment order bearing No.03 dated 11.03.2019 attaching the ba....
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....rgue that in terms of sub-section (4) of Section 26 of the Act of 2002, the Appellate Tribunal has been empowered only to pass orders confirming, modifying or setting aside the order appealed against. There is no specific power conferred upon the Appellate Tribunal to remand the matter back to the Adjudicating Authority. He would argue that the expression "pass such orders thereon as it thinks fit" would mean that the Appellate Tribunal has discretion to act either by confirming, modifying or setting aside the order appealed against and nothing beyond that. It is also argued by Mr. Jan that even if the power of remand is conceded in favour of the Appellate Tribunal, yet the Adjudicating Authority would not be in a position to confirm the order of provisional attachment made by the authorized officer, for the reason that the provisional attachment order has lapsed by efflux of time. Reference was invited to Section 5 of the Act of 2002 which in sub-section (1) provides that the order of provisional attachment of property shall remain in force for a period not exceeding 180 days from the date of the order. Drawing attention of this Court to the third proviso of sub-section (1) of Sec....
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....t out Section 26 of the Act of 2002 herein below: 26. Appeal to Appellate Tribunal: (1) Save as otherwise provided in sub-section (3), the Director or any person aggrieved by an order made by the Adjudicating Authority under this Act, may prefer an appeal to the Appellate Tribunal; (2) Any [reporting entity] aggrieved by any order of the Director made under sub-section (2) of section 13, may prefer an appeal to the Appellate Tribunal; (3) Every appeal preferred under sub-section (1) or sub-section (2) shall be filed within a period of forty-five days from the date on which a copy of the order made by the Adjudicating Authority or Director is received and it shall be in such form and be accompanied by such fee as may be prescribed: Provided that the Appellate Tribunal may, after giving an opportunity of being heard, entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period. (4) On receipt of an appeal under sub-section (1) or sub-section (2), the Appellate Tribunal may, after giving the parties to the appeal an opportunity of ....
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....d Justice Joymalya Bagchi (now a Judge of the Supreme Court) took a similar view in CRA 168 of 2024, titled Partha Chakraborti and Others v. Directorate of Enforcement, Kolkata. Paragraph 9 of the judgment is relevant and is accordingly reproduced below: "Section 26(4) of the PMLA empowers the Appellate Tribunal to pass such orders as it thinks fit including confirming, modifying or setting aside the order appealed against. The wide amplitude of the expression "such orders as it deems fit" and the word 'setting aside' clearly confers jurisdiction in the Tribunal to remand the matter as an order of remand would imply setting aside the order appealed against. Any other interpretation would give rise to a paradoxical situation where the Tribunal after setting aside an order on the ground of procedural error (i.e. breach of natural justice) as in the present case, would be rendered powerless to remand and direct fresh consideration on merits". 13. The judgment of the Division Bench of Calcutta High Court in Partha Chakraborti's case (supra) applies on all fours to the facts of instant case. In the case on hand, the appeals have been allowed by the Appellate Tribunal....
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....y imposed by the Income-tax Officer. In view of Section 251(1 Kb) of the Act it is also clear that the Appellate Assistant Commissioner was wrong in taking the view that he had no power to enhance the penalty in accordance with law on reaching the conclusion that the computation of penalty made by the Income-tax Officer was illegal, and that he could only cancel even the lesser penalty which had been imposed by the Income-tax Officer. It has now to be seen whether the question of law referred to the High Court under Section 256(1) of the Act covered this aspect". 16 In somewhat similar circumstances, the High Court of Delhi in the case of V.K. Modi (supra) has also taken a similar line of reasoning. In the aforesaid case, a single Bench of Delhi High Court was confronted with the interpretation of Section 52(3) of Foreign Exchange Regulation Act, 1973. The said provision read thus: "On receipt of an appeal under sub-section (2), the Appellate Board may, after making such further inquiry as it deems fit, confirm, modify or set aside the order appealed against and the decision of the Appellate Board shall, subject to the provisions of section 54, be final and if the sum d....
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....rs such as those vested in civil Courts or Constitutional Courts. However, the proposition put forth by learned counsel does not in any manner advance the case of the appellants. In the instant case, as we have already held, the power to remand being a concomitant power of an Appellate Authority vested with the power to annul or set aside an order appealed against, has neither been taken away nor excluded by the statute. This power is inherent in, and forms an integral part of, the power of the statutory appellate authority to annul or set aside an order under appeal. 21. The Division Bench of Karnataka High Court in the case of M/S Devas Multimedia Pvt. Ltd (supra) relied upon by the Mr. Jan, with due respect, has not considered this aspect of the matter and, thus cannot be said to have laid down a good law. The Division Bench has overlooked the fact that an order of remand necessarily annuls the decision appealed against, and such power is an essential postulate and a necessary concomitant of the power of the Appellate Authority to annul or modify the order appealed against. The other judgments relied upon by Mr. Jan do not, in any manner advance, the cause of the appellants a....