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Judgment
S.No.,"Name       Â
of  Bank",Account No.,"Name  Â
of
Account
Holder","Balance
amount as in Rs.
1.,"State Bank of India,
Naraingarh, Chandigarh,
Nahan Road, Naraingarh",11117173970,"Shri  Hem
Raj  Singh
and    Â
his wife Â
Smt. Suman",1312907.74
2.,"State Bank of India,
Naraingarh, Chandigarh,
Nahan Road, Naraingarh
District Ambala",1111786130,"Shri  Hem
Raj  Singh
and    Â
his wife Â
Smt. Suman",900502.86
3.,"HDFCÂ Â Â Bank
Limited, Shingar Palace
Complex Nicholson
Rd.,  Ambala Cannt.",01311000095004,"Shri  Hem
Raj Singh",20170.98
4.,"Canara Bank
Sector    17C
Chandigarh",0385101035231,"Shri  Hem
Raj Singh",46897.34
5.,"PNB, Naraingarh,
District Ambala",27330001001039300,"Shri  Hem
Raj Singh","63,545
,,TOTAL,,"23,44,023.92
before this Tribunal, therefore the Department was not represented and/or heard at the time of passing of order dated 09.09.2015 and that the fact",,,,
that the appellant in the main appeal had outstanding dues of the Income Tax Department to the tune of more than Rs. 11.03 crores plus interest could,,,,
not be brought to the notice of Tribunal at the time of passing of order dated 09.09.2015.,,,,
The appellants in the main appeal, namely, Shri Hemraj Singh and Smt. Suman in the reply have contended that Tribunal would be justified in not",,,,
entertaining the application under section 35 of the PML Act, 2002 r/w section 151,152 & 153 of the CPC for recalling the order dated 09.09.2015 as",,,,
section 35(1) of the PML Act, 2002 provides that the Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil",,,,
Procedure, 1908 (5) but shall be guided by the principles of natural justice and subject to the other provisions of this Act, the Appellate Tribunal shall",,,,
have powers to regulate its own procedure.,,,,
It has further been contended that even under section 35(2) of PML Act, 2002 which provides that the Appellate Tribunal shall have the same powers",,,,
as are vested in a civil court under the Code of Civil Procedure, 1908 in respect of reviewing its decision, the same are applicable only while tying a",,,,
suit and cannot be extended to a situation in which final order has already been passed by the Tribunal.,,,,
They have also contended that the provisions of section 35 r/w sections 151,152 & 153 of CPC do not allow any third party to approach this Tribunal",,,,
recalling the directions contained in its order dated 09.09.2015. They further contended that the application has been filed by the Assistant,,,,
Commissioner of Income Tax after a lapse of more than 250 days from the date of final order which has become final. They prayed for dismissal of,,,,
the application filed by the Assistant Commissioner of Income Tax as not maintainable.,,,,
The Directorate of Enforcement- respondent in the main appeal FPA-574/CHD/2014 and FPA-575/CHD/2014 has contended that the appellants in,,,,
the main appeal have not disputed that there are outstanding dues of more than 11.06 crores plus interest of Income Tax Department against them and,,,,
that the Tribunal has powers of civil court in terms of section 35(2) and section 35(3) of PML Act, 2002 and by virtue of that the Appellate Tribunal",,,,
has power to attach the properties of the non-applicant in possession of Enforcement Directorate and release the same in favour of Income Tax,,,,
Department to ensure recovery of legitimate government dues. The respondent relied upon Hon’ble Supreme Court Judgement inL akshan,,,,
Swarup Om Prakash vs. Union of India and others 1998 (229) ITR 662 (SC i)n which Hon’ble Supreme Court was seized of a similar situation,,,,
and held that application filed for recovery of government dues in court is maintainable by virtue of section 226(4) of the Act. They have also relied,,,,
upon the judgment of the full bench of Madras High Court in Manickam Chettiyar vs. Income Tax Officer (1938) 6 ITR 180 (Mad) (FB) in which it,,,,
was held that the crown has right of priority in payment of dues due to it and the court should exercise its inherent power so as to render justice for,,,,
the recovery of crown. Hon’ble Apex Court in Income Tax Officer, Cannanore vs. M.K. Mohammed Kunhi (1969) 71 ITR 815 (SC )has also",,,,
been relied upon to bring home the point that power to do justice and to protect the interest of the Government revenue is an incidental or ancillary,,,,
power which even otherwise dehors section 35 (3) of the PML Act vests with the Hon’ble Tribunal.,,,,
It is an undisputed fact in this case that a final order in this case has been passed by this Tribunal on 09.09.2015 setting aside the provisional,,,,
attachment order as well as the confirmation order in respect of impugned properties with directions to the respondent to release/handover the,,,,
possession of properties to the appellant in the main appeal within a period of one month from the date of the said order. While the final order of the,,,,
Tribunal has not yet been implemented the Income Tax Authorities have pleaded for directions to handover the possession of the attached properties,,,,
to them in view of the large amount of dues pending against appellants in the main appeal. The grounds extended by the Income Tax Authorities viz.,,,,
lack of information and knowledge on their part about the proceedings in the main appeals before this Tribunal, late communication of the final order",,,,
dated 09.09.2015 of this Tribunal to them by the Directorate of Enforcement have no force to carry forward their prayers in the Misc. Applications,,,,
under consideration as they cannot be given the benefit of their own lack of knowledge or communication between two departments for seeking any,,,,
relief from this Appellate Tribunal. Further, it is also on record in their Misc. Applications that Judicial Magistrate, Chandigarh vide order dated",,,,
17.01.2015 had directed the Income Tax Department and the Directorate of Enforcement to file a reply with regard to the fact that, if any",,,,
proceedings before the said authorities were pending in which the properties of the present case are also attached or otherwise required. Thus the,,,,
Income Tax Department was made aware of the attachment of the properties by the Hon’ble Court of Judicial Magistrate, Chandigarh in as early",,,,
as January, 2015. They should have agitated their stand and prayers regarding recovery from the properties of the appellants in the main appeal",,,,
attached under Prevention of Money Laundering Act before all the relevant forum including this Tribunal well within a shortest possible time without,,,,
waiting for final order to have been passed by this Tribunal and communicated to them by the Enforcement Directorate. No relief can be provided to,,,,
them at this stage in their applications dated 25.05.2016 when the final order had already been passed by the Tribunal about 7 months before on,,,,
09.09.2015.,,,,
As regards the legal provisions of section 35 of PML Act, it is clear as also pointed out by the learned counsel for the appellants in the main appeal",,,,
that this Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but for the purposes of discharging its",,,,
function it shall have the same powers as are vested in the civil court while trying a suit. These powers include the powers of reviewing its own,,,,
decision also. However such powers can be exercised only while trying a suit, that is when the Appellate proceedings are in progress before this",,,,
Tribunal. Such powers thus under no circumstances can be exercised after the final order has been issued by this Tribunal.,,,,
As regards the contentions of the Directorate of Enforcement relying upon various judgments of Hon’ble Supreme Court and other High Courts,,,,
that the applications filed for recovery of government dues in court is maintainable and the Tribunal has incidental or ancillary powers to do justice and,,,,
to protect the interest of government revenue, we find that judgment of the Hon’ble Supreme Court in the case of Lakshan Swarup Om Prakash",,,,
vs. Union of India and others 1998 (229) ITR 662 (SC )has been delivered in a different context where certain amounts deposited in the court had,,,,
been ordered to be decreed in favour of creditors. As against that in this case there was no such amount deposited with this Tribunal and the order,,,,
dated 09.09.2015 directed for its release to the appellants rather than appropriation among one or more agencies. The Hon’ble Supreme Court in,,,,
the case of Income Tax Officer vs. M.K. Mohammed Kunhi which was also relied upoin in Chandra Paper Industries vs. DCTO and others has held,,,,
that the Income Tax Appellate Tribunal have the power to grant stay as incidental or ancillary to its Appellate jurisdiction even though there is no such,,,,
empowerment conferred on the Appellate Tribunal in the Income Tax Act. With due respect, these judgments are not applicable in the present case",,,,
as the issue in hand is not whether this Appellate Tribunal has power to grant stay or not but is whether this Tribunal can entertain a Misc. Application,,,,
moved after a final order has been passed by it in an appeal. Therefore judgments cited by the learned counsel for the Directorate of Enforcement,,,,
have no relevance in this case.,,,,
In view of the above it is held that the Misc. Applications no. MP-PMLA-2561/CHD/2016 (Misc.) & MP-PMLA-2562/CHD/2016 (Misc.) are not,,,,
maintainable and are accordingly dismissed.,,,,
The Misc. Applications no. MP-PMLA-2507/CHD/2016 (U/s 35) & MP-PMLA-2507A/CHD/2016 (U/s 35) moved by the applicants in the main,,,,
appeals for implementation of the order dated 09.09.2015 of this Appellate Tribunal are allowed and the respondent in the main appeals are directed to,,,,
release/handover the possession of the attached properties, possession of which was taken by the Directorate of Enforcement, to the appellants within",,,,
a period of one month from the date of this order, along with accretions, if any. With these orders all the pending applications are disposed of.",,,,
Parties to bear their own cost.,,,,