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TMI Blog2014 (6) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner to indicate the source of her income out of which or by means of which, she has acquired the property attached under Section 5(1) of the said Act. Further, it calls upon her to show cause as to why the provisional attachment order in respect of the properties should not be confirmed as representing proceeds of crime being value of the properties involved in the money laundering. 3. Sri S.K.V. Chalapathy, the learned Senior Counsel appearing for Sri R. Swaroop Anand for the petitioner submits that the Adjudicating Authority has to record the reasons for issuing the notice. As the mandatory requirement of recording the reasons is not complied with, the impugned show cause notice is liable to be quashed. He brings to my notice the provisions contained in Section 8(1) of the said Act. They are extracted hereinbelow:- "8. Adjudication (1) On receipt of a complaint under sub-section (5) of section 5, or applications made under sub-section (4) of section 17 or under sub-section (10) of section 18, if the Adjudicating Authority has reason to believe that any person has committed an offence under section 3 or is in possession of proceeds of crime, he may serve a notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such an opportunity. There is no presumption against the bona fides or the honesty of an assessee and normally the Income-tax authorities would not be justified in refusing to an assessee a reasonable opportunity of representing his views when any order to the prejudice of the normal procedure laid down in s. 64 (1) and (2) of the Act is sought to be made against him, be it a transfer from one Income-tax Officer to another within the State or from an Income-tax Officer within the State to an Income-tax Officer without it, except of course where the very object of the transfer would be frustrated if notice was given to the party affected. If the reasons for making the order are reduced however briefly to writing it will also help the assessee in appreciating the circumstances which make it necessary or desirable for the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, to transfer his case under s. 5(7A) of the Act and it will also help the court in determining the bona fides of the order as passed if and when the same is challenged in court as mala fide or discriminatory. It is to be hoped that the Income- tax authorities will observe the above procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity, in this case the Special Director, Directorate of Enforcement. Keeping this recording of reasons on the file would ensure that there has been a due application of mind to the objections raised by the noticee. This would be a necessary safeguard against forming arbitrary opinions. These recorded reasons must be furnished to the noticee, when asked for by the noticee at the time of granting a personal hearing to the noticee. This would give an opportunity to the noticee during the personal hearing to correct any erroneous view taken in forming the opinion to proceed further with the show cause notice. This would ensure that the opinion formed on the preliminary objections which would otherwise never be a subject matter of discussion/debate before the Adjudicating Authority is also a part of the order to be passed by the Adjudicating Officer. In the absence of the above, the preliminary objections would be dealt with by the Adjudicating Authority possibly only in his mind while deciding to proceed further with the notice and the reasons would never be recorded to evidence consideration of the objections. This would result in great prejudice to the noticee for more than one reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect anyone prejudicially. b. A quasi-judicial authority must record reasons in support of its conclusions. c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. g. Reasons facilitate the process of judicial review by superior Courts. h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant f acts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. i. Judicial or even quasi-judicial opinions these days can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the petitioner is not justified in invoking the writ jurisdiction only because the certified copies of certain documents are not furnished. He submits that the petitioner cannot be content merely filing a memo for the issuance of the certified copies. He is required to go to the office of the Adjudicating Authority and collect the same. Without prejudice to this submission, he submits that the memo for the issuance of the certified copy is not in the prescribed form. The requisition for the issuance of the certified copies has to be applied in Form No.10 prescribed by Regulation-6 of the said Regulations. 10. Sri Mahesh also brings to my notice the provisions contained in Regulation 16 of the said Regulations providing for the inspection of the records. The provisions contained therein read as follows:- "16. Inspection of records (a) Inspection of records, upon the application in prescribed Form No.4 shall be allowed under the orders of the Chairperson of the Adjudicating Authority, or the Registrar or the Administrative Officer, as the case may be. (b) On grant of application for inspection of the records, the administrative officer or an officer authorized in that behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a statutory liability and for which the statutory remedy is an appeal under Section 35 of FEMA, subject to the limitations contained therein. A writ petition in the facts of this case is therefore clearly not maintainable. Even if the High Court has territorial jurisdiction it should not entertain a writ petition which impugns an order of the Tribunal when such an order on a question of law, is appealable before the High Court under Section 35 of FEMA. If the appellant in this case is allowed to file a writ petition despite the existence of an efficacious remedy by way of appeal under Section 35 of FEMA this will enable him to defeat the provisions of the statute. A writ court should not encourage the aforesaid trend of bypassing a statutory provisions." 14. On instructions, Sri Kalyan S. Basavaraj, the l earned Assistant Solicitor General appearing for the respondent No.1 submits that the petitioner's request for the certified copies of the order sheet and any other documents would be processed, if the petitioner makes an application in Form No.1 0. He submits that, if the documents are not yet supplied to the petitioner, it is only on account of the application not being in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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