TMI Blog2021 (5) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... ated against the petitioner as without jurisdiction and ultra wires of the Act of 2002 - While passing the order on 20.09.2017, the Division Bench noticed that the saving account had already been seized and so far as apprehension of coercive steps are concerned the petitioner was left free to move appropriate application subsequently. The preliminary objection raised by the respondent regarding maintainability of the second stay application that it goes beyond the scope of the writ petition, is found to be without basis. The petitioner has by way of the second stay application prayed in the proceedings which have now been initiated from the proceedings arising out if the ECSI case No.2040 for which the writ petition is pending before thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed this writ petition challenging the proceedings initiated against him under the Prevention of Money Laundering Act, 2002and has prayed as under:- In view of the facts and circumstances of the case, it is most respectfully prayed that this Hon ble Court may be pleased to: (a) to issue an appropriate Writ, order or direction to set aside and quash the order dated 10.08.2017 by which the Respondent No.3/ Bank is directed to freeze the Bank Account and to further release the Bank Account immediately (b) to issue an appropriate Writ, order or direction to declare the proceedings initiated against the petitioner by respondent No.1, 2 and 3 to be illegal, without jurisdiction and ultra vires to the Act and rules of the prevention of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast seven years and in this regard similar proceedings under the Prevention of Money Laundering Act, 2002 could not have been initiated. Learned counsel submits that the allegations against the petitioner is of having received ₹ 40 lac in 2013 with respect to transactions and the main accused- Anil Kumar Gadodia against whom the proceedings have been initiated under the Prevention of Money Laundering Act, 2002 by the same complaint along with the petitioner, has preferred a writ petition bearing No.199/2021before the Supreme Court wherein the Supreme Court has issued notices and has further directed:- Issue notice. No coercive steps shall be taken against the petitioner in the meantime. Tag with W.P. (Crl.) No.289 of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 42 against the appellate order. Learned ASG further objects that so far as the proceedings on complain are concerned, the same are of criminal nature and the petitioner has mixed up the present proceedings with the criminal proceedings which cannot be allowed and ought not to been tertained. Learned counsel has also submitted that this Court has already taken a view that even though the DRI may have initiated proceedings under the Customs Act, 1962 the proceedings under the Prevention of Money Laundering Act, 2002can be initiated separately. Thus, he submits that the proceeding sunder PMLA Act would not be affected merely because the petitioner is being tried for offences under the Customs Act. Learned counsel submits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 40 for which the writ petition is pending before this Court, in view thereof, this Court would not oust the petitioner s second stay application. The judgments cited at bar relating to the relief not been claimed in the main writ petition would thus not be applicable. With regard to the new submission of learned Additional Solicitor General with regard to the two parallel remedies this court finds that presenting oneself before the Adjudicating Authority which is department itself, cannot be said to be an alternate remedy available to an individual. Attachment of any nature is draconian step has held by Supreme Court in recent judgment in M/s Radha Krishna Industries versus State of Himachal Pradesh Ors. Civil Appeal No.1155/2021. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the formation of opinion by the Commissioner; second, the formation of opinion before ordering a provisional attachment; third the existence of opinion that it is necessary so to do for the purpose of protecting the interest of the government revenue;fourth, the issuance of an order in writing for the attachment of any property of the taxable person; and fifth, the observance by the Commissioner of the provisions contained in the rules in regard to the manner of attachment. Each of these components of the statute are integral to a valid exercise of power. In other words,when the exercise of the power is challenged, the validity of its exercise will depend on a strict and punctilious observance of the statutory pre- conditions by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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