Excelsior Correspondent
Srinagar, Nov 21: The High court upheld the order of remanding back the matter pertaining to attachment of property of Zahoor Shah Wattali by the appellate authority to the Enforcement Department (ED) and dismissed the appeals of Wattali.
The division bench of Justice Sanjeev Kumar and Justice Sanjay Parihar while dismissing the appeal filed by Wattali against remand back order said it is beyond pale of any discussion that the power of remand is an important postulate of any authority exercising appellate jurisdiction and vested with the power to confirm, modify or set aside the order appealed against.
“The power to set aside an order by the Appellate Tribunal includes the power to remand, which is a necessary attribute or concomitant of the power to annul or set aside the order under appeal, unless such power is expressly, or by necessary implication or intendment, taken away by the statute which creates the appellate tribunal”, reads the judgment.
The factual matrix of the case is that M/S Trison Farms and Construction is a private Ltd. Company incorporated under the Indian Companies Act, 1956, of which Appellant-Watali and his family members are promoters. He 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 Ghulam Mohammad Bhat which showed that Wattali had received Rs.1,64,10,000 during 2015-16 from illegitimate sources and passed it on to different persons engaged in separatist activities in Kashmir.
The Deputy Director, Directorate of Enforcement, New Delhi, the, passed a provisional attachment order on 11.03.2019 attaching the basement and ground floor, DLF Phase-II, Gurgaon, Haryana which was in the name of appellant-Wattali. Subsequently, the NIA filed OC No. 1114 of 2019 before the Adjudicating Authority jointly against the appellants.
The appellants were put on a show-cause notice issued by the Adjudicating Authority (ED) on 16.04.2019. The show-cause notice was responded to by the appellants vide their reply dated 2nd of July 2019. The Adjudicating Authority (ED) vide its order dated 26.08.2019 confirmed the attachment ordered by the authorized officer under Section 5 of the Act of 2002.
Dissatisfied and aggrieved by the order of Adjudicating Authority, the appellants filed appeals before the appellate Tribunal and prayed for setting aside of the order of confirmation passed by the Adjudicating Authority in terms of Section 8 of the Act of 2002.
The appeals were heard by the Appellate Tribunal and vide order dated 24.09.2024, the Tribunal accepted the plea of the appellant-Wattali that the failure of the Adjudicating Authority to convey ‘reasons to believe’ to the appellant had vitiated the order of confirmation.
Accordingly, the appeals were allowed and the confirmation order passed by the Adjudicating Authority set aside. However, after setting aside the order of confirmation passed by the Adjudicating Authority, the matter was remanded back to take de novo proceedings and issue fresh notice to the appellants along with ‘reasons to believe’ so as to afford the appellants adequate opportunity to file reply.
It is the order of the Appellate Tribunal dated 24.09.2024 which has been called in question by the appellants primarily on the ground that the Appellate Tribunal exercising its jurisdiction under Section 26 4 of the Act of 2002 is devoid of any power or jurisdiction to remand the matter back to the Adjudicating Authority.
“The Appellate Tribunal, by setting aside the confirmation order and remanding the matter back to the Adjudicating Authority, has merely restored the proceedings to the stage at which the Adjudicating Authority had passed the confirmation order. It is also not the case of the appellants that, as on the date on which the confirmation order was passed by the Adjudicating Authority, the provisional attachment order had lapsed by efflux of time”, DB recorded. “Viewed thus, we find no merit in these appeals and the same are, accordingly, dismissed. Interim orders, if any, shall stand vacated. Consequently, the order of the Appellate Tribunal is upheld”, the court concluded.
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