Appeal filed by ED u/s 42 before HC through Assistant Director is maintainable rules, PMLA-AT

Case details: Enforcement Directorate, Kolkatta v. Shree Ganesh Jewellery House (I) Ltd. - [2021] 130 taxmann.com 33 ((PMLA-AT), NEW DELHI)

Judiciary and Counsel Details

• • G.C. Mishra, Actg. Chairman
  • N.K. Matta, Adv. and Akshay Sinha, I.O. for the Appellant. 
  • Ms. Pratiksha Sharma, Ankit Acharya, S.A. Saud, Arun Kumar Agarwal, Alok Kumar, Neeraj Grover, and Ms. Poonam Lau, Advs. for the Respondent.

Facts of the Case

In the instant case, an appeal was filed by ED through Assistant Director before High Court. The Respondent raised the maintainability point that Assistant Director had no power to file an appeal.

PMLA-AT Held

Thereafter, the High court transferred the matter to Appellate Tribunal to decide the issue of maintainability of appeal so filed. In this regard, the Respondent submitted that an appeal under section 26(1) could not be filed by an officer below the rank of Deputy Director as under section 26(1), the word ‘director’ is appearing whereas no authority is specifically named under section 42 of Prevention of Money Laundering Act (PMLA).

However, from the interpretation, it does not mean that neither director nor any other classes of authorities as prescribed under section 48 or 49 are eligible to file an appeal before High Courts.

It was noted that the department who was aggrieved and filed an appeal in question and decision was taken at the level of Special Director that Assistant Director was to file an appeal, same was nothing but a ministerial work to be performed by Assistant Director and therefore appeal filed by ED under section 42 before High Court through Assistant Director was maintainable.

List of Cases Referred to

• M.P. Wakf Board v. Subhan Shah [Appeal (Civil) 6975 of 2004, dated 31-10-2006] (para 12)
• Union of India v. B.V. Gopinath [2013] 38 taxmann.com 446/219 Taxman 73 (Mag.) (SC) (para 20)
• Sidharth Sarwagi v. Board of Trustees for Port of Kolkata [2014] 16 SCC 248 (para 20)
• A.K. Roy v. State of Punjab [1986] 4 SCC 326 (para 20)
• Anirudhsinghji Karansinhjijadeja v. State of Gujarat [1995] 5 SCC 302 (para 20)
• Dhadda Exports v. ITO [2015] 58 taxmann.com 176/232 Taxman 407/377 ITR 347 (Raj.) (para 20)
• Yum Restaurants Asia Pte Ltd. v. Dy. DIT (No. 1) [2018] 99 taxmann.com 423/[2017] 397 ITR 639 (Delhi) (para 20)
• Varun Phawa v. Renu Chaudhary [Civil Appeal No. 2431 of 2019, dated 1-3-2019] (para 30)
• Sugandhi v. Rajkumar [Civil Appeal No. 3427 of 2020, dated 13-10-2020] (para 32)
• L & T Housing Finance Ltd. v. Trishul Developers [2020] 120 taxmann.com 413/[2021] 163 SCL 671 (SC) (para 32)
• State of Gujarat v. Mohanlal Jitamaljiporwal AIR 1987 SC 1321 (para 33).