The Tax PublishersAttachments, Adjudication and Confiscation1. Attachment of property involved in money-laundering

Where the Director, or any other officer not below the rank of Deputy Director authorised by him for the purposes of section 5, has reason to believe (the reason for such belief to be recorded in writing), on the basis of material in his possession, that --

(i) any person is in possession of any proceeds of crime;

(ii) such person has been charged of having committed a scheduled offence; and

(iii) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter,

he may, by order in writing, provisionally attach such property for a period not exceeding ninety days from the date of the order, in the manner provided in the Second Schedule to the Income Tax Act, 1961 and the Director or the other officer so authorised by him, as the case may be, shall be deemed to be an officer under sub-rule (e) of rule 1 of that Schedule. [Section 5(1)]

However no such order of attachment shall be made unless, in relation to an offence under --

(i) Paragraph 1 of Part A and Part B of the Schedule, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973; or

(ii) Paragraph 2 of Part A of the Schedule, a police report or a complaint has been filed for taking cognizance of an offence by the Special Court constituted under sub-section (1) of section 36 of the Narcotic Drugs and Psychotropic Substances Act, 1985. [Proviso to section 5(1)]

Further, the Director, or any other officer not below the rank of Deputy Director, shall, immediately after attachment under sub-section (1), forward a copy of the order, along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority, in a sealed envelope, in the manner as may be prescribed and such Adjudicating Authority shall keep such order and material for such period as may be prescribed. [Section 5(2)]

Also, every order of attachment made under sub-section (1) shall cease to have effect after the expiry of the period specified in that sub-section or on the date of an order made under sub-section (2) of section 8, whichever is earlier. [Section 5(3)]

However, nothing in this section shall prevent the person interested in the enjoyment of the immovable property attached under sub-section (1) from such enjoyment. [Section 5(4)]

Explanation.--For the purposes of this sub-section, 'person interested' in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property.

It is however to be noted that the Director or any other officer who provisionally attaches any property under sub-section (1) shall, within a period of thirty days from such attachment, file a complaint stating the facts of such attachment before the Adjudicating Authority. [Section 5(5)]

2. Adjudicating authorities, composition, powers, etc.

(i) The Central Government shall, by notification, appoint one or more Adjudicating Authorities to exercise jurisdiction, power and authority conferred by or under this Act. [Section 6(1)]

(ii) Such Adjudicating Authority shall consist of a Chairperson and two other Members, subject however to the condition that one Member each shall be a person having experience in the field of law, administration, finance or accountancy. [Section 6(2) with proviso]

(iii) A person shall, however, not be qualified for appointment as Member of an Adjudicating Authority :

(a) in the field of law, unless he --

(1) is qualified for appointment as District Judge; or

(2) has been a Member of the Indian Legal Service and has held a post in Grade I of that service;

(b) in the field of finance, accountancy or administration, unless he possesses such qualifications, as may be prescribed. [Section 6(3)]

(iv) The Central Government shall appoint a Member to be the Chairperson of the Adjudicating Authority. [Section 6(4)]

(v) According to sub-section (5) of section 6, Subject to the provisions of this Act, --

(a) the jurisdiction of the Adjudicating Authority may be exercised by Benches thereof;

(b) a Bench may be constituted by the Chairperson of the Adjudicating Authority with one or two Members as the Chairperson of the Adjudicating Authority may deem fit;

(c) the Benches of the Adjudicating Authority shall ordinarily sit at New Delhi and at such other places as the Central Government may, in consultation with the Chairperson, by notification, specify;

(d) the Central Government shall, by notification, specify the areas in relation to which each Bench of the Adjudicating Authority may exercise jurisdiction.

(vi) However, notwithstanding anything contained in sub-section (5), the Chairperson may transfer a Member from one Bench to another Bench. [Section 6(6)]

(vii) There may be a situation that at any stage of the hearing of any case or matter, it appears to the Chairperson or a Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the Chairperson or, as the case may be, referred to him for transfer, to such Bench as the Chairperson may deem fit. [Section 6(7)]

(viii) The Chairperson and every Member shall hold office as such for a term of five years from the date on which he enters upon his office. This is however subject to the condition that no Chairperson or other Member shall hold office as such after he has attained the age of sixty-two years. [Section 6(8)]

(ix) The salary and allowances payable to and the other terms and conditions of service of the Member shall be such as may be prescribed :

However, neither the salary and allowances nor the other terms and conditions of service of the Members shall be varied to his disadvantage after appointment. [Section 6(9) r/w proviso]

(x) If, for reasons other than temporary absence, any vacancy occurs in the office of the Chairperson or any other Member, then, the Central Government shall appoint another person in accordance with the provisions of this Act to fill the vacancy and the proceedings may be continued before the Adjudicating Authority from the stage at which the vacancy is filled. [Section 6(10)]

(xi) The Chairperson or any other Member may, by notice in writing under his hand addressed to the Central Government, resign his office.

However,the Chairperson or any other Member shall, unless he is permitted by the Central Government to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is the earliest. [Section 6(11) r/w proviso]

(xii) The Chairperson or any other Member shall not be removed from his office except by an order made by the Central Government after giving necessary opportunity of hearing. [Section 6(12)]

(xiii) In the event of the occurrence of any vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the senior-most Member shall act as the Chairperson of the Adjudicating Authority until the date on which a new Chairperson, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office. [Section 6(13)]

(xiv) When however the Chairperson of the Adjudicating Authority is unable to discharge his functions owing to absence, illness or any other cause, the senior most Member shall discharge the functions of the Chairperson of the Adjudicating Authority until the date on which the Chairperson of the Adjudicating Authority resumes his duties.

(xv) The Adjudicating Authority shall not however be bound by the procedure laid down by the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice and, subject to the other provisions of this Act, the Adjudicating Authority shall have powers to regulate its own procedure. [Section 6(15)]

3. Adjudication [Section 8]

(i) 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, he may serve a notice of not less than thirty days on such person calling upon him to indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property attached under sub-section (1) of section 5, or, seized under section 17 or section 18, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties should not be declared to be the properties involved in money-laundering and confiscated by the Central Government. [Section 8(1)]

It is however provided that where a notice under this sub-section specifies any property as being held by a person on behalf of any other person, a copy of such notice shall also be served upon such other person. [Proviso to section 8(1)]

It is also further provided that where such property is held jointly by more than one person, such notice shall be served to all persons holding such property. [Second proviso to section 8(1)]

(ii) The Adjudicating Authority shall, by an order, record a finding whether all or any of the properties referred to in the notice issued under sub-section (1) are involved in money-laundering. This it will do after --

(a) considering the reply, if any, to the notice issued under sub-section (1);

(b) hearing the aggrieved person and the Director or any other officer authorised by him in this behalf; and

(c) taking into account all relevant materials placed on record before him. [Section 8(2)]

However, if the property is claimed by a person, other than a person to whom the notice had been issued, such person shall also be given an opportunity of being heard to prove that the property is not involved in money-laundering. [Proviso to section 8(2)]

(iii) Where the Adjudicating Authority decides under sub-section (2) that any property is involved in money-laundering, he shall, by an order in writing, confirm the attachment of the property made under sub-section (1) of section 5 or retention of property or record seized under section 17 or section 18 and record a finding to that effect, such attachment or retention of the seized property or record shall --

(a) continue during the pendency of the proceedings relating to any scheduled offence before a court; and

(b) become final after the guilt of the person is proved in the trial court and order of such trial court becomes final. [Section 8(3)]

(iv) Where however the provisional order of attachment made under sub-section (1) of section 5 has been confirmed under sub-section (3), the Director or any other officer authorised by him in this behalf shall forthwith take the possession of the attached property. [Section 8(4)]

(v) But where on conclusion of a trial for any scheduled offence, the person concerned is acquitted, the attachment of the property or retention of the seized property or record under sub-section (3) and net income, if any, shall cease to have effect. [Section 8(5)]

(vi) However where the attachment of any property or retention of the seized property or record becomes final under clause (b) of sub-section (3), the Adjudicating Authority shall, after giving an opportunity of being heard to the person concerned, make an order confiscating such property. [Section 8(6)]

4. Vesting of property in Central Government

Where an order of confiscation has been made under sub-section (6) of section 8 in respect of any property of a person, all the rights and title in such property shall vest absolutely in the Central Government free from all encumbrances. [Section 9]

However, where the Adjudicating Authority, after giving an opportunity of being heard to any other person interested in the property attached under this Chapter, or seized under Chapter V, is of the opinion that any encumbrance on the property or lease-hold interest has been created with a view to defeat the provisions of this Chapter, it may, by order, declare such encumbrances or lease-hold interest to be void and thereupon the aforesaid property shall vest in the Central Government free from such encumbrances or lease-hold interest. [Proviso to section 9]

Another proviso appended to section 9 says that nothing in this section shall operate to discharge any person from any liability in respect of such encumbrances, which may be enforced against such person by a suit for damages. [Second proviso to section 9]

5. Management of properties confiscated under this chapter

(i) The Central Government may, by order published in the Official Gazette, appoint as many of its officers (not below the rank of a Joint Secretary to the Government of India) as it thinks fit, to perform the functions of an Administrator. [Section 10(1)]

(ii) The Administrator appointed under sub-section (1) shall receive and manage the property in relation to which an order has been made under sub-section (6) of section 8 in such manner and subject to such conditions as may be prescribed. [Section 10(2)]

(iii) The Administrator shall also take such measures, as the Central Government may direct, to dispose of the property which is vested in the Central Government under section 9. [Section 10(3)]

6. Power regarding summons, production of documents and evidence, etc.

(i) The Adjudicating Authority shall, for the purposes of this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit in respect of the following matters, namely :

(a) discovery and inspection;

(b) enforcing the attendance of any person, including any officer of a banking company or a financial institution or a company, and examining him on oath;

(c) compelling the production of records;

(d) receiving evidence on affidavits;

(e) issuing commissions for examination of witnesses and documents; and

(f) any other matter which may be prescribed. [Section 11(1)]

(ii) All the persons so summoned shall be bound to attend in person or through authorised agents, as the Adjudicating Authority may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required. [Section 11(2)]

(iii) Every proceeding under this section shall however be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code. [Section 11(3)]

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