Sri Biswajit Mohapatra vs Union Of India And Others
2022 Latest Caselaw 3009 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                                   W.P.(C) No.15464 of 2022

             Sri Biswajit Mohapatra                      ....           Petitioner
                                               Mr. Sidhartha Ray, Advocate
                                        -versus-
             Union of India and others                .... Opposite Parties
                                   Mr. P.K. Parhi, A.S.G. for Union of India
                          Mr. R. Chimanka, Sr. Standing Counsel along with
                         Mr. A. Kedia, Jr. Standing Counsel for the Revenue

                         CORAM:
                         THE CHIEF JUSTICE
                         JUSTICE R.K. PATTANAIK

                                           ORDER

07.07.2022 Order No.

01. W.P.(C) No.15464 of 2022 and I.A. No.8298 of 2022

1. The challenge in the present writ petition is to an order dated 28th April 2022, of the Adjudicating Authority under the Prohibition of Benami Property Transactions Act, 1988 (PBPT Act) whereby the provisional order of attachment dated 31st March 2021 of the Deputy Commissioner has been approved.

2. One of the contentions of Mr. Sidhartha Ray, learned counsel appearing for the Petitioner is that the share transactions in question took place in the year 2014 and the amended provisions of the PBPT Act, which came into effect from 1st November 2016, and in particular, Sections 2(9)(A) read with Section 2 (9) (C) of the PBPT Act were retrospectively applied to such transactions.

3. Relying on the decision in Commissioner of Income Tax v. Vatika Township Private Limited (2014) 1 SCC 1 and a judgment dated 8th March 2022, of the High Court of Telengana in Writ Petition No.14695 of 2021 (Nexus Feeds Limited v. The Assistant Commissioner of Income Tax), it is submitted that there cannot be a retrospective application of the amended provisions of the PBPT Act to transactions that took place prior to 1st November, 2016.

4. Issue notice. Mr. Chimanka, learned Senior Standing Counsel accepts notice on behalf of Opposite Party Nos.2, 3 and 4 and Mr. P.K. Parhi, learned Assistant Solicitor General accepts notice on behalf of Opposite Party No.1. Extra copies of the petition be served on him within three days.

5. It is pointed out that Opposite Party Nos.5 and 6 are the Proforma Opposite Parties. Notice to them be issued by Speed/Registered Post with A.D. making it returnable before the next date. Requisites be filed within a week. Accept one set of process fee. The tracking report be placed on record before the next date.

6. Mr. Chimanka raises a preliminary objection regarding maintainability of the present writ petition by pointing out that there is a provision for an appeal to a Tribunal under Section 46 of the PBPT Act. However, Mr. Ray, learned counsel appearing for the Petitioner submits that till date the Tribunal in question has not been established and therefore, such remedy cannot be availed by the Petitioner.

7. It is directed that till the next date of hearing, the Petitioner shall maintain status quo as to the shares in question which have been

attached by the impugned order dated 31st March 2021 as confirmed by the second impugned order dated 28th April 2022 of the Adjudicating Authority.

8. List on 11th October, 2022.

9. Issue urgent certified copy of this order as per rules.

(Dr. S. Muralidhar) Chief Justice

(R.K. Pattanaik) Judge S.K. Guin