The court held that the appellant's appeal could not be assessed on merits pending the Supreme Court's decision and prior liberty granted to file for review remained valid.

JUDGMENT :

SHREE CHANDRASHEKHAR, CJ

The appellant-Department through its Initiating Officer-cum-.Deputy Commissioner of Income Tax (Benami Prohibition) has challenged the order dated 19^th April 2023 under section 46 of the Prohibition of Benami Properties Transactions Act, 1988 (in short, “Benami Act”) passed by the Appellate Tribunal under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (in short, “the Appellate Tribunal”).

2. The short facts of this case are that an order of provisional attachment under section 24(4)(a)(i) of the Benami Act was passed on 21^st December 2017 against the respondents directing that the attachment shall continue until an order under section 26(3) of the Act is passed by the adjudicating Authority. The adjudicating Authority confirmed the provisional attachment by an order dated 31^st December 2018. Aggrieved by the confirmation order, the respondents preferred appeal before the Appellate Tribunal. By the impugned order dated 19^th April 2023, the Appellate Tribunal allowed the appeals. However, the Tribunal granted liberty to the appellant- Department herein to adopt an appropriate remedy including filing a review petition or initiating proceedings under the Prohibition of Benami Transactions (Amendment) Act, 2016 (in short, “the Amendment Act”). Aggrieved by the impugned order dated 19^th April2023, the appellant-Department has filed the present appeal.

3. Mr. Ashok Kotangale, the learned counsel for the appellant- Department submitted that the Appellate Tribunal has placed reliance on the decision in “Union of India v. M/s. Ganpati Dealcom Pvt. Ltd.” 2022 SCC OnLine SC 1064 as well as the review petition filed against the said judgment which was then pending before the Hon’ble Supreme Court. The relevant portion of the impugned order reads as follows:-

“It is however made clear that if the Apex Court reviews its judgment, the respondent would be at liberty to take appropriate remedy pursuance to it which includes filing a review petition before this Tribunal.

It is also made clear that if the Department has an independent right to initiate action taking the Amendment Act, 2016 to be prospective and does not offend the judgment of the Apex Court in the case of UOI V/s M/S Ganpati Dealcom (Supra) then this order would not come in their way as otherwise action can be governed by para 130(f) of the judgment (supra).”

4. Mr. Ashok Kotangale, the learned counsel for the appellant- Department indicates that now the review has been allowed by the Hon’ble Supreme Court and original judgment in “M/s. Ganpati Dealcom Pvt. Ltd.” stands recalled. Consequently, the present appeal deserves to be allowed. The relevant portion of the review order dated 18^th October 2024 reads as under:-

“6. A challenge to the constitutional validity of a statutory provision cannot be adjudicated upon in the absence of a lis and contest between the parties. We accordingly allow the review petition and recall the judgment dated 23 August 2022. Civil Appeal No.5783 of 2022 shall stand restored to file for fresh adjudication before a Bench to be nominated by the Chief Justice of India on the administrative side.

7. Where any other proceedings have been disposed of by relying on the judgment of this Court in Ganpati Dealcom Private Ltd. (supra), liberty is granted to the aggrieved party to seek a review in view of the present judgment.”

5. We have perused the impugned order as well as the order passed by the Hon’ble Supreme Court in the review petition. During the hearing before the Appellate Tribunal, the appellant-Department had sought specific liberty to adopt appropriate remedies including filing a review petition before the Tribunal depending