TaxTMI 
TaxTMI 
2015 (7) TMI 1269
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....o earn commissions payable on realization of payments to principal. The appellant is allegedly one of the Directors of A.B. Services Pvt. Ltd. The appellant is also Proprietor of M/s. A.B. Services 3. According to the appellant, Dr. Kajal Ghosh is a close relative of the appellant and the appellant never had any dealings with Dr. Kajal Ghosh or her husband Shri Sudipta Ghosh. He alleged that in connection with some case registered by CBI against Shri Sudipta Ghosh the residence and bank locker of appellant was searched by the officers of CBI on 18-5-2009 resulting in seizer of Rs. 39,81,000/- and Rs. 27,60,000/- respectively. The seized amount is duly accounted for and all the relevant details and documents were provided to CBI. 4. Appellant alleged that CBI had filed charge sheets dated 29-6-2010 and 29-12-2010 against Shri Sudipta Ghosh and others including the appellant. He alleged that the allegations against the appellant are related to abetment of Section 120B of IPC and various sections of Prevention of Corruption Act. He alleged that the allegations made by CBI against the appellant are false and baseless. He stated that not a single witness has been examine....
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....the Directors of M/s. A.B. Services Pvt. Ltd. He is also Proprietor of M/s. A.B. Services. Appellant alleged that he had withdrawn various amounts in cash from the accounts of company/firm maintained in Andhra Bank, Indian Bank and Centurian Bank between the period May, 2005 to March, 2009. The total of the said withdrawals (above Rs. 10,000/-) comes to Rs. 79,77,800/-. The appellant also contended that the credits received into said bank accounts are the cheques received from the clients against services provided to them and tax was deducted at source in respect of the credits into the said accounts by way of cheques. The amount seized by CBI is part of the said amount. He further stated that he hails from West Bengal and wanted to purchase a piece of land at Kolkata and also intended to enter into business partnership with Sh. Kanai Lal Das. With this intention, the amount of Rs. 27,60,000/- was kept in the locker jointly opened with Sh. Kanai Lal Das in a bank in Kolkata. (vi) The details of withdrawals from the bank accounts (above Rs. 10,000/-) are as under : CASH WITHDRAWLS OF Rs. 10,000/- & MORE FROM ANDHRA BANK C/A. No: 109211011000091 for the period 1-4-2....
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.... Amount Date of withdrawal Amount 14-11-2006 99,000/- 23-12-2006 20,000/- 30-12-2006 99,000/- TOTAL 2006 2,18,000/- 5-2-2007 50,000/- 9-2-2007 1,00,000/- 12-2-2007 1,00,000/- 22-3-2007 20,000/- 15-6-2007 45,000/- 25-6-2007 20,000/- 4-8-2007 20,000/- 25-8-2007 20,000/- 18-9-2007 99,000/- 20-9-2007 99,000/- 24-9-2007 99,000/- 25-9-2007 60,000/- 27-9-2007 50,000/- 8-10-2007 3,50,000/- 16-8-2007 20,000/- 23-10-2007 20,000/- 29-10-2007 1,00,000/- 6-11-2007 20,000/- 15-11-2007 50,000/- 4-12-2007 2,00,000/- TOTAL 2007 15,42,000/- 23-4-2008 2,00,000/- 3-6-2008 1,00,000/- 2-7-2008 35,000/- 5-7-2008 50,000/- 21-7-2008 10,000/- 16-9-2008 20,000/- TOTAL 2008 4,15,000/- 20-1-2009 80,000/- 17-2-2009 50,000/- 6-3-2009 25,000/- TOTAL 2009 1,55,000/- Grand Total India....
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....l establish that neither the said mobile was seized from the appellant nor it was at any stage in the name of the appellant or in his use. Appellant contended that the said records are very vital for the purpose of adjudication in the matter and the respondent No. 1 has totally suppressed these vital documents. (xi) The appellant also relied on certain taped conversation which has not been relied upon in complaint. It was essential for the respondent No. 1 to consider said material before passing the attachment order. According to the appellant the respondent No. 1 has totally ignored such documents. Appellant also contended that mobile no. 9891561753 has no connection with him. According to the appellant, except the charge sheet filed by the CBI, no documents have been produced by the respondent No. 1 in support of its pleas and contentions. (xii) Appellant alleged that he is a close relative (cousin) of Smt. Kajal Ghosh (Defendant No. 2) and that he never had any business relationship or monetary transactions with her or her husband or any illicit dealings with any of the accused. He reiterated that the source of the seized amount was duly explained to the....
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....ion filed a charge sheet on 29-6-2010. Another case was registered by the CBI against Sh. Sudipta Ghosh on 31-7-2010 under Section 13(2) read with Section 13(1)(e) of the PC Act, 1988 for possessing disproportionate assets to known sources of his income during the period from 1-1-2000 to April 1, 2009, and on completion of investigation, the charge sheet was filed on 29-12-2010. It has been alleged that Sh. Sudipta Ghosh, the then DG Ordnance Factories and Chairman Ordnance Factory Board, Kolkata during the period from May, 2007 to April, 2009, entered into criminal conspiracy with Sh. Ashish Bose, appellant, Pradeep Rana, Ramesh Nambiar, Jitender Kumar Thappar, Satish Mahajan, Sunil Handa, Jitender Kumar Grover, Mahinder Singh Sahani, Smt. Kajal Ghosh, M/s. T.S. Kishan and Company and M/s. R.K. Machine Tools with the object of demanding and obtaining huge illegal gratification in the matter of various supply orders placed by Ordnance Factory Board (OFB) on private manufacturers/suppliers including foreign suppliers and in the matters of transfer and posting of the officers of Ordnance Factories. 11. It has been further alleged that Sh. Sudipta Ghosh arranged an account and....
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.... form was transmitted by appellant to the Shri Kanai Lal Das, who downloaded the same and after obtaining signatures of the Shri Sudipta Ghosh passed on to appellant and Shri Ashish Bose who further e-mailed it to the Singapore Bank on 31-3-2009. The party for transfer of US$ 10000 through Hawala channel was arranged by Shri Jitender Kumar Grover, co-brother of the said Shri Ashish Bose, appellant, who had passed on the details to the appellant over phone on 26-3-2009. The Singapore Tel. Nos. 006563264563 and 006563264587 through which the transactions had been completed were of Shri Amresh Acharya, who when in India uses Mobile No. 9833206054 registered at the address 214, Kalpataru Habitat, Dr. S. S. Rao Road, near Gandhi Hospital, Parel, Mumbai. Shri Sudipta Ghosh brought cash amounts ranging between Rs. 5 lakhs & Rs. 10 lakhs each collected as illegal gratification from various suppliers either directly or through the appellant during his each visit to Delhi in April, 2009. He visited New Delhi on 6th, 14th/15th and 23rd of April, 2009. 14. It has been held that the ill-gotten money was mostly collected from the suppliers by the appellant but the said Shri Sudipta Ghosh....
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.... appellant that Shri Teli was to pay Rs. 15 lakhs and also discussed about M/s. R. K. Machine Tools, Shri Sahani and about Nalanda O.F. matter and told the appellant to impress upon Shri Nambiar to arrange the promised cash through Shri Pradeep before his retirement. They also discussed about BVT, Poland and their project at Katni Ordnance Factory. The matter regarding reluctance of Shri Thapar to pay 1% was also discussed when Shri Sudipta Ghosh asked the appellant to make Shri Thapar to pay 1% instead of 0.5% of Rs. 10 crores project he had secured from OFB. An amount of Rs. 5.50 lakhs was collected from Shri Sunil working for M/s. R. K. Machine Tools residing at F-47, Lajpat Nagar-2, New Delhi on 14-4-2009 by the appellant which was arranged by Shri Satish Mahajan of M/s. R. K. Machine Tools being the bribe amount payable to Shri Sudipta Ghosh @ 2% of the repeat order worth Rs. 2.75 crores placed by OFB on them. The amount of bribe and the corresponding amount of repeat order were discussed between the appellant and Shri Satish Mahajan on 11-4-2009. 16. That the appellant was arranging unofficial as well as official meeting of various private parties with Shri Sudipta Gh....
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....out the procedure to change the name to incorporate his name there. Shri Ghosh, however, informed him that the name changing could be done after 3 to 6 months. Appellant also told Smt. Kajal Ghosh on 28-4-2009 that he brought Rs. 2.5 lakhs with him from Delhi and would be adding Rs. 50,000/- given by the supplier at the Dumdum O.F. Inspection Bungalow and hand it over to Shri Sudipta Ghosh. He also informed her that he would be visiting the bank locker at Baranagar, Kolkata on 29th April, 2009 morning after meeting Shri Sahani along with Shri Sudipta Ghosh at 09:30 A.M. and enquired if the locker number has been mentioned on the locker key to which she replied that Shri Sudipta Ghosh has kept the key at home. 18. Regarding the second CBI, ACB, Kolkata Charge Sheet No. 48/2010, dated 29-12-2010 in RCO102010A0030, dated 31-7-2010, relating to disproportionate assets of Sh. Sudipta Ghosh and abetted by others it has allegedly been revealed that the total income of Shri Sudipta Ghosh and his family members consisting of his wife Dr. Kajal Ghosh and two sons, namely, Shri Abhishek Ghosh and Shri Anirban Ghosh during the said period from all sources was Rs. 1,12,63,649/-. Such in....
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.... various suppliers/their agents have been substantiated. Evidence has also been collected to substantiate the opening of lockers in the name of Smt. Kajal Ghosh and himself for stashing the same illegal gratification and he also facilitated the transfer of the part of ill-gotten money from the account operated by Sh. Sudipta Ghosh in Singapore or account in India through Hawala Channel besides a remittance to the account of the son of Sh. Sudipta ghosh. The oral and documentary evidence collected during the investigation to prove abetment by the appellant of the offence of habitual demand and acceptance of illegal gratification by Sh. Sudipta Ghosh has been strengthened by seizure of cash of Rs. 47.70 lacs, mobile phone used for making the majority of the intercepted calls to the co-accused. Laptop (remittances advises of HSBC, Hong Kong pertaining to the transfer of US $ 60,000 and 40,000 on 7th and 8th November, 2008 respectively, E-ticket pertaining to travel to Kolkata on 9-3-2009 along with Sh. M.S. Sahani, format of authorization used Sh. Sudipta Ghosh for transferred US $ 10,000 from the account of Mendual Development Inc. with RBS Coutts Bank Ltd. Singapore, etc., have been....
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....oard (OFB) on private manufacturers/suppliers including foreign suppliers and in the makers of transfer and posting of the officers of Ordnance Factories. 24. The respondent No. 1 also contended that Sh. Sudipta Ghosh arranged an account and locker in Oriental Bank of Commerce, Lake Garden Kolkata on 13-3-2009 in the joint names of his wife Smt. Kajal Ghosh and Smt. Luna Das w/o Sh. Kania Lal Das @ Asit Das, a supplier of Ordnance Factory and an associate of Sh. Ashish Bose for stashing his ill-gotten money which has been collected from various suppliers through the appellant during the last days of his service prior to this retirement on 30-4-2009. Illegal gratification thus obtained in the form of huge cash was stashed in the said bank locker on 28-3-2009 by the Smt. Kajal Ghosh. In the bank locker of the appellant, huge cash collected as illegal gratification was deposited on 24-4-2009. The said cash was brought from Delhi by appellant who collected the same from various suppliers from Ordnance Factories. 25. According to respondent No. 1, Shri Sudipta Ghosh while working in different posts in Ordnance Factories/Ordnance Factory Board including the post of Direct....
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.... avoid confiscation of such properties and therefore, the decision taken by the respondent to attach the properties in question cannot be said to be unwarranted or in contravention of law. In view of the overriding effect of Prevention of Money-laundering Act with regard to the other laws, the properties even if attached earlier under other laws, the release thereof of at any stage on the plea of the appellant or otherwise cannot be ruled out, and therefore, the measure taken for attachment and thus restraining the appellant from concealing or transferring the property in any manner cannot be said to be in contravention of law. The attachment of the properties of the appellant is rather a step consistent with the objective of the law contained in the PMLA. 27. The Adjudicating Authority on consideration of charge sheets filed by the CBI and other material had also come to prima facie inference that the disproportionate assets acquired during the check period by the Sudipta Ghosh comes to Rs. 2,98,88,947.31 which is 362.96% of his income. Considering his movable and immovable properties generated by him while working as a Director General of Ordnance Factories and Chairman o....
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....ed. This is the plea of the appellant that the amount seized by CBI allegedly came from bank accounts. In the circumstances it was incumbent upon the appellant that the amounts came to him from the genuine business and the said amounts do not constitute the proceeds of crime generated by Shri Sudipta Ghosh by taking bribes. The appellant has also failed to disclose how much cash belongs to private limited company where he was director and how much cash below to the firm of which he was proprietor. No documents such as balance sheet, etc., of the company and firm were produced to show that the cash claimed to have been kept in bank locker is reflected therein. In the circumstances the appellant has completely failed to discharge the burden which was on him. If that be so then the provisional attachment confirmed by the Adjudicating Authority cannot be faulted. The learned counsel for the appellant in the facts and circumstances has failed to make out any jurisdictional error in the order impugned by the appellant. The next plea of the counsel for the appellant that the charge under Section 120B has not been made out cannot be accepted and decided by this Tribunal. The appropriate co....
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....the assets could not be attached. From Section 5 of Act, following conditions are prerequisite for attaching the proceeds of crime provisionally without issuing notice prior to the attachment. They are : i. The Director, or any other officer, who provisionally attaches any property, shall have reasons to believe on the basis of materials in his possession; ii. The person, against whom proceedings under PMLA, 2002 has been initiated, must be in possession of any proceeds of crime; iii. Such proceeds of crime are likely to be concealed, transferred or dealt with in any manner; and iv. If the provisional attachment is not ordered immediately such concealment or transfer of such proceeds of crime may result in frustrating the proceedings relating to confiscation of such proceeds of crime. Sub-section (1) to Section 5 of PMLA, is clear that, if the proceeds of crime are likely to be concealed, transferred or dealt with in any manner, which may end in frustrating any proceedings relating to confiscation of such proceedings of crime, the Director, or any other o....
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.... offence. The prosecution under the PML Act, and attachment and eventual confiscation proceedings are distinct proceedings. These two sets of proceedings can be initiated against the same person who is accused of having committed the offence of money-laundering. Even if any person is in possession of the proceeds of crime can be proceeded against for attachment and confiscation, on a satisfaction by the appropriate competent authority. 33. Section 26 of the Indian Penal Code defines 'reason to believe' and has to be relied on as the PML Act does not define the said expression. The 'reason to believe' contemplates, subjective satisfaction which must be in good faith and it cannot be a mere pretence. The counsel for the appellant though contended that jurisdictional facts are not available against the appellant but did not specifically contended as to which facts are not available against the appellant. No allegations of lack of faith or a mere pretense on the part of attaching officer had been made on behalf of the appellant. In these circumstances this Tribunal will not go in the question whether the reasons for the belief have a rational connection or relevant bearing to t....