TaxTMI 
TaxTMI 
2018 (10) TMI 329
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....he brief facts (in order to decide the above mentioned applications) as per appellant's pleadings, are as under:- i) On the basis of information received by the Central Bureau of Investigation (hereinafter referred to as "CBI"), Anti-Corruption Branch (hereinafter referred to as "ACB") Chennai, an FIR being FIR No. RC MA1 2016 A0050 (hereinafter referred to as "CBI FIR") was registered by the CBI. The allegation was broadly, that wrongful gain to the Appellant and wrongful loss to the Government of India of Rs. 115 Crores has been caused, by sale of the property admeasuring about 10.46 Acres in Guindy Village, Chennai (hereinafter referred to as the "the said property") at a sale price of Rs. 272 Crores whereas the Guidelines value for the same was Rs. 387 Crores (and hence the loss). The same is merely a notional gain and notional loss. It was alleged that the sale was wrongly done by private treaty instead of by public auction and that sufficient time, paper publication and other guidelines for private treaty sale were not followed. It was alleged that this was done by collusion and connivance of the officials of State Bank of India (hereinafter referred to as "SBI"), Eg....
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....ers have spent their savings for purchase of flats in the building. They want to see some progress of the construction of the building as they have invested their hard earned money. In case the attachment will continue, the respondent no. 1 will not allow the appellant to carry out further construction in the building. The customers are victim and innocent parties and are not ready to pay the remaining amount as per agreement if there is no progress of construction. They are admittedly not involved in any offence either under the scheduled offence or under the PMLA. The plot was purchased after taking the loan from financial institutions who are the secured creditors. The question of proceed of crime for purchasing the plot does not arise with most of the buyers agreements and sale-deeds have been executed. 5. It is also stated by the learned counsel appearing on behalf of the appellant that the amount of hundreds crores of rupees have been involved by purchasing the land and construction carried out on the flats. The amount was disbursed by the financial institutions(who are the secured creditors). It is a home-loan and in case the customers will stop paying the remaining amoun....
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....res availed by the Appellant is annexed hereto and marked as Annexure A/5 (Colly)." Along with affidavit, all the relevant documents referred in the affidavit are affixed. 9. With regard to the objection raised by Mr. Mohammad Faraz, Advocate, Section 35(1) of the PMLA reads as under: "35. Procedure and powers of Appellate Tribunal - (1) The Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice and, subject to the other provisions of this Act, the Appellate Tribunal shall have powers to regulate its own procedure." 10. Mr. Nikhil Rohtagi, Advocate in support of his arguments has referred the decision of the Supreme Court with regard to the power of the Tribunal to regulate its own procedure in the case of 'Union of India Vs. Paras Laminates (P) Ltd.' Paras 7 and 8 of the judgement are reproduced hereunder:- "7. Sub-section (6) Section 129C says that the Tribunal shall have the power to regulate its own procedure. It reads: (6) Subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its ow....
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....the purchasers of the flats, otherwise the position would have been different. 13. The entire case of CBI is that the plot was not purchased as per circle rate and the appellant has saved Rs. 105 crores while purchasing the same. At the best if it proved or ED would satisfy the tribunal about the condition of second proviso of section 5(1), the said amount may be treated as proceed of crime which is allegedly saved by the appellant and prima facie I am of the view that at the best, the impugned property could have been attached as value thereof for sum of Rs. 105 crores. 14. It is also the case of the appellant that even otherwise more than sufficient to cover the alleged loss by the waiver of interest of approx. Rs. 53.50 crores to and by State Bank of India. Evendespite of that, the appellant is offering alternative property value of which is approx. Rs. 119 crores as per the prevailing circle rate of area in order to secure the amount without prejudice and have no objection that the proceedings of complaint under the schedule offence and PMLA, 2002 may continue as per law and the appellant would defend the same as per law. 15. It is also a matter of fact that the con....
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....of crime are likely to be considered, 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 one hundred and eighty days from the date of the order, in such manner as may be prescribed: Provided that no such order of attachment shall be made unless, it relation to the scheduled offences, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in that Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or a similar report or complaint has been made or filed under the corresponding law of any other country. Provided further that, notwithstanding anything contained in (first proviso), any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director authorized by him for the purposes of t....
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....way amendment in the Finance Act (20 of 2015) w.e.f. (14th May 2015). The same read as under: "Provided further that, notwithstanding anything contained in (first proviso), any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director authorized by him for the purposes of this section has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that if such property involved in money laundering is not attached immediately under this Chapter, the non-attachment of the property is likely to frustrate any proceedings under this Act.)" 25. It is stipulated that notwithstanding anything in the first proviso the properties can be attached without filing the report to the Magistrate or the complaint is filed. 26. Meaning thereby that the properties may be attached by ED merely on the basis of allegations and material but subject to the following mandatory conditions. The same are; a. If such property is involved in money laundering is not attached immediately,non attachment is likely to frustrate proceedings under this Act. ....
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....passing the provisional attachment order (which the relevant date), then the objection may be over-ruled.If not, then the provisional attachment ordercould not have been passed as per law. Even the confirmation order ipso facto would also be set aside. 32. I have enquired from the learned counsel for respondent no. 1 to produce the copy of the reasons to believe which is mandatory under 2nd proviso of Section 5(1) of the Act. He submits that the copy of reasons to believe is not available with him. It must have been sent to the Adjudicating Authority. He is also not aware the language of the reasons to believe if passed under the 2nd proviso of the Act. 33. In the meanwhile, the Appellate Authority is directed to produce the trial record along with the copy of the reasons to believe in the sealed cover on the next date of hearing. Registry will take necessary steps to call for the record from Adjudicating Authority through the messenger who along with also send the copy of reasons to believe lying in sealed envelope. 34. In the interest of justice, the equity in favour of the appellant who are offering the alternative property which is approx. Rs. 119 crores as per the pre....