TaxTMI 
TaxTMI 
2019 (1) TMI 133
X X X X Extracts X X X X
X X X X Extracts X X X X
....tta No. 69 & Dag No. 208 KP Patta No. 04, Dag No. 154 KP Patta 36, Village Karmarkuchi NC, District Kamrup (M), Assam in name of M/s Saradha Realty India Ltd. and Dag No. 177, KP Patta no. 129, Village- Kamarkuchi NC, Mouza- Panbari District Kamrup (M). Heard the submissions of the learned counsels for both the parties on 21.12.2018. The Appeal was allowed in terms of short order dated 21.12.2018 which is reproduced as below: "Both the parties have made their submissions. Appeal is allowed. The matter is remanded back. Possession be handed over forthwith to the appellant subject to the condition that the appellant shall not create any third party interest. Attachment of the property shall continue. Detailed order to follow." Accordingly the detailed order is as follows: 3. CASE OF THE APPELLANT AS PER THE APPEAL MEMO I. It is the case of the appellant that, the appellant is a company duly incorporated under the Company Act, 1956 having its registered office at Landmark Building, MG Road, Machkhowa, Guwahati, Assam. II. The Appellant/company, amongst other deals in agricultural products, timber and wood etc. It has been the consistent endevour of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er from further alienating the property during the proceedings of the suit. VI. In the meanwhile, the Appellant came across of media reports that M/s. Saradha Realty India Ltd. had duped many investors and, as such, several other cases were also filed against them. The Appellant could also learn from media reports that the authorities intend to confiscate/attach the properties belonging to M/s. Saradha Realty India Ltd. As such the appellant of its own volition by way of letter dated 06.05.2013 informed all the concerned authorities including CBI, Enforcement Directorate and Assam Police regarding its investments with the said party in respect of the land in question and that the matter was sub-judice in the court with an injunction force. Subsequently informed ED vide letters dated 07.05.2013, 13.05.2013 & 05.06.2013 and submitted copies of documents. VII. Though all the relevant documents were placed before the respondent no.3 in respect of the purchase of the aforesaid plot of land, however, for reasons other than bonafide the said authority chose to sit over the matter and nothing was intimated to the Appellant. The respondent authorities were also informed ab....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng Authority in O.C. No. 344/2014 dated 07.11.2014. The respondent no. 3 has taken over constructive possession of the property in question by the impugned order dated 31.08.2018. XIII. It is also contended by the Appellant that the impugned notice also reflects that land covered by Dag No. 177, KP No. 129 belonging to one Sri Podum Ch Borthakur has been attached. The Appellant has been baffled by such inclusion and categorically states that it is not aware where this property is situated and why it has been included along with the property of the Appellant. 4. GROUNDS OF APPEAL The main grounds of appeal are as below: i. That the appellant is innocent and bonafide purchaser and had/has no connection or nexus with Shri Sudipta Sen. ii. The property sealed of the appellant was its own money purchased through lawful means and the said money is not even alleged to be coming under PMLA, 2002. iii. The Appellant is not associated with any provisions of PMLA. iv. Having full knowledge about the bonafide transaction of the land in issue, the respondent failed to comply with Section 8(2) of the PMLA, 2002. v. Once the App....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ten complaint dated 13.04.2013 made by Shri Tapash Paul and other employees of a Bengali Daily "Sakalbela", an FIR No. 276/2013 dated 13.04.2013 was registered invoking Section 406 of IPC at the Police Station, Paltanbazar, District- Kamrup (M), Guwahati. Similarly other FIRs were also filed in State of Assam. c) Subsequently, the SSP, CID, Assam had forwarded copies of 19 FIRs lodged in different Police Stations against Saradha Group of Companies/Sudipta Sen and Others. d) Also subsequently, the CBI, SCB, Kolkata registered FIR No. RC- 62/S/2014 dated 26.12.2014 on the basis of Notification No. PLA(V).151/2012/186 dated 06.05.2013 of Government of Assam, Political (Vigilance Cell) Department, Dispur and Notification dated 09.12.2014 of the Government of India, Ministry of Personnel, Public, Grievances and Pensions, Department of Personnel and Training, New Delhi by taking over Dispur (Assam) PS Case No. 732/2013 dated 10.04.2013, registered u/s 420 and 406 of the IPC, 1860 against the Manager of Saradha Group of Companies, Lalganesh Branch. Subsequently, the case was transferred to the CBI, ACB, Guwahati. e) CBI investigations has revealed that Shri Sudi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt had the knowledge of proceedings under PMLA. If their action were bonafide they would have taken recourse to proviso (8) of Section 8 of PMLA, 2002, which provides for rights of claimant with a legitimate interest in the property by the Special Court. On the contrary, with a malafide intention, they have approached the Civil Court, without making ED a party to the suit. This step of the Appellant is in complete violation of Section 67 of PMLA, 2002 which bar filing of suits in Civil Courts to set aside or modify any proceedings under PMLA. i) The Appellant knowingly has not challenged the PAO dated 16.07.2014 issued by the Department and confirmation order of Adjudicating Authority dated 07.11.2014. j) There is no necessity that the person whose properties are attached or who are made accused in PMLA proceedings also be arrayed in the FIR and in the charge-sheet. k) There are no rare flora and fauna in the property as claimed by the Appellants except plantation of Mango and Guava plants supplied by the Forest Department. There are plantation of "Segun" (Teak) and other plants which were planted well before the alleged purchase or taken possession of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....efore the Adjudicating Authority under Section 5(5) of PMLA, 2002. v. There is no denial on the part of the respondent regarding the execution of registered deed of agreement to sale executed on 22.03.2013. vi. It is revealed from ANNEXURES-7, 8, 9, 10 & 14 that the Appellant had approached the Enforcement Directorate and informed them about its purchase of a plot of land in Sonapur from Saradha Realty India Ltd. The aforesaid annexures bears the seal of Enforcement Directorate as a token receipt of those letters. ANNEXURE-7 is the letter dated 06.05.2013 sent by Shri Pranav Kumar Sharma, Director of the Appellant/Company addressed to the CBI, Guwahati Office, Enforcement Directorate Guwahati Office, Director General of Assam Police and SSP (City) Guwahati. ANNEXURE-8 is the letter dated 07.05.2013 sent by the Appellant/Company addressed to the Enforcement Directorate Guwahati Office. ANNEXURE-9 is the letter dated 13.05.2013 sent by Shri Pranav Kumar Sharma, Director of the Appellant/Company addressed to the Assistant Director, Enforcement Directorate Guwahati Office. ANNEXURE-10 is the letter dated 05.06.2013 sent by Shri P. K. Sharma, Director of the Appellant/....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ory reply. x. Therefore, it is prima facie felt that the Appellant should have been made a party to the proceedings before the Adjudicating Authority in the interest of justice and complete adjudication of the case appellant should have been given proper opportunity being heard as provided under the provisions of PMLA, 2002. xi. We have gone through the judgment cited by the Respondent. The said judgment relates to the issue regarding transfer of the investigations to the CBI and expediting the investigation initiated by the Enforcement Directorate into the scam and institution of appropriate proceedings best on the same in accordance with law. The main issue we are dealing in the present proceeding is regarding the validity of the attachment of the property in question involved in the present case without hearing the Appellant. Therefore, the aforesaid judgment of Hon‟ble judgment of Supreme Court is hardly of any help to the respondent in the given fact and circumstances of the case. xii. We have also gone through the judgments of this Tribunal cited by the Appellant. The fact and issue of the judgments in the matter of "Ms. Kira....