TaxTMI 
TaxTMI 
2019 (1) TMI 1249
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....5 (Stay) FPA-PMLA-1003/MUM/2015, MP-PMLA-3037/MUM/2016 (Misc.) MP-PMLA-2053/MUM/2015 (Stay) FPA-PMLA-1004/MUM/2015, MP-PMLA-3038/MUM/2016 (Misc.) MP-PMLA-2054/MUM/2015 (Stay) FPA-PMLA-1005/MUM/2015, MP-PMLA-3039/MUM/2016 (Misc.) MP-PMLA-2055/MUM/2015 (Stay) FPA-PMLA-1006/MUM/2015, MP-PMLA-3040/MUM/2016 (Misc.) MP-PMLA-2056/MUM/2015 (Stay) FPA-PMLA-1007/MUM/2015, MP-PMLA-3041/MUM/2016 (Misc.) MP-PMLA-2057/MUM/2015 (Stay) FPA-PMLA-1008/MUM/2015, MP-PMLA-3042/MUM/2016 (Misc.) MP-PMLA-2058/MUM/2015 (Stay) FPA-PMLA-1009/MUM/2015, MP-PMLA-3043/MUM/2016 (Misc.) MP-PMLA-2059/MUM/2015 (Stay) FPA-PMLA-1010/MUM/2015, MP-PMLA-3044/MUM/2016 (Misc.) MP-PMLA-2060/MUM/2015 (Stay) FPA-PMLA-1011/MUM/2015, MP-PMLA-3045/MUM/2016 (Misc.) MP-PMLA-2061/MUM/2015 (Stay) FPA-PMLA-1012/MUM/2015, MP-PMLA-3033/MUM/2016 (Misc.) MP-PMLA-2049/MUM/2015 (Stay) FPA-PMLA-1000/MUM/2015, MP-PMLA-3048/MUM/2016 (Misc) MP-PMLA-2203/MUM/2015 (Stay) FPA-PMLA-1112/MUM/2015, MP-PMLA-3049/MUM/2016 (Misc) MP-PMLA-2204/MUM/2015 (Stay) FPA-PMLA-1113/MUM/2015, MP-PMLA-3050/MUM/2016 (Misc.) MP-PMLA-2205/MUM/2015 (Stay) FPA-PMLA-1114/MUM/2015, MP-PMLA-3051/MUM/2016 Misc MP-PMLA-2206/MUM/2015 Stay, FPA-PMLA-1115/MUM/2015, MP-PMLA-305....
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....n Standard Chartered Bank and Deutsche Bank accounts of SPCL. The cheques were deposited on various dates in the account of M/s PRS Enterprises (sole proprietary concern of Nilesh J. Thakur) held with Greater Bombay Coop. Bank, Andheri, Mumbai A/c No. 1537. Statement of Account are filed in appeal no.FPA-PMLA NO. 941 of 2015. e) Similarly, between 04.11.2008 and 18.08.2009, Nilesh J. Thakur received from SPCL, a further sum of Rs. 57 Crore as an advance for the purchase of lands as specified in the contract between the parties. f) These cheques were deposited in the account of M/s Ace Card Infrasol Pvt. Ltd (AIPL), which is a private limited company under the ownership and control of Nilesh J. Thakur. These accounts were held with Greater Bombay Coop. Bank and Union Bank. Statement of Account are filed in Appeal No. 941 of 2015. In this manner, and for the abovementioned purpose, Nilesh J. Thakur and/or his firms received a total sum of about Rs. 141.5 Crores from SPCL. g) During the year 2008-2020, in furtherance of the contract with SPCL, Nilesh J. Thakur purchased various movable and immovable properties with the funds received from SPCL. Since all the funds could no....
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....011, whereby Nilesh J. Thakur admitted his liability to return the amount loaned/advanced to him. The Bombay High Court has passed the decree the Suit No. 2576 of 2011in terms of the above vide its consent decree dated 19.10.2011 and, inter alia, directed the Defendant No. 3 therein (Nilesh J. Thakur) to refund the monies to SPCL and hand over any properties purchased with the fund of Rs. 141.5 crores received from SPCL. m) FIR dated 14.3.2012 was registered, by the Anti-Corruption Bureau ["ACB"] under Sections 1 (1)(e) & 13 (2) of the Prevention of Corruption Act read with Section 109 of the IPC, inter-alia, against Nitish J. Thakur, the brother of Nilesh J. Thakur, alleging that Nitish J. Thakur had amassed disproportionate assets to the tune of Rs. 118.39 Crores during his tenure as an officer of the Government of Maharashtra. n) Provisional Attachment Order (PAO) No. 3/2012 passed in Original Complaint (OC) No. 140/2012 on 17.04.2012. o) Respondent No. 1 [Dy. Director of Enforcement] initiated the present proceedings under the PML Act 2002 and registered a complaint being ECIR No. 6/MZO/2012 dated 18.06.2012 under Sections 3 and 4 of the PMLA. p) Impugned Order pass....
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.... 169/2012 thereby confirming the attachment of the following properties of the Appellant in PAO No. 7/2014 dated 27.11.2012: i) City Survey No. 73, Hissa No. 0.30.6, City Survey 1009, Alibag- Rs. 39 Lacs ii) Plot no. 191/17.1 opposite Koteshwari Temple, Murudjanjira- Rs. 45.1 Lacs iii) Shop No. 9, Parmar Complex, Pali- Rs. 4.9 Lacs TOTAL VALUE OF PROPERTIES-Rs. 89,00,000/- Against the Impugned Order 05.04.2013, Nilesh Thakur has preferred FPA-PMLA No. 940/2015. u) In Appeal against the abovementioned Income Tax Assessments, the CIT [Appeals] after considering all documents and records, by its Order dated 17.5.2013 found that the transactions between SPCL and the Appellant were „advances for purchase of land‟ and as such were made for legitimate business purpose under the contract between the parties. The CIT (Appeals) allowed SPCL‟s Appeal for A.Y.s 2008-09, 2009-10 and 2010-11. v) Impugned Order passed by the Respondent No. 1 on 21.06.2013 in OC No. 174/2013 thereby confirming the attachment of the following immovable properties of the Appellant in PAO No. 2/2013 dated 24.01.2013: Immovable properties admeasur....
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....) [Ace Card Power] KAPOL- 230 (Rs. 15,39,810.23/-) [Ace Card Power] KAPOL- 5329 (Rs. 182.76/-) [Ace Card Media] KAPOL- 231 (Rs. 15,39,801.23/-) [Ace Card Media] KAPOL- 5332 (Rs. 50,31,732.65/-) [Ace Card Const.] KAPOL- 211 (Rs. 25,02,710.87/-) [Ace Card Const.] KAPOL- 5331 (Rs. 182.76/-) [Ace Card Hotels] KAPOL- 232 (Rs. 15,39,810.3/-) [Ace Card Hotels] KAPOL- 5327 (Rs. 7859.57/-) [Ace Card Agro Ind.] HSBC-3014412001(Rs.3,18,519.66/-) [Ace C. Agro Ind.] KAPOL- 5295 (Rs. 36,90,134.58/-) [Ace Card Trading] KAPOL- 5333 (Rs. 675.76/-) [Ace Card Reality] KAPOL- 212 (Rs. 76,99,480.87/-) [Ace Card Reality] TOTAL VALUE OF PROPERTIES- Rs. 53,57,01,736/- Against the Impugned Order 01.01.2015 the following appeals have been preferred: 1. FPA-PMLA NO. 941/2015 by Nilesh Thakur; 2. FPA-PMLA NO. 1002/2015 by Ace Card HR; 3. FPA-PMLA NO. 1003/2015 by Ace Card Export; 4. FPA-PMLA NO. 1004/2015 by Dhan Shree trading; 5. FPA-PMLA NO. 1005/2015 by Ace Card Infrasol; 6. FPA-PMLA NO. 1006/2015 by Ace Card Power; 7. FPA-PMLA NO. 1007/2015 by Ace Card Media; 8. FPA-PMLA NO. 1008/2015 by Ace C....
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....pugned Order POA No. Date of POA OC No. Appeals filed 31.08.2012 3/2012 17.04.2012 140/2012 i. FPA-PMLA 937/2015 ii. FPA-PMLA 1001/2015 21.06.2013 2/2013 24.01.2013 174/2013 i. FPA-PMLA 938/2015 01.04.2015 23/2014 31.12.2014 408/2015 i. FPA-PMLA 939/2015 ii. FPA-PMLA 1000/2015 05.04.2013 7/2014 27.11.2012 169/2012 i. FPA-PMLA 940/2015 01.01.2015 19/2014 30.09.2014 370/2014 i. FPA-PMLA 941/2015 ii. FPA-PMLA 1002-12/2015 z.c) The Impugned Order passed by the Respondent No. 1 on 27.08.2015 in OC No. 465/2015, thereby confirming the attachment of the following properties of the Appellant in PAO No. 13/2015 dated 26.03.2015: i) Flat No. 3,‟H‟ Wing, Flower Valley, Mahad: Rs. 5,00,000/- ii) Flat No. 1-C Block C Viceroy Court CHSL. Thakur Village, Kandivali (East), Mumbai: Rs. 61,25,100/- [Subject matter of Consent Decree] Following property of Ace Card Trading Pvt. Ltd. was attached: iii) Flat 1208, B Wing, Borivali Dwarkanath CHS (Vijay Nagar), Borivali, Mumbai: Rs. 47,37,600 Following property of Ace Card Infrasol Pvt. Ltd. was attached: i....
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....aundering Act, 2002 have not been satisfied in the present case, but also failed to appreciate that the Appellant, inter alia, had adequately demonstrated, with supporting evidence, "the sources of income, earning or assets, out of which or by means of which he has acquired the property attached...". b) The Adjudicating Authority was duty bound to declare that the attachment was entirely illegal and, to set aside the same. Instead, a perusal of the Impugned Order, would reveal that the impugned Order has, arbitrarily and without application of mind, confirmed the illegal attachment in a most mechanical fashion warranting interference by this Hon‟ble Tribunal. c) The Adjudicating Authority failed to appreciate that failure to comply with the express mandate of S. 5 of the Act renders the entire proceedings illegal and the Hon‟ble Authority ought not to have confirmed the Provisional Attachment Order on this ground alone. (Aslam Mohammed Merchant vs. Competent Authority, (2008) 14 SCC 186, rendered in the context of S. 68- H of NDPS Act which is substantially in parimateria with S. 5 r/w S. 8 of PMLA). d) In this regard, it is relevant to mention that the Adju....
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....eceived by the Appellant, Nilesh J. Thakur and his group concerns. The funds were transferred, through normal banking channels from legitimate accounts of SPCL, in furtherance of a written contract which is evidenced by the exchange of offer letter dated 16.07.2007 and acceptance letter dated 19.07.2007. 10. It is well settled that a contract can be formed by exchange of correspondence. In fact, even an oral exchange of promises is enough to form a contract. Section 10 of the Contract Act defines what agreements are contracts as under: "All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Nothing herein contained shall affect any law in force in India and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to registration of documents." 11. The contract entered into by the parties on 19.07.2007 was not required to be registered or stamped, since it did not by itself, create any rights in property for either party and only spoke of futur....
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....EQUE NO. DATE AMOUNT DRAWN ON BANK/BRANCH 4744 04.11.2008 Rs.10 crores Deutsche Bank/Kodak House Branch 659232 22.12.2008 Rs.2 crores Standard Chartered/Mumbai Metro Main Branch 44749 23.01.2009 Rs.5 crores Deutsche Bank/Kodak House Branch 002482 24.04.2009 Rs.10 crores Standard Chartered/MG Road Branch 243883 23.06.2009 Rs.10 crores Standard Chartered/MG Road Branch 243848 18.08.2009 Rs.20 crores Standard Chartered/MG Road Branch Total Rs.57 Crores The said funds were thereafter transferred to various group entities under ownership and control of the Nilesh J. Thakur and used to purchase properties and make investments through the said entities. 14. On 22.03.2010, M/s PRS Enterprises and AceCardInfrasol Pvt. Ltd. issued letters confirming to SPCL that they would perform the contract, and to this end, the monies had been invested in properties and fixed deposits. 15. Mr.Neeraj Atri who is appearing on behalf of the respondent has argued the above appeals and other connected appeals filed by Shapoorji Pallonji & Co. Pvt. Ltd. as well as Kalyani Education Pvt. Ltd.by st....
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.... the Order and Judgement dated 10.4.2015. passed by the ITAT. 17. Admittedly, as the performance of the Appellant had not proceeded satisfactorily, SPCL filed a suit before the Bombay High Court being Suit No. 2576 of 2011 [SPCL Vs. Nilesh Thakur &Ors.]. The Bombay High Court, by its consent decree dated 19.10.2011 directed the Defendant No. 3 to refund the monies to SPCL and hand over any properties purchased with the fund of Rs. 141.5 crores received from SPCL. It may be noted that even under the Contract between the parties dated 19.07.2007, the Appellant was obligated to refund the amounts to SPCL in event of his failure to perform the contract. 18. Under the consent decree dated 19.10.2011, the Appellant is bound to return the monies and properties as directed by the Hon‟ble Bombay High Court. However, as a result of the attachment in the present proceedings, the decree of the Hon‟ble Bombay High Court could not be given effect to by the Appellant and the present proceedings come in the way of the Appellant discharging his liabilities under the binding decree passed by the Hon‟ble High Court. It may be noted that the properties named in the schedules to....
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.... ITAT reversed the findings of the Assessing Officer and the CIT Appeals and held that the monies received by the Appellant from SPCL was a business advance received under the subject agreement and was not income of the Appellant. Therefore, the ITAT set aside the Order passed by the CIT Appeals and directed the Assessing Officer [ITO] to delete the addition made under Section 56 (2)(vi) of the Income Tax Act with regards to the advance received by the Appellant from SPCL. Thus by the said Order and Judgment the ITAT has confirmed and upheld the Appellant‟s statement and assertion that the monies received by me from SPCL was a business advance under the subject agreement for land aggregation and was not income. 23. In April 2015, by way of Order and Judgment dated 10.4.2015 passed by the ITAT in the Orders passed relating to the assessment of SPCL, in relation to the same transaction under the subject agreement for land aggregation, it was, inter-alia, held by the ITAT that the amounts were advanced by SPCL to the Appellant towards legitimate business advances which has been noted by the ITAT bench which delivered the said Order and Judgment dated 17.11.2017 on the Appella....
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....fact and event in order to decide the real controversy between the parties. Therefore, it is vital decision which would go and decide as to whether the attachment under the PAO‟s issued by Respondent No. 1 is to be vacated and the properties covered thereby freed from attachment. The said Order and Judgment had not been passed at the time of filing of the present Appeal, otherwise the same could not have been produced earlier. The same has not been set-aside by any court as informed by the parties. Therefore, the said subsequent event is taken on record which is brought by the appellant. There is also no opposition to this respect by the ED. 28. There is no basis for the allegation of the Respondent No. 1 that the funds were tainted proceeds of crime, and that were paid by SPCL to the Appellant in consideration for alleged favours done by the Appellant‟s brother, Nitish J. Thakur while discharging his official functions. Rather, during the hearing of appeals, it was admitted on behalf of respondent no. 1 that the funds were not connected to any criminal activities. It was a pure money. The Respondent No. 1 does not even allege or specify as to what alleged illegal ac....