TaxTMI 
TaxTMI 
2019 (1) TMI 1312
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..../2016 (Stay), FPA-PMLA-1406/MUM/2016, MP-PMLA-3082/MUM/2017 (Misc), MP-PMLA-2640/MUM/2016 (Stay), FPA-PMLA-1408/MUM/2016, MP-PMLA-3083/MUM/2017 (Misc), MP-PMLA-2641/MUM/2016 (Stay), FPA-PMLA-1409/MUM/2016, MP-PMLA-3084/MUM/2017 (Misc), MP-PMLA-2642/MUM/2016 (Stay), FPA-PMLA-1410/MUM/2016, MP-PMLA-3085/MUM/2017 (Misc), FPA-PMLA-1479/MUM/2016, MP-PMLA-3079/MUM/2017 (Misc), FPA-PMLA-1211/MUM/2016, MP-PMLA-2813/MUM/2016(Stay), FPA-PMLA-1491/MUM/2016 Justice Manmohan Singh Chairman For the Appellant : Shri Gaurav Agarwal, Advocate, Shri Gurmehar S. Sistani, Advocate For the Respondent : Mr. Neeraj Atri, Advocate, Mr. Rahul Narayan, Advocate And Mr. Shashwat Goel, Advocate JUDGEMENT FPA-PMLA-1104-1105, 1406-1410, 1479/MUM/2016, FPA-PMLA-1211 & 1491/MUM/2016 1. By this common order, I propose to decide all pending appeals and crossappeals filed by the above-mentioned parties. The details of parties/titles are mentioned in FPA-PMLA no. 1407 of 2016 printed above for noticing the array of parties before this Appellate Tribunal as also before the Adjudicating Authority PMLA. 2. The Respondents nos. 2, 3, 4 & 5 are the accused in the proceedings adopted by the Anti Corrup....
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....8223;s letter dated 16.07.2007 mentioned above. Thus the letters dated 16.7.2007 and 19.7.2007 together constitute the agreement / contract between SPCL and Respondent No. 3 and is hereinafter called "the subject Agreement". The said letters dated 16.7.2007 and 19.7.2007 are filed in the appeal. g) During the years 2007 and 2008, pursuant to the subject agreement mentioned above, SPCL advanced amounts aggregating to Rs. 84.50 Crores to M/s PRS Enterprises by way of cheques drawn on Standard Chartered Bank and Deutsche Bank. The details of the payments made by SPCL to PRS Enterprises given in paragraph No. 3.8 of the 1104 Appeal along with copies of Bank Statements of SPCL‟s Accounts with Standard Chartered Bank and Deutsche Bank are filed respectively in appeal. h) The payment of Rs. 84.50 Crores as aforesaid were deposited by Respondent No. 3 (Nilesh Thakur) into the Bank Account of M/s. PRS Enterprises (Respondent No. 6) with the Greater Bombay Co-operative Bank, Andheri, Mumbai ("GBCB") i) Pursuant to the subject Agreement, as per the instructions of the Respondent No. 3, SPCL also made payments aggregating to Rs. 57 Crores to Respondent No. 9 (i.e. M/s Acecard....
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.... 6 [M/s. PRS Enterprises], Respondent No. 7 [M/s. PRS Developers], Respondent No. 25 [M/s. Siddhivinayak Enterprises]. Respondent No. 3 is also the Promoter / Director of Respondent Nos. 6 to 19, 21 to 25 Companies and is also Trustee of Respondent No. 20 Trust [Thakur Family Trust] and all the said entities/ Firms/ Companies/ Trust were/are in the control of Respondent No. 3. The said entities / Firms/ Companies/ Trust controlled by Respondent No. 3 [Nilesh Thakur] are hereinafter collectively called "Nilesh Thakur Group". o) The immovable properties, vehicles Fixed Deposit Receipts ["FDR‟s] and the monies lying in Bank Accounts mentioned at (a) to (d) above are clearly of SPCL‟s ownership having been acquired out of SPCL‟s funds pursuant to the subject Agreement. The said immovable properties, Vehicles FDR‟s, amounts lying in Bank Accounts as also the amounts advanced M/s. SRB Enterprises and Kalyani Group have been subject matter of various Provisional Attachment Orders issued by Respondent No. 1 [Director of Enforcement] in PMLA proceedings on the allegation that the said properties constitute proceeds of crime. p) By his letters (both) dated 22.3.....
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....and Assessment Year 2010-11 are already filed. u) SPCL received Summons from Respondent No. 1 / Director of Enforcement requiring SPCL to produce some documents. The said documents were duly produced by SPCL. v) By way of its letter dated 25.6.2014, SPCL forwarded a copy of the Consent Decree passed by the Bombay High Court to Respondent No. 1 / Director of Enforcement and requested Respondent No. 1 not to attach the properties under the Consent Decree which belonged to SPCL. w) In February, 2015, Respondent No. 3 [Nilesh Thakur] informed SPCL that some properties of SPCL‟s ownership under the Consent Decree had been attached by the Respondent No. 1 and in respect thereof proceedings were pending before the Adjudicating Authority. x) In March, 2015, SPCL filed Execution Application in the Bombay High Court being Execution Application No. 1580 of 2015 for enforcement of the Consent Decree mentioned above. The Hon‟ble High Court has issued Notice under Order XXI Rule 22 of the CPC to the Defendants / Judgement Debtors therein. The said Notice is pending hearing before the Hon‟ble High Court, Bombay. y) By its Order dated 10.4.2015, the ITAT dismissed ....
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....rs on the basis of the first FIR being: (i) PAO No. 3 of 2012 dated 17.4.2012 PAO 3/12 was confirmed by the Adjudicating Authority by way of Order dated 31.8.2012 passed in Original Complaint No. 140 of 2012. (ii) PAO No. 7 of 2012 dated 27.11.2012 PAO 7/12 was confirmed by the Adjudicating Authority by way of Order dated 5.4.2013 passed in Original Complaint No. 169 of 2012. (iii) PAO No. 2 of 2013 dated 24.1.2013 PAO 2/13 was confirmed by the Adjudicating Authority by way of Order dated 21.6.2013 passed in Original Complaint No. 174 of 2013. SPCL was not made a party Defendant to the Original Complaint Nos. 140 of 2012, 169 of 2012 and 174 of 2013 mentioned at Notes 1 to 3 above and the decisions on the three Original Complaints confirming the attachment under the PAO‟s were rendered in SPCL‟s absence. 7.7 Respondent No. 1 issued the following Provisional Attachment Orders in September, 2014 and March, 2015 on the basis of the second FIR being: (i) PAO No. 19 of 2014 dated 30.9.2014 PAO 19/14 was confirmed by the Adjudicating Authority by way of Order dated 1.1.2015 passed in Original Complaint No. 370 of 2014. (ii) PAO No. 23 of 2014 ....
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.... of 2012, (ii) M.A 05 of 2015 in FPA-PMLA 888 of 2015 arising out of O.C. No. 174 of 2013 and PAO 2 of 2013, (iii) M.A 04 of 2015 in FPA-PMLA 889 of 2015 arising out of O.C. No. 169 of 2012 and PAO 7 of 2012, (iv) M.A 07 of 2015 in FPA-PMLA 895 of 2015 arising out of O.C. No. 370 of 2014 and PAO 19 of 2014, (v) M.A 06 of 2015 in FPA-PMLA 896 of 2015 arising out of O.C. No. 408 of 2015 and PAO 23 of 2014. Copy of Misc. Application No. 07 of 2015 isfiled as Annexure - "4" in Appeal no. FPA-PMLA- 1407 of 2016). 7.11 During the period 2015 to January, 2016, Respondent No. 1 [Director of Enforcement] through Counsel filed preliminary submission in each of the five 2015 M.A.‟s, whereby it was submitted, inter-alia, as under: (i) that the Judgment of this Tribunal in the case of Central Bank of India Vs. R. Mohandoss was not binding precedent for the Adjudicating Authority. (ii) that the Adjudicating Authority has no power to modify, recall or review any Order passed by him. (iii) the entire exercise being carried out by way of the 2015 M.A.‟s was misplaced and is beyond jurisdiction created by statute and hence the notice issued by the Adjudicating Aut....
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....judicating Authority directed that considering that no factual submission was made by Respondent No. 1 / Director of Enforcement and that in the PAO‟s / O.C.‟s in question, SPCL was not made party, it is considered fair and proper that Respondent No. 1 shall consider SPCL‟s claims under the proviso to Section 8 (2) of the PMLA and Respondent No. 1 shall give opportunity of hearing to SPCL. Respondent No. 1 was directed to decide the matter after proper examination and investigation. However, by the Order, the Adjudicating Authority directed that the confirmed PAO‟s [being the five PAO‟s referred to at Sr. Nos. 21 and 22 above] shall remain in force.Copy of the impugned Order dated 16.6.2016 is filed in Appeal no. FPA-PMLA- 1407 of 2016.) 7.16 Aggrieved by the common Order dated 16.6.2016 passed in the five 2015 M.A.‟s, SPCL filed Appeals in connection therewith [five Appeals in all] before this Hon‟ble Tribunal being Appeal Nos. (i) FPA-PMLA Appeal Nos. 1406 of 2016, (ii) FPA-PMLA Appeal Nos. 1407 of 2016, (iii) FPA-PMLA Appeal Nos. 1408 of 2016, (iv) FPA-PMLA Appeal Nos. 1409 of 2016, (v) FPA-PMLA Appeal Nos. 1410 of 2016....
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.... Act objecting to the attachment by way of the PAO‟s. By the said Misc. Applications, SPCL brought on record all the necessary facts and documents which established that it is the legal and beneficial owner of the properties sought to be attached by the Respondent No. 1 by way of the PAO‟s, that the same were not involved in money laundering in any manner and that the same were not proceeds of crime. Thereby, SPCL prayed for vacating the attachment and dismissal of the Original Complaints filed by Respondent No. 1. 8.3 In O.C. Nos. 465/15 and 495/15, certain entities of the Nilesh Thakur Group [who had been arrayed as party Defendants to the concerned O.C.‟s] also filed their Reply Statements opposing the said O.C.‟s and thereby the Nilesh Thakur Group also brought on record that all the properties being subject matter of the PAO‟s were of SPCL‟s ownership and entitlement and were purchased out of SPCL‟s funds under the subject Agreement and were required to be handed over to SPCL as per the mandate of the Consent Decree passed by the Bombay High Court. Thereby, the Nilesh Thakur Group also prayed for vacating the attachment and dismissa....
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....eals be dismissed with costs. 9. Details of various appeals filed by the appellant before this Tribunal along with description of properties which are subject matter of said appeals, are as follows:- 1. Appeal FPA-1406/16 (OC No.140/12): Sr. No. Particulars Consideration mentioned in the Documents 1 Ro House/ Bunglow No.62/65, Road No.RSC-13, MHADA Layout, Gorai, Borivali West, Mumbai-92 [103 .70 sq. mtrs] 74,00,000 2 Shop No.9, Shri Complex, B-Wing, Ground Floor, LT Road, Borivali (W), Mumbai-91 [300 sq. ft.] 21,00,000 3 Flat No.1D/201, 2nd Floor, NG Sun City, Thakur Village, Kandivali (E), Mumbai-101 [294 sq. ft] 39,54,170 4 Hotel Shoreline at Darbar Road, Murud, Janjira, [700 sq. mtrs] 1,80,00,000 5 Office of Aishwarya Properties [shop] at Vandana CHSH, Near Alibagu Bus Depot, Alibaug [670 sq. ft] city survey No.722, 722/1 and 722/2 11,00,000 6 Land 0-49-2 (HR) at villgeDhokawade, TalukDighod, Distt. Alibagu, S. No.237 (old) S. No.65/3 & 46/2) with two houses no.540(area 741 sq. ft.) and No.1663 (area 500 sq. ft) 3,44,40,000 7 Gala No.1 & 2, Puja CHS, City Surey No.1125, Alibagu [total area 622 sq. ft.] ....
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.... Ace Card Agro Ind Pvt Ltd 7859.57 11 KAPOL 5328 Ace Card Power Pvt Ltd 332393.07 12 KAPOL 5329 Ace Card Media Pvt Ltd 182.76 13 KAPOL 5330 Ace Card HR Pvt Ltd 2862.64 14 KAPOL 5331 Ace Card Hotels & Resorts Pvt Ltd 182.76 15 KAPOL 5332 Ace Card Construction Pvt Ltd 5031732.65 16 KAPOL 5333 Ace Card Reality Pvt Ltd 675.76 17 KAPOL 5392 Dhan Share Trading Pvt Ltd 9871770.97 18 KAPOL 16334 Thakur Family Trust 52485092.59 19 KAPOL 211 Ice Card Construction Pvt Ltd 2502710.87 20 KAPOL 212 Ace Card Reality Pvt Ltd 7699480.87 21 KAPOL 230 Ace Card Power Pvt Ltd 1539810.23 22 KAPOL 231 Ace Card Media Pvt. Ltd 1539810.23 23 KAPOL 232 Ace Card Hotels & Resorts Pvt. Ltd. 1539810.23 24 KAPOL 233 Ace Card Export Pvt. Ltd 4620179.23 25 KAPOL 5392 Dhan Share Trading Pvt Ltd 98,71,770.97 9,08,65,614 26 KAPOL FDR ....
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.... Mumbai. 2,63,95,100 3 Flat No.31, A-Wing, Swapnashilp, situated at final Plot No. 52, Mahant Road, VilleParle (East), Mumbai. 1,23,95,100 4 Flat No. 1- C Block- C Viceroy Court CHSL. ThakurVillage, Kandivali (East), Mumbai 400101 61,25,100 5 Flat 1208, B Wing, BorivaliDwarkanath CHS (Vijay Nagar), Borivali, Mumbai 47,37,600 5,01,52,900 7. Appeal No.FPA-1105/15 [OC No.495/15]: Vehicle Made Vehicle Registration no. Vehicle‟s owner name Amount AUDI Q MH-02-CH-777 M/s. Acecard Trading Pvt. Ltd. 5,700,000 HONDA CRV MH-092-BR-3993 M/s. Acecard Trading Pvt. Ltd. 2,600,000 LAND ROVER MH-02-BY-3900 AcecardInfrasolPvt. Ltd. 81,93,407 Total: 1,64,93,407 8. Appeal No.FPA-1211/16 [OC No.512/15]: A sum of Rs. 61,42,00,000/- was given on loan by Nilesh Thakur Group to Kalyani Education Group and other connected persons. The ED has sought to attach properties worth Rs. 56,02,05,718/- standing in the name of Kalyani Charitable Trust, Kalyani Education Pvt. Ltd. and one RavindraSapkal . The properties which....
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....n Branch 117892 14.07.2008 Rs.5 crores Standard Chartered/Mumbai Metro Main Branch 44743 21.07.2008 Rs.10 crores Deutsche Bank/ Kodak House Total Rs. 84.50 Crores 11. The detai ls of payments made to M/s. AcecardInfrasolPvt. Ltd., company control led by Ni lesh Thakur :- CHEQUE 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 12. The fol lowing properties were purchased by Ni lesh Thakur Group:- 13. Properties attached in OC No.140/12: (The SPCL has chal lenged the aforesaid attachment in PMLA Appeal No.1406/2016) Sr. No. Date of Execution of Documents Consideration mentioned in the Documents Particulars ....
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....07/2016) Sr. No. Date of Execution of Documents Consideration mentioned in the Documents Particulars 1 27.03.2008 13,91,72,141 Land totally admeasuring 76.62 acres [30.64.6 hectare] in 3 villages in Alibagu namely, 26.91.40 Hectare in village Waghvira, 3.41.3 Hectare in Village Chikali and 0.31.9 Hectare in village Hemangar [totally valued at Rs. 19,19,25,000/- out of which Rs. 5,27,52,859/- has already been attached in the investigation carried out under ECIR/03/11. Thus remaining consideration for purchase of Surya Roshni land amounting to Rs. 13,91,72,141 Total 13,91,72,141 Details of fixed deposits: Sr. No Name of Bank Bank Account No./ FD No. Name of Entity/Company On 08.09.2014 1 GBCB 1576 PRS Developers 41635.92 2 GBCB 1537 PRS Enterprises 2626.05 3 GBCB 30200761612 Aishwarya Investments 18522 4 GBCB 10216009856 AcecardInfrasol Pvt Ltd 1864100.75 5 GBCB 30200287913 Shoreline Exports 3124 19,30,008.7 6 GBCB FDR 30201322722 AcecardInfrasol Pvt Ltd. 13290421.33 1,32,9....
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....tive Society, Alibag Area 217 Sq. Ft. (10.16 sq. Mtrs) (Built up area) 2 11.09.2008 6,78,000 Commercial Shop No.6, Shrutisarang Cooperative Society, Alibag Area 376 Sq. Ft. (Built up area) 3 11.09.2008 6,74,000 Commercial Shop No.7, Shrutisarang Cooperative Society, Alibag Area 376 Sq. Ft. (Built up area) 4 11.09.2008 6,74,000 Commercial Shop No.8, Shrutisarang Cooperative Society, Alibag Area 376 Sq. Ft. (Built up area) 5 11.09.2008 6,74,000 Commercial Shop No.9, Shrutisarang Cooperative Society, Alibag Area 382 Sq. Ft. (Built up area) 6 Agreement dated 28.07.2009 &Rectification Deed dated 17.08.2009 Agreement value- 1,15,50,000 + other charges Rs. 92,661 + Stamp Duty, registration fee etc. Rs. 6,23,955 Totalling to 1,22,66,616 Flat No.202, 2nd Floor, Sapphire, Ram Mandir Road, MG Cross Road, Vile Parle (E), Mumbai-400057 area 622 sq.ft. (carpet area) 7 15.07.2009 6,00,000 Room/ residential plot admeasuring area 11.20 sq. Mt. (built up area) next to building No.10, Old MHB Colony, Borivali West, Mumbai-400091 8 15.07.2009 5,00,000 Room/ residential plot admeasuring area 150 sq. ft. next to building....
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....perties attached by PAO 3 of 2016 being subject matter of OC 596 of 2016.Balance lying in the Bank Account No. 703266871 of M/s SRB Developers (being Respondent No. 2 Firm) maintained with Indian Bank, CBD Belapur Branch, Navi Mumbai to the extent of Rs. 1,15,00,000/- (Rs. 1.15 Crores) 24. Respondent No. 2 Firm had agreed to issuance of Letters of allotment in respect of the ownership Flats after approval of the building plans by the Municipal Authorities. 24.1 Respondent No. 4 had made payment of a total sum of Rs. 1.15 Crores to Respondent No. 2 Firm out of monies of SPCL and investment had been made for SPCL‟s benefit. 24.2 Since the plot of land at Kamothe became subject matter of litigation, Respondent No. 2 Firm‟s Partners did not issue the Letters of Allotment in respect of the Flats. The deposit of Rs. 1.15 Crores made by Respondent No. 4 out of SPCL‟s funds continued to lie all this while with Respondent No. 2 Firm despite requests made by Respondent No. 4 to Respondent No. 2 Firm for refund of the said amount. This amount of Rs. 1.15 Crores or has to be refunded and made over to SPCL towards satisfaction of the Consent Decree passed by the Bomba....
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.... 28. Properties attached in OC No.512/15: - (The SPCL has chal lenged the aforesaid attachment in PMLA Appeal No.1211/2016) A sum of Rs. 61,42,00,000/- was given on loan by Ni lesh Thakur Group to Kalyani Education Group and other connected persons. The ED has sought to attach properties worth Rs. 56,02,05,718/- standing in the name of Kalyani Charitable Trust, Kalyani Education Pvt. Ltd. and one RavindraSapkal. 28.1 The properties which are subject matter of attachment are as follows:- s. no. Date of execution of document Consideration mentioned in the deed Location 1 04.11.2011 65,00,000 Office premises at FO-22 [area 374.40 sq. ft.] alongwith open parking FD-10 at Shubhada CHS Pochkanwala Road Worli, Mumbai in the name of Ravindra Sapkal purchased from the account of Kalyani Charitable Trust‟s Axis Bank account 2 65,00,000 Fixed Deposit Syndicate Bank Byuculla 40,50,00,000 Building alongwith ancillary structures and the land upon which said immoveable property stands today in the Campus of Kalyani Charitable Trust at plot Gut No.335, 340, 341, 342, 345, 367 of Village Anjaneri, Tal. Trimbakeshwar....
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....f crime involved in money laundering. 28.5 Based on the aforesaid PAO No. 18/15, Respondent No. 1 filed O.C. 512/15 before the Adjudicating Authority. 28.6 Being aggrieved by the attachment of properties in question, SPCL filed a Misc. Application on 28.10.2015 under proviso to section 8 (2) of the PML Act for being impleaded as a party Defendant to the said Original Complaint as it is the case of SPCL that it is the beneficial and the legal Owner of the aforesaid immovable properties, bank balances and fixed deposits, provisionally attached by the Enforcement Department as the said properties have been purchased/ created from the funds made available by Nilesh Thakur Group to the Kalyani Group, which in turn were advanced by SPCL to the Nilesh Thakur Group under the subject Agreement for land aggregation. 28.7 In view of the said Misc. Application, the Adjudicating Authority directed that SPCL be made a party Defendant to the Original Complaint and accordingly SPCL was arrayed as Defendant No. 12 in the proceedings of the O.C. 512/15. 28.8 At the hearing before the Adjudicating Authority on 18.11.2015, Respondent No. 1 submitted a statement giving his comments to the M....
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....tted by the respondent no.1 as wel l as Ni lesh Thakur, his brother Nitish Thakur and other parties. 33. Ni lesh Thakur, either in his own name or in the name of groupcompanies/sole proprietorship concerns, acquired lands and had also invested some of the money in buying flats, cars, and also put some money in fixed deposits to earn interest. This fact is also denied by any party including Ni lesh Thakur. 34. Properties acquired by the Nilesh Thakur Group from the funds advanced by SPCL to PRS Enterprises and AcecardInfrasolPvt. Ltd. between the period September 2007 to August 2009 are as below:- Sr. No. Date of Purchase Name of Purchaser Consideration for the properties advanced from the bank account of: Consideratio n price mentioned in the Deed / document ["Rs."] Description of property O.C. NO. 1. 01.11. 2007 PRS Enterprises - Proprietor Nilesh Janardan Thakur PRS Enterprises A/c No. 1537 of GBCB Bank 1,80,00,000/ - Hotel Shoreline at Darbar Road, Murud, Janjira, [700 sq. mtrs] 140/12 2. 18.01. 2008 Nilesh Janardan Thakur PRS Enterprises A/c No. 1537 of GBCB Bank 39,54,170/- Flat No.1, D/201, 2^nd Floor, NG Sun C....
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....o. 3, 'H' wing, Flower Valley, Mahad. 465/15 11. 11.09. 2008 Nilesh Janardan Thakur 24,00,000/- Gala No.1 & 2, Puja CHS, City Surey No.1125, Alibaug [total 140/12 35. As per settled law, being innocent party and untainted money, the said purchases/investments cannot be termed as money laundering as defined under Prevention of Money Laundering Act, 2002 as the money used for purchase of land/ flats, cars or to invest in f ixed deposits are not proceeds of crime as even admitted by the counsel for the respondent that entire money paid to Ni lesh Thakur was clear and untainted amount . SPCL is admittedly not arrayed in FIR, no charge-sheet is fi led nor any prosecution complaint under PML Act, 2002 is fi led against the SPCL. 36. Counsel for the Enforcement Directorate (ED) tendered to this Tribunal and furnished to the appellant‟s Counsel, a Compilation of Documents (undated) (COD). At the hearing on 03.10.2018, the Counsel for ED sought to make submissions before this Tribunal on the basis of the purported documents annexed to the COD. 36.1 The same was objected to by the Appellant‟s Counsel since the documents attempted to be brou....
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....thereafter. There is no person known as Gautam Patel in the employment of the Appellant Company. It is also deposed by him that there is no person by the name of Gautam Patel in the employment of the Appellant Company. The Appellant Company has nothing to do with the formation of Strategic Infrasol LLC and the purported statement of Nitish Thakur in that behalf is completely false, motivated and without basis. 39. It was also deposed that there was no material at all before the ED to arrive at a reason to believe that the subject properties were proceeds of crime involved in money laundering. Having realized the same, the ED has tried to bring in at this belated stage, certain alleged documents to somehow ensure confirmation of attachment. The attachment of the subject properties deserves to be revoked, the attachment under the PAOs raised and the properties released from attachment which will be achieved if the above appeals are decided in favour of the Appellant thus setting aside and reversing the orders of the Adjudicating Authority. In view of such position and any response to the said affidavit, the contention of ED cannot be accepted in the absence of any cogent evidence.....
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....e E.D. vacated / raised and the properties freed from attachment, all the properties of which possession has been taken by the E.D. from the Nilesh Thakur Group entities have to be returned by the E.D. In that event, this Tribunal will have to provide and direct the return by the E.D. of these properties. 44. As far as the return by the E.D. of the amount of the subject investments is concerned, it is hereby brought to the notice of this Tribunal that Kapol Bank has been in financial trouble for the last two to three years and the Reserve Bank of India ["RBI"] had issued circular / press release dated 31.03.2017 under the provisions of Section 35A of the Banking Regulation Act 1949 read with Section 56 of the Reserve Bank of India Act whereby, inter-alia, the RBI has issued necessary directions concerning Kapol Bank. 45. The relevant portion of the circular / press release dated 31.03.2017 is reproduced below for convenience: "The Reserve Bank of India (vide directive DCBS.CO.BSD-I/D- 09/12.22.111/2016-17 dated March 30, 2017) has placed The Kapol Co-operative Bank Ltd., Mumbai Maharashtra, under Directions. According to the Directions, depositors will be allowed to wit....
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....L in the proceedings of Execution Application No. 1580 of 2015 filed by SPCL against Nilesh Thakur and Others in the Bombay High Court as has also been stated by the Nilesh Thakur Group entities in the proceedings of the above Appeals. Under the Consent Decree Nilesh Thakur Group is required to make payment to SPCL of amounts more that Rs. 350 Crores as of today as per the case of decree-holder. By way of Chamber Summons No. 1554 of 2016 filed in the proceeding of the Execution Application, SPCL has specifically sought Orders against the E.D. relating to the amounts of the subject investments with Kapol Bank which have been lying with the E.D. since June 2015. The E.D. has been made party Respondent to the Chamber Summons. The prayer made against the E.D. by way of the Chamber Summons in connection with the amount / monies representing the subject investment amounts is as under: "That Respondent No. 1 [being the Deputy Director, Directorate of Enforcement] be ordered and directed by this Hon'ble Court to deposit with the Applicants within two weeks or such other period as may be fixed by this Hon'ble Court the sum of Rs. 38,08,65,613/- [Rupees Thirty eight crores eight lacs s....
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....pany / SPCL. The funds provided by Appellant Company/ SPCL to the Nilesh Thakur Group are not proceeds of crime. Hence the attached properties, acquired out of the same, cannot be termed in any manner as "proceeds of crime". All these factual position is not controverted by the counsel of ED and he admits that nothing contrary is available with ED. In view of admitted fact, I am of the view that the Provisional Attachment Order ought not to have been confirmed by the Adjudicating Authority. 53. The Adjudicating Authority failed to appreciate that the finding of the Respondent No. 1 / Org. Complainant regarding layering of transaction is not correct as the flow of untainted money from the Appellant Company/ SPCL and the transfers, for purchase of the properties in question, is not layering with a view to camouflage the origin of the tainted money. No tainted money is being projected as untainted money and therefore, the finding that there is money laundering is an incorrect finding and is completely perverse and liable to be set aside. The Adjudicating Authority failed to appreciate that the contract between the parties contained in the letters dated 16.7.2007 and 19.7.2007, cons....
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.... made by the Assessing Officer under the Income Tax Act. The Assessing Officer's observations and Order were set aside on Appeal by the Appellant to the CIT (Appelas) and on further Appeal by the Income Tax Department, the Order and Judgment of the CIT (Appeals) was confirmed by ITAT. 59. The basis and foundation of the ACB's Charge Sheet has been dis-approved. The adverse observations of the Assessing Officer in the assessment of the Appel lant no longer survives once the CIT (Appeals) Order which has been confirmed by the ITAT. 60. It is wrong to hold that the Orders of the Income Tax Authorities have no connection with the proceedings under the PML Act. The contention of the ED is misconceived, contrary to the record and was incorrectly held by the Adjudicating Authority without consulting law and appl ication of mind by way of the impugned Orders whereby the PAO's were confirmed. 61. The payments under the said agreement/contract made to Nilesh Thakur has no connection with Nitish Thakur, who was a Government servant. Simply because Ni lesh Thakur is the brother of Nitish Thakur, the money paid by the Appel lant Company to Ni lesh Thakur and the properties ....
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....etters of Divisional Commissioner, Konkan Division dated January and February, 2010, which are also annexed with the appeal. 65. It is clear that Shri Nitish Thakur has not attended office effectively from 02.12.2002 and has barely discharged any official duties as a public servant from said date. He was also subsequently placed under suspension and removed from service in 2012. The said affidavit would show that Nitish Thakur was a Government servant in the State of Maharashtra from 1994, but he has been absent from duties right from December, 2002. Nitish Thakur did not discharge any official function from December, 2002 onwards. 66. The Appellant Company paid money to Nilesh Thakur Group for purchase of properties in the year 2007 to 2009. Obviously, the said payments cannot and did not have had any nexus with Nitish Thakur. When Nitish Thakur has not been attending office from December, 2002, the payments made by the Appellant Company to Nilesh Thakur (in 2007 to 2009), could not have had any nexus with the discharge of duties by the public servant. Therefore, it is clear and evident that the properties standing in the name of Nilesh Thakur Group have been wrongly and ....
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....the above Appeals arise, are based on the following alleged scheduled offences under the PMLA: (i) The scheduled offences concerning Original Complaint Nos. 140 of 2012, 169 of 2012 and 147 of 2013. These relate to offences under Sections 387, 467, 471 and 420 of the IPC. (ii) The scheduled offences concerning Original Complaint Nos. 370 of 2014, 408 of 2014, 465 of 2015, 495 of 2015, 512 of 2015 and 596 of 2016. These relate to offences under Sections 109 IPC, 13(2) r/w 13(1)(e) of the Prevention of Corruption Act ["the POC Act"]. 73. The Appellant / SPCL had advanced to the Nilesh Thakur Group a total sum of Rs. 141.50 Crores from September 2007 to August 2009. A sum of Rs. 111.50 crores was advance between the period 26.9.2007 to 1.6.2009 while the remaining Rs. 30 Crores was advance after 1.6.2009. It is the case and contention of the ACB that the advances / payment by SPCL of the said amount of Rs. 141.50 Crores to the Nilesh Thakur Group, constitutes an offence committed by Nilesh Thakur and Ors. under the provisions of Section 13 of the POC Act. Pertinently, the said offence under the POC Act came to be notified as a scheduled offence under paragraph 5 of Part A of ....