TaxTMI 
TaxTMI 
2019 (9) TMI 428
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....hereinafter referred to as the "Impugned Order") passed by the Adjudicating Authority. Facts 2. On the basis of a reference from the Central Vigilance Commission, New Delhi vide its letter bearing number 012/COL/020/1716 dated 13.04.2012, it appears that the Central Bureau of Investigation ("CBI") initiated a Preliminary Enquiry, which culminated in the registration of an FIR bearing number RC- 219-2013-E-0002 dated 08.03.2013 under section 120B read with Section 420, IPC against (i) M/s Jharkhand IspatPvt. Ltd., (ii) Shri R.S. Rungta; (iii) Shri R.C. Rungta and (iv) other Directors of M/s Jharkhand IspatPvt. Ltd., with CBI/EO-I/New Delhi (hereinafter referred to as the "said FIR"). 3. On the completion of the investigation conducted pursuant to the said FIR, the CBI filed a Final Report under section 173, Cr.P.C., bearing number 06/2014 dated 12.11.2014 under section 120B read with sections 420, 467, 468 & 471 of the Indian Penal Code before the Ld. Special Judge (PC Act) (CBI)- 7, New Delhi District, Patiala House Courts, New Delhi (hereinafter referred to as the "said Charge-sheet"), arraigning (i) M/s Jharkhand IspatPvt. Ltd., (ii) Shri R.S. Rungta (iii) Sri R.C. Rungt....
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....and in the 11th Meeting of this Inter- Ministerial Group held on 20.09.2012, it was recommended that the Coal Block allocated to the Appellant herein be de-allocated. That, on 14.02.2014 the Coal Block allocated to the Appellant herein (i.e., the "North Dhadu Coal Block") was de-allocated with effect from 22.11.2012. 3.5 It was alleged in the said Charge-sheet that the Appellant had misrepresented on a number of aspects before the MoC and the 27th Screening Committee so as to inflate its claim and to thereby induce the Screening Committee and the MoC to allocate a Coal-Block to them. 4. Consequent to the said Charge-sheet and the trial conducted by the Special Judge (PC Act) (CBI)-7, New Delhi District, Patiala House Courts, New Delhi, vide Final Order and Judgment dated 28.03.2016, the Appellant along with Shri R.C. Rungta and Shri R.S. Rungta were held guilty of the offences under sections 120B read with 420, IPC; and were acquitted in respect of charges under section 467, 468 and 471, IPC. 5. The above Judgment dated 28.03.2016 has been challenged by the Appellant before the Hon'ble Delhi High Court, being Criminal Appeal No. 714/2016. The said Appeal has been adm....
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....er Directors and unknown others under Sections 120-B r/w 420 of IPC, which are also among the Schedule Offences under the PML Act." (Emphasis added) 8. The said ECIR further alleges that based on the inputs received from the predicate agency, there appears a prima facie case of offence of Money Laundering as defined under s. 3 of the PMLA.After registration of the said ECIR, the Respondent No. 1 appears to have carried out investigation under the provisions of PMLA and recorded the submissions of various individuals and/or companies, which are part of Respondent No. 1's Relied Upon Documents. 9. Thereafter on, 23.09.2016, the Appellant received the Provisional Attachment Order No. 01/2016 dated 15.09.2016 (hereinafter referred to as the "said PAO") whereby the Complainant/Respondent No. 1 herein attached various immovable properties of the Appellants herein, as detailed in Annexure 'A' to the said PAO. 10. In the PAO, the Respondent has categorized the Share Application money ('SAM') received by the Appellant herein from various individuals/companies/entities as the "Proceeds of Crime" generated from the Scheduled Offence of Sections 420 and 120B, IPC. It has been alleged ....
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....he Appellant has approached this Tribunalto set-aside the Provisional Attachment and the Impugned Order. 15. As far as schedule offence is concerned, the main allegations are that the appellant has misrepresented on a number of aspects before Ministry of Coal and 27th Screening Committee as to inflate its claim. Therefore, the appellants were held guilty of the offence under Section 120B and 420 IPC. Against the conviction order, the appeal is pending for disposal. 16. We do not wish to express any opinion on finding arrived with regard to schedule offence, if committed by the appellant. The said issue is sub-judice before the High Court, the same was passed on different issuesand the same has to be decided as per its own merit.Our only concern in these appeals is as to whether attachment order passed is sustainable in law or not and/or as to whether the investment is made from the public money or not. Further, as to whether merely investment in the company is proceed of crime or not, or it amounts to money laundering. PMLA proceedings 17. ECIR bearing number 'ECIR/02/RSZO/2014' registered by the ED on 29.04.2014 on the basis of registration of FIR on 8.3.2013. It is ad....
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....ng. The Appellant was directed in the meanwhile to deposit a sum of Rs. 2 crores by way of Bank Guarantee with the ED, and subject to the same it was directed that no coercive action shall be taken pursuant to Notice dated 06.12.2017. Appellant on 21.12.2017 furnished the above BG by way of speed post since the ED refused to accept the same by hand. The appellants were directed to file an affidavit, which was filed by the appellants before this Tribunal on 9.1.2018. The ED returned the Bank Guarantee under cover of letter dated 15.01.2018, on the ground that the main appeal is coming up for hearing on 17.01.2018. By order dated 17.01.2018, this Tribunal directed as under:- • Parties to maintain status quo as on the last date of hearing i.e. 21.12.2017. • Liberty was granted to ED to move Application in case it was agreeable to receive FDR of Rs. 2 Crores, without prejudice. • Interim Order was directed to continue 25. The main case of the respondent is that the appellants have received huge money on the basis of allocation of coal linkage. Since the allocation was obtained from Government by making misrepresentation, therefore, any investme....
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..... Ltd. as a director. Ans. I was inducted director in M/s LupinCommodealPvt. Ltd. on dated 03.04.2010. iv) Who are chairperson and Managing Director of M/s LupinCommodealPvt. Ltd please give their name and address? Ans. LupinCommodeal Pvt Ltd does not have a chair person nor a Managing Director. v) You have shareholding/ directorship in other companies of RC Rungta group of associates companies of JIPL? Ans. I am shareholder and director of Sri Durga Cement Co. Ltd. in which R.C Rungta is the director. vi) Please give details of source of fund used for purchase of shares of JIPL in the Feb 2009-2010 and provide the statement of accounts from which the payment were use to JIPL for purchase of shares? Ans. The above details has already been submitted to you through letter dated 21.3.2011. vii) Please state the reason of purchase of Jipl shares on such high premium of Rs. 150/- during the period 2009-10. Ans. I think premium of Rs. 150/- is not so high as the book value of a shares of JIPL which was amount Rs. 200, what I recall. In addition to this the track record of the company was increasing year by y....
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....lders has invested in our company for better future management. xvi) As per your letter dated 21.3.2016 [illegible] 48 shares in your company as on [illegible] 2005 which is twelve more than share has been of last year i.e. 36 shareholders 2007-2008. Please give details of directorate of companies and there address? Ans. Right now I don't have the ans. I will provide details later on. xvii) As per your letter dated 21.3.2012 M/s Escort Trademark Pvt. Ltd. is one of the shareholders of your company and it has also been taken from your letters that M/s Escort Trademark Pvt. Ltd. is constantly increased of your company since 2007/08. Please give details address of the company, name of the directors and its business activities? Ans. Address of the company is Diamond Prestige Building AJC Bose Road, Kolkata. Director are myself and AshishRungta. It is also an NBFC company listed with RBI during investment business. xviii) As per the answer of question No. 2 and 17 you and your brother AshishRungta both are the directors ofLupinCommodealPvt. Ltd. and Escort Trading Pvt. Ltd. as per the list of shareholders of JIPL LupinCommodealPvt. Ltd. and E....
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....as revealed through its balance sheet till date of investment all the three parameters were positive hence, we invested in JIPL. xxiii) Please tell what is the profit for shares of JIPL during 2006/07, 2007/08, 2008/09? Ans. This being a question related to figures, I don't remember right now. This will be submitted later on. Above statement is true and correct and given voluntarily without any pressure. I shall appear again on 13th April 2016 to continue my statement. Sd/- A.K. Rungta 12.4.2016 30. Statement dated 13.04.2016 under Section 50, PMLA of AlokRungta Director of M/s LupinCommodealPvt. Ltd. Further statement of AlokRungta, son of Shri Ram Chandra Rungta, residing at new PNB Building main Road RanjeshCantt Director of M/s LupinCommodealPvt. Ltd., Kolkata, recorded under section 50 of PMLA read with Section 183 and 228 of IPC on 13th April 2016. I have gone through my earlier statements on 12.4.2016 under Section 50 of PMLA and I confirm that given statement recorded and based on the facts disclosed by me voluntarily. Q.1. In your previous statement 12.4.2016 you have asked to provide the details of al....
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....ss, name of director and address of director. Q.4. As per your letter dated 21.3.2016 there were 48 shareholder in your company as on 31.3.2009 and 23 shareholders as on 31 March 2008 i.e. 12 more shareholders. However, cross click of the list of shareholder reveals that some old shareholder has not reflected in the list of shareholder as on 31.3.2003. Due to this 4 new shareholders have appeared in the lit of shareholder as on 31.3.2005. Please give the details of director of the companies. Ans. The list of change of shareholders was [illegible] details of address, directors name and directors address is being submitted to you. However, as per my list of number is 23, where you have asked for 24. I will re-verify the same and inform you accordingly. Q.5 Did your company M/s LupinCommodeal aware that M/s JIPL had been allotted North Dhadhu Coal Block before investment in JIPl? Ans. Yes, I was aware that company JIPL was alloted a coal mine. However, the name of same was not known to me. Q.6. As per your reply to question No.5, before investment by your company M/s LupinCommodealPvt. Ltd., it was known to M/s LupinCommodeal that M/ JIPL had been allotted a coal blo....
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....tarily without any pressure. I shall appear again as on call for. Sd/- A.K. Rungta 13.4.2016 31. Statement dated 12.04.2016 under Section 50, PMLA of AlokRungta, Director of M/s ToalasariyaVinyogPvt. Ltd. I, AlokRungta, son of Shri Ram Chandra Rungta, aged about 33 years, Director of M/s ToalasariyaVinyogPvt. Ltd. Kolkata, presently Jharkhand for recording my statement in response to summon issued for appearance on 12.4.2016. I have been explained the provision related to summon and I have fully understood to same. a. What do you do and give statements of your family along with their occupation and PAN details. Ans I am businessman, look after working of the companies I what I am director. My wife ShobhaRungta and son DarshRungta 1.5 years old my wife is a house wife. PAN of my wife is AGPPA8129F. b. Who are directors in M/s ToalasariyaVinyogPvt. Ltd and give their name and address. Ans. Myself and AshishRungta directors in the company having same address. c. Where were you inducted in Board of directors of M/s ToalasariyaVinyogPvt. Ltd. as a director? Ans. I was inducted director in Toalas....
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....y is non banking Finance company (NBFC) registered with RBI. Hence the object of NBFC applies to us and we can invest in shares or loans. m. What is the source of funds for purchase the shares of JIPL? Ans. In answer to question 6 I have already written that it has been submitted by our letter dated 21.3.2011. n. Is the net worth of your Co. more than the amount invested in JIPL or whether you have taken loan to invest in JIPL? Ans. The network of our company is more than the amount invested in JIPL. We have not taken any loan to invest in JIPL. o. On what basis your shareholders have invested in your company at the time of your investment in JIPL? Ans. Our is a NBFC company registered with RBI. This being an investment company people subordinate to share capital for increase in intend value of shares. As I have already written that JIPL was a continuous growing company showing profit in all years. The book value of shares as of today is around 300 Rs. Per shares. Apart from this the value of land and building has been increased manifold. Hence keeping in view the above points our shareholders has invested in our company for bet....
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.... allotted to JIPL, but I was not knowing the name of coal block. Q.2. Had ToalasariyaVinyogPvt. Ltd. taken consideration of allotment of North Dhadhu Coal block to JIPL before investment in JIPL? Ans. We have not considered the allotment coal block before investment in JIPL. Q.3 When had TalasoriyeVinayogPvt. Ltd. applied for shares of JIPL and when where the shares of JIPL allotted to TalasoriyeVinayogPvt. Ltd? Ans. Our company had applied shares from the period May 2007- July 2008 and the shares were allotted to us in April 2009. Q.4. What were the authorized capital, reserves net worth, NAV of ToalasariyaVinyogPvt. Ltd. for the financial year 2008-09? Ans. Authorized capital was 2.90 crore, reserve 14.02 Crore Net worth 16.61 Crore and NAV Rs. 64 per shares as on 31st March 2009. Q.5. Please give details of investment made by ToalasariyaVinyogPvt. Ltd. since 2008-09. Ans. The relevant balance sheet for the period has already been given, continuing details of investment. Above statement is true and correct and given voluntarily without any pressure. Sd/- A.K. Rungta 23.5.20....
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....in terms of expenses promoters. The market value of land of the company was appreciated 3-4 times in year 2009-10. viii. Please furnish the name and address of the bankers of the company? Ans. The company is having banking with Kotak Mahindra Bank, Shyam Bank Kolkata HDFC Bank Ltd. Shree Arcade Kolkata. ix. Please give details of other investment made by you and your family members either in individual company or as director/ partner/ proprietor of such companies of movable or immovable assets on or after 1.1.2001. Sources of fund for the said investment may also be elaborated. Ans. I have no details of the investment made by myself or my wife at present. I can submit you the balance sheet and source of income done by myself and my wife as on 31.3.2015. x. Please give the copy of the above by today. Ans. OK, I will submit the same by today. xi. Why you have chosen JIPL to invest. Ans. In Jharkahnd at the time of our investment it was a growing company among private sector enterprises. So we have invested in the company as the share premium was also very low. xii. What is the activity of your company? ....
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.... of allotment all the three parameters were positive hence, we invested in JIPL. xviii. Please tell what is the profit for shares of JIPL during 2006/07, 2007/08, 2008/09? Ans. This being a question related to figures, I am remember right now. This will be submit later on. Above statement is true and correct and given voluntarily without any pressure. I shall appear again as and when called for. Sd/- A.K. Rungta 12.4.2016 34. Statement dated 23.05.2015 under Section 50, PMLA of AlokRungta, Director of M/s Nagina Exports &FinvestmentsPvt. Ltd. I, AlokRungta, S/o Shri Ram ChanderRunga aged 33 years, director of M/s Nagina Exports &FinvestmentsPvt. Ltd.Kolkata presently myself before Assistant Director Enforcement Directorate Ranchi, Jharkhand for recording my statement in response to summon issued to me for appearance on 10.5.2016, but due to some reason, I was unable to attend so I am recording my statement today on 23.5.2016. In continuation of my statement on 13.4.2016 Q.1. Did your company M/s Nagina Exports &FinvestmentsPvt. Ltd. Kolkata know that M/s JIPL had been allotted north Dhadhu coal bloc....
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....010 M/s Escorts TradelinkPvt. Ltd. d. Who are chairperson and Managing Director of M/s Escorts TradelinkPvt. Ltd? Please give their name and address. Ans. M/s Escorts TradelinkPvt. Ltd. do not have a chair person nor Managing Director. e. You have shareholding/ directorship in other companies of RC Rungta and associates companies of JIPL? Ans. I am shareholder and director of Sri Durga Cement Co. Ltd in which R.C Rungta is the director. f. Please give details of source of fund used for purchase of shares of JIPL in the Feb 2009-10 and provide the statement of accounts from which the payment was made to Jipl for purchase of shares? Ans. The details has already been submitted to you through letter dated 21.3.2011. g. Please state the reason of purchase of JIPL shares on such high price of Rs. 150/- during the period 2009-10. Ans. In my opinion premium of Rs. 150/- is not so high as the book value of a shares of JIPL which was amount 200, what I recall. In addition to this the track record of the company was increasing year by year. The further prospect was good in terms of expenses promoters. The market value of ....
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....mpanies are / were you directors please also state the name, address of directors of those companies? Ans. I am director at present are as below: 1. Sri Purge Cement Company Ltd. 2. Palace Projects Pvt. Ltd. 3. Escorts Tridulik Pvt. Ltd. 4. TolosariyaViniyug Pvt. Ltd. 5. Lupin Commanded Pvt. Ltd 6. Nagina Expert and Finvest Pvt. Ltd. 7. VikushFastern Pvt. Ltd. 8. Rimzim Merchants Pvt. Ltd 9. M/s Chamastika Cement of Ispat Pvt. Ltd. 10. Araanye Mines pvt. Ltd. Rest of details will be provide later on. q. As per your reply of question No.11, you have told that the reason for investment by M/s Escorts TradelinkPvt. Ltd. In JIPL during 2008/09 is that JIPL was growing company at that time. Please elaborately explain the money of growing company in the context of JIPL. Ans. Growing means increase in production capacity, increase in revenue as income profits in the context of a corporate entity. In the context of JIPL as revealed through its balance sheet till the date of allotment all the three parameter were positive hence, we invested in JIPL. r. Pleas....
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....tement dated 23.05.2016 under Section 50, PMLA, of AbhishekRungta, Director of M/s Mohanka Exports Pvt. Ltd. I, AbhishekRungta, son of Shri Ram Chandra Rungta, aged about 34 years, Director of M/s Mohanka Exports Pvt. Ltd. Kolkata, am presenting myself before Asst. Director, Enforcement Directorate, Ranchi, Jharkhand for recording my statement in response to summon issued for appearance on 23.5.2016. I have been explained the provision related to summon and I have fully understood to same. a. What do you do and give statements of your family along with their occupation and PAN details? Ans I do business and I am director of 8-9 companies and look after the workings of some of these companies. My family includes my wife and my daughter. My wife NehaRungta is a house wife PAN of NehaRungta is AGN PR01434. My daughter is about 3 years. b. Who are directors in M/s Mohanka Exports Pvt. Ltd. and give their name and address? Ans. Apart from myself my younger brother AshishRungta is also a director in the company having same address. c. When did you induct in Board of directors of M/s Mohanka Exports Pvt. Ltd. as a director? An....
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....ed in the company. l. What is the source of fund to purchase the shares of the company? Ans. Please refer to our letter in response to your letter No. ECIR/ 02/ RSZO/ 2WJ/ 373 dated 4.2.2016, this reply has already been given to you. m. The net worth of your Co. is more the amount invested in JIPL or whether you have taken loan to invest in JIPL? Ans. The net worth of our company is more than the amount invested in JIPL. We have not taken any loan to invest in JIPL. n. In how many companies are you a director? Ans. I am submitting the list of companies in which I am a director. 1. Sri Purge Cement Company Ltd. 2. MR Casting Pvt. Ltd. 3. MR Sponge Pvt. Ltd. 4. Alok Steel Industries pvt. Ltd. 5. VikashFestners Private Ltd. 6. Rim Zim Merchants Pvt. Ltd. 7. Bhutania Electrical Pvt. Ltd. 8. MR Intradev Private Ltd. 9. Ananaya Mines Pvt. Lt. 10. M R Realcon Pvt. Ltd 11. Rungta Enterprises Pvt. Ltd. 12. Mr. International Pvt. Ltd. o. Did your company M/s Mohanka Exports Pvt Ltd. know that M/s JIPL had been allotted Nort....
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....f north dhadhu coal block in M/s JIPL? Ans. I am not so much aware of the coal block as Shri R.C. Rungta and Sri R.C. Rungta looking after the matter of coal block. However, this coal Block was allotted to JIPL in 2006 and later on in 2012 it was cancelled. Q.7. Was there any production of coal from the mines? Ans. We have not extracted any coal from the mines. Q8. Has your company benefited from allotment of north Dhadhu coal block? Ans. We have not at all benefitted from coal mines. Actually we have incurred heavy expenditure of 3-4 crores as development of this mines and got nothing. Q.9. M/s JIPL has allotted 10 lakhs shares of Rs. 100 each as on a premium of Rs. 150/- per shares. Do you know about this allotment? Ans. Yes the above shares were issued in April 2009 to various companies apart from this I do not know any thing about this allotment. Q.10. What basis the companies paid a premium of Rs. 150 per share for investment in JIPL? Ans: M/s JIPL was running from the year 2003. Every year the Co. was making profit and growing by production, sales etc. The book value of shares was Rs. 200 at that....
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....en has relied upon documents in support of the said OC as well as in Show Cause Notice. The Adjudicating Authority cannot disbelieve the statements of the investors or to interpret them its own matter. The same is not permissible in law. Overall view of all the statements are to be read together and then one has to come to the conclusion the finding. Therefore, the Adjudicating Authority has gone beyond the material before it to arrive at the finding that the Appellant and/or the other Defendants in the said OC invited investors/public to invest in the Appellant company using the allurement of the allocation of the coal block or its possible allocation, and that therefore, derivation of benefit from such investment would constitute proceeds of crime. At the same, even otherwise, it is a matter of fact, no investment was made by public which is not denied on behalf of respondent. In commercial, business allurement cannot be treated as money laundering unless money laundering actual happens. 41. The findingin the impugned order was based on materials beyond the record of the present case because there is nothing on record to show that the investors invested in the shares of the Ap....
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....anted the same on 19.09.2006. The Letter of Assurance from Central Coalfields Limited was issued on 15.09.2008. In case the respondent is to be believed, then Appellant should have collapsed after the de-allocation. However, even after de-allocation, Appellant continued to make profits and carry out its manufacturing activities. 45. Public investment is not involved in the matter. We have been informed that no investor has protested or has filed the civil suit for recovery of investment amount after cancelling the block by the Supreme Court. Even, no contrary evidence is available on record to show that the investment money was/is the tainted money. All have invested the money as per its own for many years also.There is no complaint of any nature against the appellants for allotment in order to receive the investment amount. Therefore, there is no force in the argument on behalf of the respondent that the excess amount of coal allotment was the wrongful benefit to Appellant. Even if this case is to be believed, no attempt has been made by therespondent to value this excess amount of coal allocation. The coal allocation to Appellant has been deallocated on 14.02.14 w.e.f. 22.11.2....
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....y 02.05.2006. 48. It is submitted on behalf of appellants that prior to the amendment to S. 3 in 2013 vide Amendment Act dated 03.01.2013, the words "concealment, possession, acquisition or use" were not part of S. 3 PMLA, even as per Standing Committee Report on "Prevention of Money Laundering Amendment Bill, 2011. As such, use, possession, concealment or acquisition of alleged POC, prior to 03.01.2013 cannot be considered to determine commission of an offence u/s 3 of PMLA. Any other interpretation would be violation of Art. 20(1) of the Constitution. 49. It is stated on behalf of appellants that these proceedings are civil in nature, the provisions contained in PMLA. The same cannot be applied retrospectively in the absence of an express provision making it retrospectively applicable. Irrespective of above, since we are dealing with the appeal on merit, thus, this issue may not be necessary to deal with. 50. The Complainant has provisionally attached the assets on the basis of its allegation that these assets have been created out of 'SAM'.In this regard, Complainant has relied upon statement dated 23.01.2015 of Defendant No. 3, R.C. Rungta. It is submitted that no such....
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....the year 2003 and has paid taxes amounting to Rs. 231 crores from FY 2003-04 to FY 2016-17 (upto December 2016). 55. The transactions pertaining to receipt of 'SAM' from various other companies are duly documented, above-board and legal transactions.The proceedings related to the CBI Charge-sheet and the proceedings under the PMLA have been widely reported and publicized in the media, as such, no prudent person would be willing to deal or transact with Defendant No.1 concerning the attached assets. 56. The Adjudicating Authority again travelled beyond the materials before it to arrive at the finding that the mandatory requirement of section 5(1)(b) are satisfied in the present case. In order to justify the presumptions of the ED in this regard and the lack of reasons in writing as to the ED's belief in respect of Section 5(1)(b), PMLA, the Adjudicating Authority has raised further presumptionsagainst the Appellant without any reasonable or factual basis and without any reference to the material on record and without any reference to any act or omission of the part of the Appellant. 57. The Adjudicating Authority has furnished completely new reasons and has erroneously held....