TaxTMI 
TaxTMI 
2009 (10) TMI 64
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....^th June 1998 of the Assistant Commissioner", the fact that such money was fraudulently obtained not having been disputed by the CEGAT.? 2. In order to answer the issue, a few facts will have to be noted. The respondent is an owner of a building. One Shri Nawal Kishore Bangard through his three firms fraudulently obtained drawback amounts. Shri Bangard from the money so received parted with the substantial part of the money in favour of a relative Smt. Vinita Lakhotia. Thereafter Smt. Vinita Lakhotia from the sum of Rs.3 crores received by her had paid an amount of Rs.90.93 lacs towards making payment of earnest money to the respondent herein for the purchase of office premises at 125, Free Press House, Nariman Point, Mumbai. 3. The applicant on coming to know of the fraudulent act of Shri Nawal Kishore Bangard initiated proceedings for recovery of the drawback amount fraudulently received. The Commissioner of Customs by his order dated 11^th June 1998 was pleased to confirm the demand of drawback in terms of the order. In the order it was also noted that all proceeds and/or deposits against the properties surrendered amongst others by Smt. Vinita Lakhotia shall be appropriat....
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....appropriate proceedings. The balance amount was to be invested in fixed deposit. Further, liberty was given to the respondent to take appropriate proceedings which it may be entitled to in law for challenging the orders dated 24^th November 1997, 2^nd December 1997 and notice of attachment dated 10^th December 1998 as also the order of attachment dated 10^th December 1998 against the Assistant Commissioner of Customs (the respondent no.2 in the appeal before the Supreme Court). 7. Subsequent to that, the respondent and another were pleased to prefer an appeal to the Commissioner of Customs (Appeals). The stand of the respondent was that the order of attachment was without authority of law. They had entered into an agreement for sale of the property with one M/s Utopian Financial Solution Pvt. Ltd. The agreement was terminated by a subsequent letter of 10^th January 1998. The purchaser was informed of forfeiture of earnest money deposit. There were no customs dues outstanding against them and further the ownership of the property had not passed on to the proposed buyer against whom the customs dues may be outstanding and as such the order of attachment was without jurisdict....
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....erms of the Rules and accordingly allowed the appeal and set aside the order of the Commissioner (Appeals). 10. Reference by the Revenue is in respect of the said order. We may only reiterate as noted by the Tribunal that the agreement for sale was entered into on 17^th July 1997 and the earnest money was paid on the same date. The order of termination of the agreement and forfeiture of the earnest money deposit was communicated by letter of 10^th January 1998. The notice of attachment with a copy to the respondent is dated 10^th December 1998. It is therefore clear that the termination of agreement and forfeiture of the amount took place much earlier to the order of attachment. The respondent itself came to know of the fraud on 16^th October 1997. 11. At the hearing of this application, on behalf of the applicant his learned counsel has submitted that the application raises questions of vital importance and there are substantial questions of law. It is submitted that the learned Tribunal misdirected itself in law in holding that as the respondent had received the amount after the order of 11^th June 1998 and hence not within the scope of the order passed under Rule 4 a....
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....to the question is selfevident. Similarly, in Commissioner of Income Tax v. Indian Mica Supply Co. (P) Ltd., (1970) 77 ITR 20 (SC), the Supreme Court was once again pleased to observe that when the matter is selfevident the High Court was fully justified in declining to concede the prayer for reference. Therefore, if there is no substantial question of law and even if there be a substantial question of law if the matter is selfevident, the High Court need not ask for a reference. 14. Having so said, we may now consider whether the matter is selfevident. As earlier set out, there is no dispute that the respondent is not defaulters. The entire contention has been that the respondent has received monies from a defaulter and in these circumstances, the applicant was entitled to attach the property of the respondent. There is also no dispute as according to the applicant itself, the respondent is the owner of the property. Could therefore the amounts, which had passed into the hands of the respondent out of the purported money fraudulently received by way of drawback, be attached. It is also not disputed that the respondent had terminated the agreement and forfeited the e....
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....ment of any movable or immovable property belonging to or under the control of such person. Section 142, as noted earlier, starts with the word "any sum payable by any person". Therefore, it could be contended that the expression "any person" considering the expression "under the control" in section 142(1)(c)(ii) is wide enough and it would also be a person like the respondent who has received the monies from the defaulter. Therefore, the expression "person" can include a person other than the defaulter and may include a person like the respondent who had received moneys for purchase of a flat purportedly out of the drawable amount. 17. The first question to be answered would be what is the movable or immovable property belonging to or under the control of such person. What the respondent had received was earnest money deposit towards an agreement for sale of their property (flat). Money had been paid. The question would be whether, in these circumstances, that money could be attached and/or directed to be returned. For that purpose, we may gainfully consider the judgment of the Supreme Court in State Bank of India v. Rajendra Kumar Singh, AIR 1969 SC 401. In that case, the 3^rd....