TaxTMI 
TaxTMI 
2019 (8) TMI 1911
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....d to as "Kingfisher Towers"). 3. This Tribunal is only concerned with the validity of attachment of orders with regard to Apartment bearing no. 7A (8321 sq. ft.) of the Kingfisher Towers ("the Property") which was booked by the appellant. 4. The appellant is not arrayed in the FIR or charge sheeted. He was not involved in schedule offence. No prosecution complaint is pending against the appellant. 5. The Original Complaint No. 612/2016 was filed against Shri Vijay Mallya, M/s Kingfisher Airlines Ltd. & Ors., under Section 5(5) of the PMLA, 2002, wherein certain properties (movable & immovable properties) have been attached provisionally under Provisional Attachment Order No. 11/2016 dated 11.06.2016, under Section 8(3) of the PMLA, 2002. 6. The Enforcement Directorate, Mumbai has registered a case against Shri Vijay Mallya, M/s Kingfisher Airlines Ltd. (KAL) and others under Prevention of Money Laundering Act (PMLA), 2002, in the matter of IDBI Loan of Rs. 900 Crores. 7. The properties mentioned in the aforesaid Provisional Attachment Order have been provisionally attached under Section 5(5) of PMLA, and the same has been duly confirmed by the Adjudicating Authority in its ord....
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....4.2010 whereby inter alia the parties distributed their shares in the proportion of 55% and 45% respectively 12.2 The Agreement entered into between UBHL and Prestige whereby inter alia apartments falling into the respective shares of each party were identified and earmarked on 4.11.2010. 12.3 The Appellant paid the initial booking amount of Rs. 1,00,00,000/- on 5.1.2011 and is allotted Apartment No. 7A (8321 sq. ft.). 12.4 Letter of Allotment dated 12.4.2011 executed by the Appellant and Respondent No. 5 and 8 herein confirming the receipt of Rs. 1,00,00,000/-. Entire sale consideration remitted by the Appellant to UBHL (Bank Account Statement. 12.5 1st Consideration: Rs. 1,00,00,000/-(Cheque No. 021540) on dated 5.1.2011. 2nd Consideration: Rs. 17,38,79,000/-(Banker Cheque No./D.D. No. 793499) on dated 22.9.2011. 3rd Consideration: Rs. 1,00,00,000/-(Banker Cheque No./D.D. No. 793500) on 22.9.2011. Receipt issued by UBHL to Deccan Mining Syndicate Pvt. Ltd. Acknowledging receiving of Rs. 18,38,79,000/- on dated 30.09.2011. 12.6 Agreements executed on 21.05.2012 among the Appellant, Respondent no. 5 and Respondent No. 8 for sale of Flat No. 7A and proportionate undivided ar....
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....nt-ED, therefore, the same could never have been attached as "value thereof" of the proceeds of crime. Particularly since, UBHL has no right or interest in the subject-property at the time of issuance of the Provisional Attachment Order in the captioned matter. It is also relevant to mention that there is no finding in the PAO or the Confirmation Order that any proceeds of crime have flowed to UBHL. (c) In the proceedings referred by the ED, neither the Appellant nor the Respondent-ED is a party and as such also, the said proceedings can never have any bearing on the adjudication of the instant Appeal. However, it is clarified that the Appellant has filed the two applications before the Hon'ble Karnataka High Court being Interlocutory Application No. 7 and 8 of 2018 seeking impleadment and directions, which are still pending. The same have no bearing on these proceedings. (d) It is submitted that there is no overlap in the jurisdiction of the Hon'ble High Court or this Tribunal in deciding the respective proceedings pending before them. In the event there was any overlap, the Hon'ble High Court, which is cognizant of pendency of these proceedings, would have directe....
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....tion of the FIR pertaining to the predicate offence and the registration of the ECIR. (ii) The Appellant is not even named/ mentioned in the FIR or the ECIR or the captioned Original Complaint. (iii) It is not even the case of the Enforcement Directorate/Respondent that the Appellant is involved or connected in any manner with the alleged offence under PMLA or the predicate offence. (iv) In fact, at the time of issuance of the captioned Provisional Attachment Order, the ED/Respondent was aware of the purchase of the said Property by the Appellant; however, the ED, either consciously did not investigate the same or if it did investigate it, then the same did not result in any inculpatory findings. 18. There is no material on record to show that the Appellant has any link, association or relation with any of the Defendants in the captioned Original Complaint. 19. The entire purchase consideration was funded from the Appellant's own income/personal funds obtained from legitimate and fully documented sources, as supported by the Appellant's Bank Statement. Therefore, it cannot be said that the Appellant and the Respondents 5 and 8 acted in concert or that the purchase o....
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....llant has attempted to help the accused Vijay Mallya and has connived with him by entering into the Agreements to Sell are completely without any substance and without an iota of evidence or material on record as the Respondent ED has failed to show that the Appellant has any link, nexus or connection whatsoever with the Accused Vijay Mallya. Thus, the allegation of connivance is nothing but mere conjectures and surmises, being made by the Respondent ED only with a view to prejudice this Tribunal against the Appellant and defeat the valuable property rights of the Appellant herein. 24. The Respondent ED's submission that if the present Appeal is entertained by this Tribunal, it would result in according priority to the Appellant's claims over the claims of other secured creditors is wholly misconceived. It is reiterated by the Appellant that he is neither seeking any direction from this Tribunal that the Appellant be handed over the possession of the subject Property nor that the sale deed(s) in respect of the subject Property be executed by M/s UBHL in favour of the Appellant. The scope of the present Appeal is limited to the determination as to whether the subject Proper....
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.... is involved, in any manner, in the offence of money laundering or the predicate offence. No such contention has been raised in the Reply. c. The Appellant has purchased the property from his own independent income/personal funds, earned and accumulated from legitimate and fully documented sources, at the prevalent market-rate, consequent to above-board arms-length, duly documented negotiations. As such, it cannot be said that the Appellant acted in concert with the Defendants in the Original Complaint. d. The Appellant has executed Agreement to Sell, Construction Agreement and has also paid the full purchase consideration. Furthermore, all these documents were executed much prior to the registration of ECIR and FIR in the captioned Original Complaint. Additionally, it is submitted that the Appellant has paid sufficient Stamp Duty on the Agreement to Sell and the Construction Agreement. This too, shows that the subject-property is not involved in money-laundering. 30. It is further submitted that even at the stage of Section 8(8), PMLA, that is, confiscation, the only requirement upon a claimant to seek restoration of the subject-property is only to show that he has a "legitim....