TaxTMI 
TaxTMI 
2025 (4) TMI 453
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....umber 489/2021 dated 15.09.2021 was registeredat Panbazar Police Station, Guwahati, Assam, under sections 120-B, 408, 409, 468 and 471 of IPC, 1860 against Shri Subhra Jyot Bharali, the then Managing Director, Industrial Co-operative Bank Ltd. (hereinafter referred to as ICBL), Guwahati, Assam, Shri Rajeshwar Das, the then Official of ICBL, Guwahati, Assam, Shri Ganesh Deka, the then Official of ICBL, Assam, Shri Rinku Barman, the then Director, ICBL, Guwahati, Assam, Shri Mahit Chandra Gayari, the then Chairman, ICBL, Guwahati, Assam, Shri Naren Chandra Medhi, the then Vice- Chairman, ICBL, Guwahati, Assam, Shri Mukul Talukdar, the then Director, ICBL, Guwahati, Assam, Shri Anil Chandra Kalita, the then Director, ICBL, Guwahati, Assam. 3. It was alleged that Shri Subhra Jyoti Bharali in collaboration and with active help and conspiracy with all other co-accused persons, committed huge financial misappropriation in the ICBL, Guwahati and till 04/09/2019, siphoned off at least Rs. 9,50,61,499.00 (Nine Crores Fifty Lakhs Sixty One Thousand Four Hundred Ninety nine only) in the name of travelling allowances and in the head of Salary, incentive payment to the field executives and co....
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....of offence and thus could not have been considered to be "proceeds of crime". The respondents failed to consider that what can be attached is the proceeds of crime and not any other property. It may be that a sum of Rs.12,59,10,023/- was withdrawn in cash from accounts maintained in the name of PC & FE with Maligaon branch of ICBL. It is also if the proceeds of crime involved is worked out to be Rs. 32,70,73,612/- said to have been acquired by Subhra Jyoti Bharali by way of mis-appropriation of the money of ICBL and said to have layered the proceed in the name of PCs and FEs and various other related entities of Subhra Jyoti Bharali with ICBL and SB. It is even if after several layering, it was finally integrated into financial system by way of acquisition of a immovable properties in the name of family members of Sarabhjeet Bharali i.e. Shri Gunajit Bharil, Ms. Nambitha Pathak, Babanand Bharil, Himani Roy and by infusion of capital in SKTCPL owned by subhra Jyoti and his family members. 8. The allegation may have been levelled that SKTCL, M/s Shashi Kumar Tea Company Pvt. Ltd. issued the shares in the name of Anjali Dass and Baban and Bharali on 16.02.2019 and was further trans....
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....was raised and while recording finding in reference to each issue raised by the appellant, we would refer the argument of the respondent. It is to avoid repetition of one and same facts. 14. The facts relevant to the case have been narrated in the opening paras of this order. The appellants have challenged the impugned order in reference to three legal issues and accordingly we would be dealing with those issues for which it would not be necessary to touch upon the facts of the case unless so required in reference to the legal issues raised by the appellants. The allegation against the appellant has otherwise been narrated coupled with registration of FIR and recording of the ECIR thereupon. First issue:- 15. The learned counsel for the appellants submitted that while the FIR was registered for the offence under section 120 B, 408, 409, 468, 471 IPC, the chargesheet was filed only for the offence under section 120 B and section 408 and 409 and not for section 468 and 471 IPC. Thus, now the chargesheet does not disclose any predicate offence other than 120 B IPC which cannot stand alone and thereby a challenge to the attachment and even the proceeding of under the Act of 20....
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....he properties attached by the respondents with all required detail. It is for a total value of 30.50 crores to secure the proceeds of the crime amount which is more than the aforesaid. The statement of the properties attached by the respondents is given as under:- Property details/reference no in the OC Owner and defendant no. Date of acquisition Whether attachment based on direct involvement of proceeds of crime Whether attachment is as value of the proceeds of crime Value of the property Plot of land measuring 2 Bigha, 2 Katha, 2 Lacha Covered by Dag No. 74, Patta No. 9 of Village - Dalai, Mouza- Chayani, PS- Palashbari, Boko, Kamrup Smt. Nabanita Pathak (D-1) 27.09.2018 Yes No Rs. 8,47,000/- Plot of land Smt. measuring 1 Pathak (D-1) Bigha, 2 Katha and 10 Lechas covered by Dag No. 45, Patta No. 34 of Village- Dalai, Mouza- Chayani, PS- Palashbari, Boko, Kamrup. Smt. Nabanita Pathak (D-1) 30.10.2020 Yes No Rs. 4,50,000/- Plot of land measuring 1 Bigha, 3 Katha covered by Dag No. 85, Patta No. 52 of Village- Dalai, Mouza- Chayani, PS- Palashbari, Boko, Kamrup. Smt. Nabanita Pathak (D-1) 02.07.2019 Yes No Rs. 4....
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....as, covered by Dag No. 23, Patta No. 45 of Village- Dalai, Mouza- Chayani, PS- Palashbari Boko, Kamrup Smt. Nabanita Pathak (D-1) 02.07.2019 Yes No Rs. 6,00,000/- Plot of land measuring 3 Kathas, 18 Lechas covered by Dag No. 48, Patta No. 8 of Village- Dalai, Smt. Nabanita Pathak (D-1) 08.10.2018 Yes No Rs.1,56,000/- Mouza- Chayani, PS- Palashbari Boko, Kamrup TOTAL Rs.30,50,26,937 Approx. 21. The facts available on record shows allegation against the appellants for mis-appropriation of the fund in different period where they siphoned off Rs. 9,50,61,000/- in the name of travelling allowances and in the heads of salary, incentive to the field executive and collectors. There were other withdrawals in the similar manner. The further allegation is of siphoning off the amount by main accused Subhra Jyoti Barali through Maligaon branch of the bank. The reference of aforesaid fact have been given only as illustration otherwise the allegation against the appellant have been elaborately mentioned in the impugned order. If the details of the property attache....
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.... not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence;" 13. The perusal of the definition aforesaid shows three limbs. In between every limb word "or" has been used to divide the definition into three parts. The first part refers to the property acquired or derived directly or indirectly out of the criminal activities relating to the scheduled offence. In the first part, all those properties which are acquired directly or indirectly out of criminal activities would be termed to be the proceeds of crime. The properties can be acquired directly or indirectly with the use of proceeds of crime. The use of proceeds directly or indirectly would be relevant part to fall in first part of the definition of 'proceeds of crime‟. To clarify the definition, it may be illustrated. Assuming in a case of dacoit, the accused secured the money and it has been used for the purchase of property, then such a property would fall in the definition of 'proceeds of crime‟ having been obtained out of proceeds of crime. In other case whe....
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....vailable or vanished. If the second limb of the definition is made dependent on the first limb, it would be literally re-writing the provision or making it redundant to a great extent and for this, jurisdiction does not lie with any court of law which includes even the Constitutional Court. They can declare any provision to be unconstitutional but till then there remains presumption of constitutional validity. 16. At this stage, we may refer to Para 68 of the judgment in the case of Vijay Madanlal Choudhary (supra) which is quoted hereunder. "68. It was also urged before us that the attachment of property must be equivalent in value of the proceeds of crime only if the proceeds of crime are situated outside India. This argument, in our opinion, is tenuous. For, the definition of "proceeds of crime" is wide enough to not only refer to the property derived or obtained as a result of criminal activity relating to a scheduled offence, but also of the value of any such property. If the property is taken or held outside the country, even in such a case, the property equivalent in value held within the country or abroad can be proceeded with. The definition of "property"....
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.... by law insists on equivalence in value. From this perspective, it is essential that, before the order of attachment is confirmed, there must be some assessment (even if tentative one) as to the value of wrongful gain made by the specified criminal activity unless it be not possible to do so by such stage, given the peculiar features or complexities of the case. The confiscation to be eventually ordered, however, must be restricted to the value of illicit gains from the crime. For the sake of convenience, the properties covered by the second and third categories may be referred to as "the alternative attachable property" or "deemed tainted property". 17. The judgment of the Delhi High Court makes it clear that the definition of "proceeds of crime" has three limbs and in the second limb the properties of equivalent value to the proceeds obtained out of crime can be attached which may have been acquired prior to the commission of crime but it would be when proceeds of crime has been vanished and is not available. It is sought to achieve the object of the Act of 2002. 18. In the light of judgment of the Apex Court in Vijay Madanlal Choudhary (supra), we are unable to....
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....nd property equivalent in value held within the country or abroad cannot be ascribed the same meaning and effect. The learned Judges comprising the Division Bench then proceeded to hold that even if the intent of the legislature was to include any property in the hands of a person within the ambit of the expression proceeds of crime‖, there would be no need to create three limbs of definition of proceeds of crime. xxxx 79. Regard must also be had to the fact that the legislation itself is dealing with contingencies where proceeds of crime are layered and their origins camouflaged and masked enabling the accused to project or claim it to be untainted property. The Act clearly as does Axis Bank take into consideration a situation where a person who has obtained proceeds of crime by commission of a scheduled offence has managed to ensure that a property directly or indirectly connected to criminal activity is rendered untraceable. It is to confer authority upon the Directorate to proceed further in such a situation that Section 2(1)(u) uses the expression or the value of any such property. The safeguard which stands constructed in Section 2(1)(u) in such a cont....
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....(1)(u) by this Court in the aforesaid decision. Consequently, and for all the aforesaid reasons this Court finds itself unable to agree with the principles as laid down in Seema Garg as well as the subsequent decisions rendered by the Andhra Pradesh High Court in Kumar Pappu Singh Vs. Union of India and the Patna High Court in HDFC Bank Limited Vs Government of India, Ministry of Finance. 81. The Court also takes note of the position that although SLP (Crl) No. 28906/2019 is pending before the Supreme Court against the decision rendered in Axis Bank, the judgement of this Court has not been stayed or placed in abeyance. The interim order of 30 August 2019 passed in the aforesaid Special Leave Petition only requires parties to maintain status quo. Insofar as the judgement of the Punjab and Haryana High Court in Seema Garg is concerned, although SLP (C) No.14713- 14715/2020 preferred against the same came to be dismissed, while doing so the Supreme Court recorded that the petition was being rejected in the peculiar facts and circumstances of the case. The dismissal of the aforesaid Special Leave Petition cannot in any case be interpreted or understood as being an affirmation....
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....for the property acquired prior to commission crime is to be taken on facts of that case. 23. The judgement referred to above covers the second issue raised by the appellant. If the proceeds was not available in the hands of the appellant having been vanished or siphoned off, the property of equivalent value can be attached. Third issue 24. The third issue raised by the appellant is in reference to section 5 (1) of the Act of 2002 alleging that the Adjudicating Authority failed to pass confirmation order within a period of 180 days from the date of provisional attachment of the properties. We find that the provisional attachment order was issued on18.08.2022 while the confirmation order was passed by the Adjudicating Authority on 08.02.2023, i.e. within the period of 180 days. The fact however remain that while passing the order on 08.02.2023, a clerical/typographical error remain in the order and therefore a corrigendum was issued on 21.02.2023 which is taken to be an order beyond the period of 180 days. 25. The learned counsel for the respondent referred to section 68 of the Act of 2002 to submit that any mistake/omission would not invalidate the order. Section 68 in ....
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....ete, but also a notice dated 28.03.2013 was issued thereon calling upon the petitioner to pay the tax amount as also penalty under Section 271 of the Act. Thereafter, the petitioner was given an opportunity of hearing on 12.04.2013. Subsequently, the second respondent realised the mistake in passing a final order instead of a draft assessment order which resulted in issuing a corrigendum on 15.04.2013. In the corrigendum it was only stated that the order passed on 26.03.2013 under Section 143C of the Act has to be read and treated as a draft assessment order as per Section 143C read with Section 93CA (4) read with Section 143(3) of the Act. In and by the order dated 15.04.2013, the second respondent granted thirty days time to enable the assessee to file their objections. On receipt of the corrigendum dated 15.04.2013, the petitioner company approached the first respondent, but the first respondent declined to issue any direction to the assessment officer on the ground that the first respondent has got jurisdiction only to entertain such an appeal if the order passed by the second respondent is a pre-assessment order. Therefore, it is evident that the first respondent declined to e....
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....the case of Deepak Agro Vs. State of Rajasthan & Ors. reported in (2008) 16 VST 454 (SC)was given where the assessment order was antedated, thus was found to be null and void. It was on the strength of the argument that the assessment proceeding after the expiry of the period of the limitation would be nullity in the eyes of law. The facts of those cases are different than the present one. There the corrigendum was of the nature to change the substance and the nature of the initial order which is not the case in hand. A corrigendum of the nature making antedated order to bring it to be within limitation would be a nullity and similarly if the nature of the order from final to draft assessment order would change the substance of the order thus, the corrigendum would be read on the date when it was passed. In the instant case, substance of order has not been changedthe nature of the order rather a typographical/clerical errors has been cured by issuing corrigendum and therein an effort is not to bring the order within the period prescribed under section 5(1) of the Act of 2002, rather it was passed within 180 days. The corrigendum was only to cure the typographical and clerical error....
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....8 and No. 3867 expressly purport to have been issued under section 4-B and deal with the subject of recognition certificate and levy of concessional duty or exemption from duty, as the case may be. It is then argued by the learned counsel for the petitioner that in matters of taxation, strict construction must be adopted and that if the assessee is entitled to any advantage or benefit on account of any error or mistake of the assessing authority it should not be denied to him. I do not think that the said principle has any relevance here, where an accidental printing error is sought to be corrected in a statutory notification issued by the Government. It is difficult to deny this right of correction to the Government. Such a power is ancillary and incidental to the substantive power conferred upon the Government to issue a notification by section 4-B. Such a power is necessary for an effective exercise of the substantive power. 33. A further reference of the Judgement in the case of Jubilant Organo sys Limited Vs. Assistant Commissioner of Central Excise and Ors. reported in Manu/KA/1287/2011of High Court Of Karnataka At Bangalore in Writ Petition No. 15575/2010 dated 28.06.2011....