TaxTMI 
TaxTMI 
2025 (6) TMI 1435
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.... 90,77,968/- 2. Plot measuring 1500 sq. feet Khata No. 63, at Livesal Patti, Dist. Nainatal, Bheematal Banwali Road purchased on 24.07.1997 41,120/- 3. House No-A-38, Sec-27, Noida 36,91,351/- Total 1,28,10,439/- Movable Assets on Sh. Yadav Singh Sl. No. Particulars Amount 1. Balance in SB A/c No. 2817101040291, Canara Bank, Sec-6, Noida as on 09.02.2018 29,46,571/- 2. Inventory observed at A-10, Sec-51 Noida during the house search as on 05.08.2015 including cash of Rs. 36,325/- 44,97,655/- Total 74,44,226/- Sl. No. Immovable Assets of Smt. Kusum Lata Amount 1. House No.39/53, Nandpura, Agra purchased on 10.01.88. 12,839/- 2. Plot No.4, Amit Nagar, Deoli Road, Agra (measuring 14.6 sq. yard) purchased on 28.03.92 8,760/- 3. Plot No.5, Amit Nagar, Deoli Road, Agra (measuring 163 sq. yard purchased on 16.03.92 with cost of construction on this plot as well as adjacent plot no. 4, Amit Nagar. 38,42,240/- 4. Another land at plot No. 4, Amit Nagar, Deoli Road, Agra (....
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....ctare agriculture land Khata No. 35 at Paubari, Tehsil Dhankaur, Distt. Gautam Budh Nagar gifted by Smt. Vidya Rani to Kusum lata in July 2010 vide gift deed no. 18218/2010 dt. 17.07.2010. 13,75,520/- 17. Office premise 9, Sikka Complex, Preet Vihar community center, Delhi purchased on 22.06.2011 vide deed no 9973 dt. 22.06.2011 from Sh. Rakesh Kumar Mahajan. 46,98,300/- 18. Part of office premises no. 9 and office premises 10 Sikka complex, Preet Vihar Community Center, Delhi purchased on 22.06.2011 vide Registration no. 9972 dt. 22.06.2011 from Sh. Rakesh Kumar Mahajan. 36,60,000/- Total 7,32,45,481/- Movable Assets of Smt. Kusum Lata 1. Balance in SB A/c No. 070720110014540, Oriental Bank of Commerce, Sec-27, Noida as on 15.02.2018. 40,086/- 2. Balance in SB A/c No. 2711101003566, Canara Bank, Sec-16, Noida as on 21.11.17. 9,489/- Total 49,575/- Assets of Kusum Garments Pvt. Ltd. Sl. No. Detail of Property Value as on 04.08.15 1. 1000 sq. mtr. Industrial Plot No. H-60, Sector-63 on dated 09.07.2003 4,65,91,109/- Assets of K.S. Ultratech Pvt. Ltd. Sl. No. Detail of Pr....
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....ssion of disproportionate assets to the tune of Rs. 11.90 crores approximately, the acquisition of which he cannot satisfactorily account for, nor he furnished any intimation to his department, being a public servant. After Investigation CBI filed charge sheet against them on 26.09.2017. CBI investigation revealed that during the check period from 01.04.2004 to 04.08.2015 (on the date of search), the Appellant was found in possession of disproportionate assets in his name and in the name of his family members to the known source of his income, to the extent of Rs. 23,15,41,514/-, i.e. 512.66 %. Accordingly, ED recorded ECIR for conducting investigation against the said accused persons in possession of proceeds of crime and commission of offence of money laundering u/s 3 punishable u/s 4 of PMLA, 2002. Accordingly, ED provisionally attached the properties, as mentioned in Para No. 1 above, and thereafter, filed OC No. 983/2018 before the Adjudicating Authority for confirmation of the said properties. The Adjudicating Authority being satisfied with the allegations made in the Original Complaint, coupled with the other documents and statements recorded u/s 50 of PMLA, issued ....
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.... prior to the alleged commission of the scheduled offence? iii) Whether the provisions of PC Act as predicate offence are applicable retrospectively, since the offence of disproportionate assets punishable under Section 13 (2) of PC Act,1988 was inserted in the schedule to the PMLA, 2002, w.e.f. 01.06.2009, but most of the disproportionate assets were acquired/purchased much prior to the said amendment? iv) Whether the attachment was made without the compliance/ existence of the conditions as stated under the second proviso of Section 5(1)? v) Whether requirements of Section 5(1)(a) & (b) are not fulfilled independent of and in conjunction before attaching the properties? Now, we will decide the above issues, one by one as under: Issue No. i) 6. Coming to the issue, we are of the view that the police/CBI has to conduct the investigation for the commission of the predicate/schedule offence and ED is not empowered to re-investigate the same. It has to see only the following points during its investigation for money laundering: - i) Prima facie incriminating evidence against the culprits for commission of the schedule/predicate offence; ....
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....ce under section 3 of the Act of 2002. The issue aforesaid has been decided in the case of Dyani Antony Paul vs Union of India reported in (WP No. 38642/2016) dated on 11th December, 2020. The relevant paras of the judgment quoted hereby: - "77. Article 20 of the Constitution prohibits conviction except for violation of a law in force at the time of commission of an offence. In other words, there cannot be prosecution under the PML Act for laundering of money acquired by committing the schedule offences prior to the introduction of the PML Act. Therefore, the time of commission of scheduled offences would not be relevant in the context of the prosecution under the PML Act. What would be relevant in the context of prosecution is the time of commission of the act of money laundering. The question would be, whether a person involved in money laundering as provided under Section 3 of the PML Act has indulged in the said act or not has to be decided by the competent authority. What is the date of laundering of money will have to be decided on facts of each case and there cannot be any prescribed straight jacket formula. This is an important fact which the authority wil....
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....any form -- be it one of concealment, possession, acquisition, use of proceeds of crime as much as projecting it as untainted property or claiming it to be so. Thus, involvement in anyone of such process or activity connected with the proceeds of crime would constitute offence of money-laundering. This offence otherwise has nothing to do with the criminal activity relating to a scheduled offence -- except the proceeds of crime derived or obtained as a result of that crime. 43. Needless to mention that such process or activity can be indulged in only after the property is derived or obtained as a result of criminal activity (a scheduled offence). It would be an offence of money-laundering to indulge in or to assist or being party to the process or activity connected with the proceeds of crime; and such process or activity in a given fact situation may be a continuing offence, irrespective of the date and time of commission of the scheduled offence. In other words, the criminal activity may have been committed before the same had been notified as scheduled offence for the purpose of the 2002 Act, but if a person has indulged in or continues to indulge directly or indirectly ....
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.... interpretation. However, an elaborate judgment on the issue has been given by the Delhi High Court in the case of Prakash Industries Ltd. v. Directorate of Enforcement reported in 2022 SCC OnLine Del 2087 and in this regard, Para 105 of the judgment in the case of Prakash Industries Ltd. (Supra) are quoted hereunder:- "105. It would be pertinent to recall that properties which were acquired prior to the enforcement of the Act may not be completely immune from action under the Act in light of what this Court had held in Axis Bank. As was explained by the Court in Axis Bank, the expression proceeds of crime envisages both ―tainted property as well as "untainted property" with it being permissible to proceed against the latter provided it is being attached as equal to the "value of any such property" or "property equivalent in value held within``` the country or abroad". However, both the italicised categories would be liable to be invoked in cases where the actual tainted property cannot be traced or found out. It is only where the respondents are unable to discover the tainted property that they can take the statutory recourse to move against properties which may fal....
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....n the case of Smt. Pavana Dibbur v. The Directorate of Enforcement reported in 2023 SCC OnLine SC 1586 has also been considered. It is pertinent to mention here that para 68 of Vijay Madanlal Choudhary v. Union of India (supra) has escaped the sight of Hon'ble Supreme Court of India in Smt. Pavana Dibbur v. The Directorate of Enforcement (supra) and in the subsequent judgment of Hon'ble High Court of Kerala, Ernakulam Bench, in case titled as, Davy Varghese v. Enforcement Directorate, WP-1354/2023. However, findings given by three judges Bench of the Apex Court in the Vijay Madanlal Choudhary v. Union of India (supra) has been relied to give interpretation to the definition. In the light of the above, we find no force in the argument of Ld. Counsel for the appellant, because when the proceeds out of crime was not available with the appellant rather vanished and siphoned off, (on account of high expenditure out of the ill- gotten money) the property of equivalent value can also be attached by ED. In the light of the aforesaid, second limb of the definition of "proceeds of crime" is also attracted to attach the property of equivalent value. Thus, the ground raised by the appellan....