TaxTMI 
TaxTMI 
TaxTMI 
2025 (6) TMI 1671
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....ime. (a) An FIR was registered on 07.03.2016 alleging that during the year 2011-2016, the officials of three branches of Syndicate Bank in collusion with group of customers by way of interlinked fraudulent transactions ranging from Rs. 40 lakhs to Rs. 5.00 crores resorted to discounting of forged cheques, discounting of forged inland bills and availing of overdraft facility against non-existent LIC policies caused a huge loss to the tune of Rs. 1055.79 crores by siphoning off the funds of the bank for illegal personal gains. In reference to the first FIR referred to above, the CBI filed a charge-sheet dated 14.06.2016 for the offences under Section 120-B, 409, 420, 467, 468 and 471 of the Indian Penal Code, 1860 and Section 13(2) read with Section 13(1)(c) &(d) of the Prevention of Corruption Act, 1988. (b) The Second FIR dated 23.03.2017 was registered for commission of similar offences. The allegation therein was collusion of the bank officials and builders led to diversion of the funds causing wrongful loss to the Syndicate Bank to the tune of Rs. 209.99 crore. In the investigation by the Vigilance Department, it found loan portfolio under 118 loan accounts to commit the fra....
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....e Park by the entities belonging to the main accused. Shri Anoop Bartaria and his companies returned /repaid Rs. 69.12 crores to M/s Raj Darbar Material Trading Pvt. Ltd. of key accused Shri Bharat Bomb. The office and business units were registered in the name of Shri Bharat Bomb and his entities worth of Rs. 77.2 crores. The business and office units aforesaid have been attached by the respondent finding it to be proceeds of crime in the hands of entities of Shri Bharat Bomb. The total amount comes to Rs. 146.32 crores (Rs.69.12 Crores + Rs. 77.2 Crores). The remaining amount is said to have remained in the hands of the appellant, Shri Anoop Bartaria and his companies i.e. M/s World Trade Park Ltd. and SIPL along with his associates / employee, Shri Kamal Sharma aggregating Rs. 15.08 crores. 5. According to the respondent, out of proceeds of crime of Rs. 15.08 crores, a sum of Rs. 5.11 crores was received through a draft dated 18.06.2014 from by M/s Jai Hanuman Construction, one of the fictitious entity controlled by the main accused, Shri Bharat Bomb. The aforesaid amount was credited in the escrow account maintained by World Trade Park Limited with the IDBI bank showing it to ....
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....f other entitles. Shri Bharat Bomb and his associates requested to accept the consideration through new entities to execute the registration in their names. On the said request, the money received towards the booking amount from M/s Raj Darbar Ltd. and others was refunded by the appellant. The receipt of the money from the new entities clearly shows bona fide genuine and fair business practice of the appellant. The return of the money has been acknowledged by the respondent also. 9. The allegation has been made that an amount of Rs. 4.10 crores paid by Omnia Enterprises was not the sale amount but the proceeds ignoring the mail sent by Shri Bharat Bomb communicating that the amount is deposited in the escrow account for purchasing the property till NOC is obtained from IDBI and DHFL, who financed the project. The aforesaid fact has been conveniently ignored by the respondent which include the mail sent by Shri Bharat Bomb while depositing the said amount for buying the properties. The amount received from M/s Omnia was included in the total consideration towards the purchase of property and recorded in the sale deed and the property therein has been attached by the respondents in ....
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....ment of the properties of the appellant amounts to double attachment for the same amount. 14. All the properties were registered in the names provided by Shri Bharat Bomb after accepting consideration from those entities. Correspondingly, the monies from M/s Raj Darbar were returned back. The entire amount received was towards the sale consideration and registration charges, stamp duty, JDA Lease Money and UD Taxes. The CAM and HVAC charges were for maintenance charges of common area. The amount received by Sincere Infrastructure Pvt. Ltd. (which is a separate company) was for mall maintenance as per the conditions of agreement and the sale deeds. The amount received by both World Trade Park and Sincere Infrastructure Pvt. Ltd. are as under: Particulars World Trade Park (WTP) Sincere Infrastructure Pvt. Ltd. Total amount received (A) 145.6 Cr. 5.57 Cr. Money Returned (B) 67.48 Cr. Money against sale of properties (C) 76.72 Cr. Money received for one- time payment for CAM and maintenance (D) 1.4 Cr. 5.57 Cr. Money due for CAM and maintenance payments -- 18.08 Cr. Till 2022 Net Due NIL 18.08 Cr. yet to be received from Bharat Bomb and Associates T....
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....ervice tax return. The fee for providing services as an architect cannot be treated as proceeds of crime. 19. All the bankers of WTPL have issued No Dues against the loan obtained for the project. The three bankers of WTPL were IDBI, DHFL and UCO Bank. Copy of No Dues Certificate of IDBI, UNO Bank and DHFL have been enclosed. 20. Neither WTPL nor Shri Anoop Bartaria were named in the FIR against Shri Bharat Bomb No. RCBD1/2016/E/02. They are not even named in the charge-sheet and supplementary charge-sheets. 21. Much later taking a clue from PAO against Shri Anoop Bartaria on 23.03.2017 an FIR No. RCBD1/2017/E/0001 was registered by Syndicate Bank alleging that proper charge was not created in favour of Syndicate Bank. It was in absence of the NOC from DHFL and IDBI Bank for creation of second charge for obtaining loan of Rs. 4.8 Crores and Rs. 4.95 Crores by Shri Anoop Bartaria and Shri Kamal Sharma. This allegation turn out to be false as NOCs were issued by IDBI and DHFL Bank and not only this, the EMI had been fully paid and Syndicate Bank has given No Due Certificate. Consequently, interim order in respect of the aforesaid FIR was passed by Rajasthan High Court which is sti....
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.... Pvt. Ltd. for the purchase of properties in the name of these firms/entities, therefore, money had to be returned to M/s Raj Darbar Material Trading Pvt. Ltd. after receipt of payment from these firms. 26. Statement of Pavitra Kothari S/o Daulat Raj Kothari (Brother in law of Bharat Bomb) under Section 50 of the Prevention of Money-Laundering Act ( in short "the Act of 2002") were recorded on 17.10.2016, 14.09.2017 & 20.06.2018 wherein he inter alia stated that a property at World Trade Park Office No. 506, South Block was registered in his name for Rs. 2.40 Cr. and on pursuance of his brother-in-law Bharat Bomb, he went for registry; he further states that this property does not belongs to him and actually belongs to Bharat Bomb. 27. Statement of Piyush Jain, brother of Vineet Jain & earlier employee of Bharat Bomb under Section 50 of the Act of 2002 were recorded on 06.10.2016 & 13.06.20 18 wherein he inter alia stated that on being asked by Bharat Bomb he came to Jaipur and signed registry documents of World Trade Park property i.e., Officer No. 601-B, B-614 A & B-313A; that these properties actually belongs to Bharat Bomb & documents were also with Bharat Bomb. 28. Statemen....
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....rchase, of Office No. 505. South World Trade Park, Jaipur in Rs. 1.61. Cr. from M/s Riddhi Siddhi Infraprojects Pvt. Ltd. and about the arrangement of fund thereof through his Account No. 84502010079593, Syndicate Bank, Udaipur; that he had no capacity to buy such office and however, as his both sons were working with Bharat Bomb since 2006-07 and Bharat Bomb had good status in society, he went to Registrar Office, Jaipur to sign the purchase related documents of above property. 33. Statement of Narendra Deora S/o Mahendra Deora were recorded on 20.10.2016 under Section 50 of the Act of 2002 wherein he inter alia stated that the purchase of Office No. 501, South, World Trade Park, Jaipur from M/s Riddhi Siddhi InfraprojectPvt. Ltd. in his name and details of the payment through his Account No. 8502010083672 (Syndicate Bank Udaipur) and source thereof. 34. That during the investigation, it was found that M/s World Trade Park Ltd. has received about Rs. 85 Cr. defrauded fund, starting from Oct., 2013 till unearthing of fraud, from the account of fictitious firms / companies created and operated by Bharat Bomb namely M/s B K Builders, M/s Raj Darbar Material Trading Pvt. Ltd., M/s R....
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.... properties was against his money already with WTP. Though, this argument cannot be accepted a WTP is a registered company' and separate legal entity Anoop Bartaria neither informed about the related party transaction to board nor submitted any document in this regard to ROC He did not clarify about his transaction with WTP. (d) On being asked to explain receipts of above amounts, Anoop Bartaria during his statement dated 18.10.2016 stated that against drawing fees of Bharat Bomb's project Royal Raj Vilas Udaipur, Bharat Bomb was paying his instalments. On being asked Bharat Bomb denied of ever receiving am professional services from Anoop Bartaria and he also denied that Anoop Bariaria had ever raised any such bill for such services. It is pertinent to mention here that if during financial year Anoop Bartaria had tendered professional services for Project Royal Raj Vilas then its owner company shall make the payment with respect of professional services and shall duly deduct the TDS on the payment. There is no TDS deducted by M/s Udaipur Entertainment World P. Lrd. which owns the project Royal Raj Vilas, Udaipur and the Syndicate Bank Account of Anoop Bariaria was credit....
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.... 407, 408, 409 North & in the said letters customer name was shown as M/s Rai Darbar Material Trading Pvt. Ltd. Moreover, in the said letters status of the properties was shown as unsold. It clearly confirms mala-fide intention of Anoop Bartaria. Further while issuing above NOCs it has been categorically mentioned therein that these NOCs were restricted for sale to M/s Raj Darbar Material Trading Pvt. Ltd. and that entire sale consideration shall be deposited in their escrow account. It has also been categorically mentioned in the NOCs that in the event the sale is cancelled for any reason, whatsoever at any time, this NOC shall stand revoked automatically. 37. It was submitted that Shri Bharat Bomb, towards integration and projection of Proceeds of Crime generated in Syndicate Bank fraud transferred it to the accounts of Shri Anoop Bartaria, his companies viz. M/s World Trade Park Ltd. & M/s Sincere Infrastructure Pvt. Ltd. and his associates/employee Kamal Sharma aggregating to Rs. 160.95Cr. from bank accounts of fictitious entities/ dummy persons. Out of this Proceeds of Crime, Anoop Bartaria and his companies returned/ repaid Rs. 69.12 Cr. to the M/s Rajdarbar Material Trading....
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.... Besides, it is worthwhile to note that in this account fraudulent cheque / bill discounting took place at large scale. 42. That, similarly Rs. 5.37 Cr. were received in the account of M/s. Sincere Infrastructure Pvt. Ltd. from the Account No. 84501010009023 of Syndicate Bank of M/s. RajDarbar Material Trading Pvt. Ltd. (a fictitious firm of Bharat Bomb) in 9 tranche during the year 2014-15. 43. That, similarly. M/s. Omnia Entertainment & Hospitality Pvt. Ltd. is also a fictitious firm controlled by Bharat Bomb. That a total of Rs 4.10 Cr. from the Account No. 84501010008170 of the Syndicate Bank belonging to M/s Omnia Entertainment & Hospitality Pvt. Ltd. during 2013 in 6 tranche was transferred in the account of M/s World Trade Park Ltd. hence a total of Rs. 4.10 Cr. proceed of crime placed in the account of M/s World Trade Park Ltd. 44. That, similarly, M/s B.K. Builders is also a fictitious firm controlled by Bharat Bomb. It is revealed in investigation that a total of Rs 50 Lakhs from the Account No.84501010008388 of the Syndicate Bank belonging to M/s. B.K. Builders on 21.01.2014 was transferred in the account of M/s World Trade Park Ltd. Hence a total of Rs. 50 Lakhs Proc....
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.... commission of offence, rather issued NOC on repayment of loan and even for creation of second charge. The respondent yet made elaborate arguments in regard to the affairs of IDBI, DHFL and UCO Bank which could not have been made subject matter of the investigation in absence of any allegation and even for that to justify the attachment if it has been caused in reference to the loan taken for the project of World Trade Park from IDBI, DHFL and UCO Bank and is being repaid. The jurisdiction of the respondent was to cause investigation once the FIR for the predicate offence was registered followed by recording of ECIR and not to travel beyond the allegation in reference to the parties who never made complaint i.e. IDBI, DHFL and UCO Bank,rather, para 36(f) of this order mentioning the arguments of respondent support the appellant. With the aforesaid clarification, we may analyze the issue as to whether the properties under attachment are the proceeds of crime. 48. The total proceeds in the hands of the appellants said to be of Rs. 15.08 crores, as was later on clarified by the Counsel for the respondent, though, initially arguments were made even in reference to the facts not releva....
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....ration from the other entities, the document was registered and the sale deed was executed in the name of those entities for worth of Rs. 77.2 Crores. The fact aforesaid has not been in disputed by the respondent, rather, it has been recorded by the respondent in the written submission. 51. The respondent have raised and argued against their own statement of facts given in the prosecution complaint assigning the role of the appellant, Shri Anoop Bartaria though Prosecution Complaint was submitted without analyzing facts otherwise taken by the respondent themselves. Para(f) of the complaint is quoted hereunder again for ready reference, otherwise, it is a part of para 36 of this order to make the things clear and thus reiterated hereunder: (f) That examination of letter dated 27.09.2018 & letter dated 10.11.20l6 received from IDBI Bank revealed that combined BNOC in the case of the seven properties including these three properties as stated above was issued by them in the name of M/s Raj Darbar Material Trading Pvt. Ltd. on 12.03.2014 against payment received from this firm. It is worthwhile to mention here that M/s Raj Darbar Material Trading Pvt. Ltd., M/s Raj Darbar Material T....
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....on repayment of their due amounts. The respondent has still taken a sum of Rs. 4.10 Crores and Rs. 0.50 Crores apart from an amount of Rs. 5.11 Crores towards proceeds of crime, though, the property in reference to the aforesaid amount has already been registered in the name of Shri Bharat Bomb and his entities and even been attached by the respondent finding it to be proceeds of crime. Therefore, the attachment of the properties in the hands of the appellant for a sum of Rs. 4.10 Crores Rs. 0.50 Crores and Rs. 5.11 Crores is nothing but a case of double attachment for one and same figure in the hands of the main accused Shri Bharat Bomb and his entities and thereupon in the hands of the appellants, who were not accused in reference to the main accused, Shri Bharat Bomb but were made accused in the subsequent FIR. The respondent has ignored the facts given in their own Prosecution Complaint. 52. According to the respondent, the appellant had received a total sum of Rs. 160.95 Crores and out of that, they returned a sum of Rs. 69.12 Crores. The property worth of Rs. 77.2 Crores has been attached in the hands of the main accused, Shri Bharat Bomb and his entities. If it is taken on ....
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....e escrow account and got cleared in the account of IDBI and DHFL and thereupon the commercial unit was registered in the name the said entity and is under attachment in the hands of the main accused, Shri Bharat Bomb. It is otherwise given by the respondent in para(f) of their Prosecution Complaint but going contrary, the PAO was issued. 57. The Counsel for the respondent could not clarify the ignorance of the email of the main accused, Shri Bharat Bomb towards the aforesaid amount and otherwise the said amount was included in the total consideration for purchase of property in the name of the entity belonging to Shri Bharat Bomb and the registered sale deed was also executed and therefore respondent has attached the property of the said entity of Shri Bharat Bomb. 58. The respondent have further taken the amount of Rs. 5.37 crores paid to SIPL to be the proceeds of crime. It is in ignorance of the fact that the amount aforesaid was paid towards the maintenance charges as per the agreed terms of the sale deed. In fact, the condition for payment of maintenance charges to SIPL was a standard clause in the sale deed for all the purchaser so that the common areas are maintained prope....
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....from the occupier of the said Shop/ Office. The purchaser shall bear electricity charges as per actual consumption & HVAC charges of premises on per sq. ft. basis @ Rs. 12 on SBA for internal consumption of the store in addition to CAM charges. (b) Purchaser & all persons claiming under the Purchaser or through him and in occupation of Shop or office would have to make payments of Maintenance and Management Charges as determined by W.T.P. Ltd. or its nominated body corporate in terms of this clause. Any breach or violation of this clause by the Purchaser or person claiming through him would entitle the W.T.P. Ltd. to give a notice of fifteen days to remedy and restrain the breach of violation, and if such, breach or violation is not remedied or continues than the W.T.P. can restrain the right to trade of business of the Purchaser or persons claiming through him in WTP. 60. The Counsel for the appellant has made reference to the judgment of the Apex Court in the Rasila S Mehta vs. Custodian (2011) 6 SCC 229. The relevant paras of the judgment are reproduced hereunder: "86. We have already noted that Smt Jyoti H. Mehta and six other family members of late Harshad S. Mehta were n....
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....he scheme of the repair and upkeep of the attached properties, the maintenance charges including the interest for the delayed payment is to be borne by the notified parties/entities occupying the attached property, whereas the charges incurred by the Society towards the repair of the attached properties is to be paid by the Custodian from the attached account of the notified parties. Regarding payment of maintenance and repair charges, there cannot be any doubt that the Custodian is liable to pay the same to the Society. However, the Custodian has claimed interest for arrears of maintenance charges as claimed by the Housing Society. 90. In the same way, in Civil Appeal No. 4764 of 2010, the appellant, namely, Rasila S. Mehta, a notified party who is the owner of the attached property failed to pay to Madhuli Cooperative Housing Society Ltd. her contribution towards maintenance charges, interest thereon and also the charges incurred by the Society towards repair of the attached property. The total dues demanded by Madhuli Cooperative Housing Society Ltd., vide its letter dated 21-6-2010 qua the attached property is Rs. 21,06,230 and break-up of the same is as follows: "(i) Maint....
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.... the respondent. It is apart from the total deduction at source of maintenance charges payable to SIPL to the tune of Rs. 1.15 crores. 63. The respondent have considered the proceeds of crime in the hands of the appellant, Shri Anoop Bartaria and his associate, Shri Kamal Sharma even for the sum obtained by them as a loan from the Syndicate Bank. It was an independent loan taken by them to purchase office units in World Trade Park and had no connection with the scam and accordingly it was repaid to the Syndicate Bank which has issued the NOC on its repayment. The amount of the loan in the hands of the appellant, Shri Anoop Bartaria and his associate, Shri Kamal Sharma taken from the Syndicate Bank was a sum of Rs. 4.08 Crores and Rs. 4.98 Crores repaid by the appellant and NOC thereof has been submitted and is on record. The respondent erroneously taken it to be proceeds of crime knowing it well that the loan was obtained by Shri Anoop Bartaria and his associate, Shri Kamal Sharma independently and had no connection with the scam at the instance of the main accused, Shri Bharat Bomb. They even ignored the payment of the loan in instalment and otherwise the payment of entire amount....
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....d-with the bank on the basis of his agreement to sell dated 21.07.2014. c) Guarantee Agreement dated 29.09.2014 was executed by (1) Sh. Anoop Bartaria /Respondent No. 12 and his wife (2) Ruchi Bartaria. Composite Hypothecation Agreement and Promissory Note acknowledging and promising to pay Rs. 480 Lacs along with Interest towards the loan sanctioned by the bank were also executed. d) Pursuant to that Respondent No. 12 was sanctioned a loan of Rs. 480 lakhs for purchasing the property on 29.09.2014. e) That from the loan proceeds (Loan Account No. 0730SLB142730004) Respondent No. 12 purchased the above said properties and thereafter a valid mortgage was created in favour of the bank on 20.11.2014 against the joint security of properties mentioned at serial no. (xix) and (xxi). All Original Title Deeds were deposited with the bank by Respondent No. 12 vide letter dated 20.11.2014. f) It is thus submitted that Respondent No. 12 entered into agreement to sell dated 21.07.2014 for purchasing the above said three offices, prior to the grant of loan by the Syndicate Bank, and offices have been mortgaged to the bank thereafter. Therefore the assumption that the subject property wa....