TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1208
X X X X Extracts X X X X
X X X X Extracts X X X X
....ANA mutation Plot No. 1867, Kisam- Gharabari-I, measuring Area Ac-0.525 Dec. of land out of which area sold Ac- 0.193 Dec. corresponds to Sabik Mouza- Makhanpur, Sabik Thana No. 206, Sabik Khata No. 225, Part of Sabik Plot No. 1326 10391604849, Dated - 03.10.2016 44,79,525/- 2. Plot No. 1052/1288/1790/ 2108 & Plot No. 1288(P) in Unit No. 37, Area- A.O.066 Dec. in Mouza Gada Gopinath Prasad, Bhubaneshwar 53336 dated 02.08.1996 29,500/- Total 45,09,025/- (ii) MOVABLE ASSETS (Bank Balance) Sr. No. Bank & Branch Name Account Number Account Holder Name Present available Balance (in Rs.) 1. State Bank of India, Spl. PBB Mangalabag Branch, Cuttack 30297300716 Basanta Kumar Behera 5,45,587.44 2. State Bank of India, Spl. PBB Mangalabag Branch, Cuttack 35033115936 Basanta Kumar Behera (HUF) 1,47,662.05 3. Bank of India, Ranihat Branch, Cuttack 510610100006056 Basanta Kumar Behera 16,657.67 4. United Bank of India (merged with Punjab National Bank), Ranihat Branch, Cuttack 0486010125123 Basanta Kumar Behera 5,147.50 TOTAL 7,15,054.66 2. As per the facts of the case, FIR No. 32 dated 06.07.2018 of Cuttack Vigilance P.S. was registered agai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....enditure Rs. 82,25,893.00 D.A. (Asset + Expenditure - Income) Rs. 2,97,06,108.00 Percentage of DA 202.97% On the basis of the aforesaid FIR u/s 13(2) r.w.s. 13(1)(e) of the PC Act, 1988, ECIR No. ECIR/BBSZO/24/2020 dated 14.04.2020 was recorded by Enforcement Directorate, for initiating investigation under PMLA, 2002. Vide Letter No. 2608/V.Cr.(S) dated 17.06.2020, the Deputy Secretary to Govt., Govt. of Odisha, General Administration (Vigilance) Department, Cuttack, furnished the copy of FIR No. 32 dated 06.07.2018 and intimated that the case is under investigation and Chargesheet in this case is yet to the submitted. The details of immovable properties of the suspects were received from the Board of Revenue, Cuttack, Odisha vide letter No. IX- 01/2020/3401/Regn. Dated 30.01.2020. The Chief Manager, SBI, Special Personal Banking Branch, Mangalabag Branch vide letter dated 14.09.2020, the Manager, Punjab National Bank, Ranihat Branch vide letter dated 13.10.20210 and the Chief Manager, Bank of India, Ranihat Branch vide letter reference No. BOI/RHT/ 2021-21 dated 27.01.2021, have provided the bank account statements of bank accounts maintained in the name of Shri Basanta Ku....
X X X X Extracts X X X X
X X X X Extracts X X X X
....me Tax Returns. He has acquired to immovable properties - (i) One plot vide Plot No. 1052/1288/1790/2108 & Plot No. 1288(P) in Unit No. 37, Area -A.0.066 Dec. in Mouza Gada Gopinath Prasad, Bhubaneshwar for Rs. 29,500/- by paying cash out of his income earned by providing coaching and by way of getting small contract work like pipe binding etc. and (ii) One plot vide Khata No. 603/324, Plot No. 1867, Ac.0.1935 Dec. in unit-18, Buxi Bazar, Cuttack vide document No. 10391604849 dated 03.10.2016 of DSR, Cuttack for Rs. 44,79,525/-, though the Bench Mark Value of such property at that time was Rs. 1,16,10,000/-, by paying in three cheques all debited from his SBI account No. 30297300716. He made this payment out of GPF withdrawal of Rs. 10 Lakh, FD encashment of Rs. 36 lakhs and hand loan of Rs. 10 Lakh from his younger brother Birendra Behera, which were credited to his SBI account No. 30297300716. Two adjacent plots at Ranihat, Cuttack comprising (i) Mouza - Ranihat (Unit - 21), Tahasil - Cuttack Sadar, P.S.- Malngalabag, Dist.- Cuttack, Khaitan No. 37, (new Khata No. 51/24) Plot No. 39, Area - Ac.0.197 Dec., Disam - Gharabari - 1, Status - Stitiban, and (ii) Mouza - Ranihat (Unit-....
X X X X Extracts X X X X
X X X X Extracts X X X X
....R, Cuttack for Rs. 20,79,525/-, out of her salary income. She also acquired three number of cars of different models by availing three different loans from SBI, out of which two loans were closed and she is repaying the loan EMI out of her salary income and private practice income and private practice income. On the basis of material on record, the ED attached the properties of the Appellant to the extent of Rs. 52,24,079/- (immovable 45,09,025/-+ movable 7,15,054/-) against the disproportionate assets of Rs. 2,97,06,108/-. Thereafter, an Original Complaint No. 1460/2021 dated 21.04.2021 under section 5(5) of PMLA, 2002 was filed before the Ld. Adjudicating Authority, for confirmation of Provisional Attachment Order (PAO) No. 05/2021 dated 31.03.2021. The Adjudicating Authority being satisfied with the allegations made in the OC coupled with the statements recorded under Section 50 of PMLA and the relied upon documents, formed the reasonable belief and thereby issued the Show Cause Notice to the defendant (herein appellant). After receiving the reply and hearing the rival submissions, the Adjudicating Authority confirmed the PAO vide its order dated 09.11.2021. Being aggri....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to the proceeds of crime. He further argued that even if a particular asset is purchased from legitimate source of income, it has no relevance, if all other types of the expenditure is from illicit/bribe money. The Investigation Agency has to only check the quantum of disproportionate assets, on the basis of the calculation as mentioned above in this para. He contended that Ld. Counsel for the Appellant failed to point out any miscalculation while arriving at the quantum of disproportionate assets in the possessions of Appellant and his family members. Prayer is accordingly made to dismiss the present appeal being devoid of any merits. 5. On the basis of the rival submissions, the following issues emerge for decision: i) Whether the attachment needs to be set-aside, as Respondent ED has not conducted any independent investigation, qua the predicate offence? ii) Whether the attachment was made without the compliance/existence of the conditions as stated under the second proviso of Section 5(1)? iii) Whether the attachment of the properties as mentioned in Para No. 1 above needs to be set aside, even if the public servant is in possession of disproportionate assets, just beca....
X X X X Extracts X X X X
X X X X Extracts X X X X
....son to believe (the reason for such belief to be recorded in writing), on the basis of material in his possession, that- (a) any person is in possession of any proceeds of crime; and (b) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter, he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and eighty days from the date of the order, in such manner as may be prescribed: Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in that Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or a similar report or complaint has been made or filed under the corresponding law of any other country: Provided further that, notwithstanding anything contained in 1 [first proviso], any....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f some assets are acquired from the legal sources of income, even then the said assets can be attached as value thereof, if it is practically not possible to attach the other assets of the appellant. For example, if a public servant starts saving his monthly salary in his bank account without making any withdrawal, and thereafter, incurs his household expenses, extravagant expenses like liquor, gambling, parties, clubs and immoral purposes etc., from the illegal gratification/bribe, and thereafter, purchases/hold the properties from the legal source of income accumulated in his bank account, he cannot take the plea that the said properties are acquired from the legal source of income and cannot be attached. In this regard, we fortify our view in the light the judgment of Hon'ble Supreme Court of India in the case of Vijay Madanlal Chaudhary Vs. Union of India, 2022 SCC OnLine SC 929 wherein, it is held that- "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....