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TaxTMI 
TaxTMI 
TaxTMI 
2026 (1) TMI 736
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....rovisional Attachment Order (PAO) while answering the reference. Brief facts of the case: 2. It is a case where a Company in the name of M/s Oppo Mobiles India Private Limited (in short "OMIPL") was registered under the Companies Act, 2013 on 23.11.2013 with 99.97% equity share capital by Glory Concept International Limited of Hong Kong and 0.03 share capital by Shri Sanjay Goyal. During the relevant period, OMIPL was engaged in manufacturing and distribution of Mobile Phones under the brand name of 'OPPO', 'Realme' and 'One-Plus'. It was having manufacturing facilities in Greater Noida, Uttar Pradesh to support its migration from importing to full-fledged manufacturing in India. For expansion of manufacturing in India, it participated in Electronics Manufacturing Clusters (EMC) scheme issued by the Ministry of Electronics and Information Technology (in short "Meity") to provide world- class infrastructure for attracting investments in Electronics System Designed Manufacturing (ESDM) sector under EMC scheme. 3. The EMC scheme mandated induction of seven constituents and therefore to execute the scheme, it should consist of seven constituents to develop the area / park to m....
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....n-executive director of OMIPL since 03.01.2018. 6. A case of benami transaction was taken up by the Initiating Officer while the appellant executed the EMC scheme. 7. Ld. Counsel for the appellants after making reference of the scheme submitted that in the preliminary application under EMC scheme, the name of Taiwan Electrical and Electronics Manufactures' Association (TEEMA)' was contemplated for proposed Special Purpose Vehicle (SPV). It was with the association of OMIPL, GETAC Technology Corporation and MITAC International Corporation as its constituent members. The preliminary application in the scheme was made for allotment of plot No. 1 measuring 4,04,700 sq. mtr. in Ecotech-VI, Block-C, Industrial Area of Greater Noida Industrial Development Authority for a period of 90 years. The plot was allotted in pursuance to the application. However, it was transferred in the name of Tegna Electronics Private Limited (in short "TEGNA") vide letter dated 19.05.2017 issued by the Greater Noida Industrial Development Authority. It became SPV and in compliance of the terms and conditions set out under the EMC Scheme and notifications/ guidelines, completed all the formalities. The SP....
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....aised an issue about excess shareholding of OMIPL going against the EMC scheme without realizing that under the Prohibition of Benami Property Transactions Act, 1988 (in short "the Act of 1988"), the issue regarding violation of the scheme of the Government of India could not have been examined. The impugned order has been passed largely referring to the violation of the EMC scheme and allegation regarding benami transaction without satisfaction of three ingredients of the Section 2(9)(A) of the Act of 1988. The respondent even ignored that the sum of Rs. 12 crores was advanced as loan by OMIPL through banking channel and after deducting applicable taxes, it was repaid to the extent of 80% after involvement of Mr. Mohinder Singh Malik but has not been taken to be genuine fund of Shri Mr. Mohinder Singh Malik rather it was after circumventing the fund. 9. The respondent conducted a search operation on 24.12.2021 and 25.12.2021 at the residence of Shri Sanjay Goel where his statement was recorded on oath. He stated that the appellant, HEPL is holding 5% equity shares in TEGNA and M/s. Pace Tel System Pvt. Ltd. is holding 25% equity shares. It was alleged that their companies were ....
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....s and mainly guided by the EMC scheme alleged to have been violated by the OMIPL and Group companies. 12. Based on the facts given above, a case of benami transaction was drawn ignoring that no objection was ever raised by the Greater Noida Industrial Development Authority about the transaction and sub-lease of the land allotted to HEPL for development of electronic park. The respondents have shown concerns about the violation of the scheme instead of consideration the case as to whether a case benami transactions is involved in this case or not. 15. The counsel for the appellant further submitted that the loan taken by HEPL was a routine business affair and could not have been taken to be a case of Benami transaction. In the corporate sector and otherwise in business, loans are taken by the companies and are repaid. In the instant case, OMIPL has extended a loan of 12 crore for HEPL and the amount was repaid thereupon. However, it has taken to be a case of Benami Transaction. It is only for the reason that repayment was made by Mahinder Singh Gill after encashment of the FDs' of Rs. 1.9 crores each and remaining amount taken from an individual and company. The extension of l....
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....ere one entity was not authorized to possess more than 25% shares in SPV, rather, the shareholding could have only to the extent of 25% but in the instant case, OMIPL was controlling 30% of the shares of TEGNA. 18. Ld. Counsel for the respondent further made a reference to the bank statement of HEPL for receipt of Rs.12 crores from OMIPL on 27.06.2018 and out of Rs.12 Crores Rs.10,80,99,384/- was transferred by HEPL to TEGNA. Out of those funds, land was acquired by way of benami transaction. It is in the light of the facts that OMIPL was having control over HEPL. The OMIPL was managing their day-to-day affairs. The consideration to acquire the property under provisional attachment in the name of HEPL from TEGNA was provided by OMIPL. 19. Ld. Counsel for the respondent further stated that the loan amount said to have been repaid but from the perusal of record, it reveals that HEPL transferred total Rs.8.5 Crores in two instalments. Rs.5 Crores was transferred on 18.06.2020 and Rs.3.5 Crores was transferred on 31.08.2021. Prior to the transfer of the amounts aforesaid Rs. 4 Crores + Rs. 3.5 Crores were transferred in the bank account of HEPL by Shri Mohinder Singh Malik on 15.....
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....f underlying land asset of 5 acres amounting to Rs.8.94 Crores was out of the loan amount availed from OMIPL on which even the interest was paid by the said company. 22. During the course of the investigation, the statements of Mr. Mohinder Singh Malik were recorded where he stated that OMIPL created HEPL to retain effective control over the parcel of underlying lease hold which was taken to be an effort of OMIPL to enter into a benami transaction. It was analyzed that consideration of Rs.12 Crores for acquisition of 5 acres leasehold property was provided by OMIPL with the ownership registered in the name of HEPL. The total land parcels for establishing EMC were 100 acres out of which 5 acres was allotted to HEPL and for registration of parcel of 5 acres of land, consideration was paid by OMIPL. 23. Ld. Counsel for the appellant submitted that the allegation regarding effective control of OMIPL on SPV by holding more than 25% was in violation of EMC guidelines could not have been taken as a subject matter before the Adjudicating Authority when no action was taken by the Greater Noida Development Authority, rather, HEPL remained successful in establishing a unit and was even ....
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....ituents were got involved with distribution of shares holding in SPV. The HEPL was one of its constituents in the cluster and if we now go back to the issue of advancement of land of Rs.12 Crores to be genuine or not, the fact remains that Mr. Mohinder Singh Malik was introduced by OMIPL to have its control of HEPL. Mr. Mohinder Singh Malik was the Director of the OMIPL and was deeply involved in the affairs of the OMIPL and also found authorized signatory of OMIPL. Thus, plea taken by the appellant that he was non-executive Director was not accepted. 25. The respondent therefore examined the bank statement of HEPL and found that out of Rs.12 Crores Rs.10,80,99,384 was transferred by HEPL to TEGNA to acquire the property under provisional attachment. The non-executive Director, Mr. Mohinder Singh Malik was introduced along with his wife to hold share of HEPL in place of two other employees of OMIPL. He said to have repaid the loan amount to the extent of 80%. In this regard, it is noticed that M/s HEPL has transferred total 8.5 crores. of amount vide two transactions (Rs. 5 crore on 18.06.2020 & Rs. 3.5 crore on 31.08.2021). Prior to these transactions dated 18.06.2020 & 31.08.2....