TaxTMI 
TaxTMI 
2026 (5) TMI 645
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....at large to invest in the residential projects. M/s Unitech collected thousands of crores from the investors with a promise to allot them the houses/flats but failed to do so, rather diverted the funds collected from the buyers and thus cheated public at large. The FIRs were registered from time to time starting from the year 2015 till 2018 by those who suffered in the hands of M/s Unitech Ltd. 3. It was found that many investors had taken home loans to fulfil their dreams of houses/flats but even after the substantial payments to M/s Unitech Ltd., they could not get allotment of the houses/flats. It is despite the payments by the home buyers as per the demands made by M/s Unitech Ltd. The home buyers have suffered not only on account of non-allotment of houses/flats but in terms of the interest paid to the financial institutions from whom they obtained the loan. In many cases, the payment was made even to the extent of 90% of the amount on which allotment of the flats/houses was to be made. The charge sheet in pursuance to the FIRs was filed after investigation. 4. The respondent ED recorded ECIR on 06.06.2018 based on the FIRs registered by EOW, Delhi Police, Mandir Marg, N....
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....intained at house building project level. The corporate account of M/s Unitech Ltd. had mixed funds. The funds received from home buyers were used towards non-mandated activities. It was found that so far as the holding company of the appellant i.e., Carnoustie Management Pvt. Ltd. ('CMPL') is concerned, they received an amount of Rs. 310.05 Crores towards sale of shares at a premium of Rs. 1490 per share. It was at the time when CMPL was not having substantial profit, rather after earning profit in one year, if subsequently incurred losses thus there was no reason for M/s Unitech Ltd. to purchase the shares at the premium of Rs. 1490 and that too when the balance sheet as on 31.03.2007 was showing net worth in negative but despite that it issued Class B non-voting shares to M/s Unitech Ltd. to get approximately Rs. 308 Crores at the initial stage. 9. The allotment of shares was made even to the Directors of CMPL at the same time but no premium was charged. It was also found that there is total inter-mixing of two set of companies, one led by M/s Unitech Ltd. and other CMPL and its subsidiaries that includes the appellant company because Ajay Chandra, erstwhile Managing Director....
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....ent Authority on behalf of the appellant company between the years 2007-13 as an advance for Plot No.1, Sector 90, Noida (UP). M/s CMPL later on entered into an Agreement to Sell the shares of the appellant company to Shri Sanjay Rastogi and his family with the active participation of Shri Rajesh Malik of M/s CMPL. The share transferred was for a consideration of Rs. 6.60 Lakhs along with all liabilities of the company which included the following as borne out from the impugned order: "i. Total Unsecured loan outstanding as of date INR 49.03 crores (unsecured loan of INR 34.04 Crore by Carnoustie to the Appellant company) ii. Total outstanding payable to Noida Authority INR 48,62,42,792/- (as represented by Mr.Rajesh Malik and Mr.Randeep Waraich) iii. Total advance received from customers of the Appellant company for booking of ATM, Office Space, Shops and Villa INR 20,60,37,964 /- which was taken by Mr. Rajesh Malik and Mr. Randeep Waraich in Carnoustie prior to the acquisition. iv. Total amount outstanding w.r.t. creditors INR 65,13,546/-." On account of the aforesaid, total payable amount by the appellant company to M/s CMPL became Rs. 48,6....
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....roceeds of crime with the appellant. In fact, the appeal was mainly pressed on the factual grounds. 16. The appellant has submitted statement of accounts to show improper determination of the proceeds of crime in the hands of the appellant. The statement starts with the value of the properties under provisional attachment. It is of a sum of Rs. 12,26,64,381/-. According to the appellant, the determination of the amount has not been caused after making deductions and accordingly first limb was referred to Rs. 9,58,08,578/- received by the appellant company from M/s CMPL as on 08.09.2012. It was submitted that the amount aforesaid was funded out of the amount received by M/s CMPL from Dhanasamridhi Finance Pvt. Ltd. on 07.09.2012 and accordingly it could not have been taken to be the proceeds of crime. It is with further statement that while computing the alleged amount of proceeds of crime in the hands of the appellant, the respondents added a sum of Rs. 29,70,000/-paid to one Mahinder Kumar Sen which also deserves to be excluded from the alleged amount of provisional attachment of Rs. 12,26,64,381/-. 17. The counsel for the appellant further submitted that Noida Development A....
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....is based on vague statement of facts given in the Provisional Attachment Order and, in fact, the respondents have failed to record any reasons and evidence to support the finding with respect to the appellant company. It was further submitted that the impugned order has been passed without dealing with the submissions of the respondents, rather with reproduction of the pleadings and, therefore, the order is to be construed a non-speaking having been passed in a mechanical manner thus is not sustainable in the eyes of law. 22. The counsel for the appellant lastly referred to the litigation and the FIR lodged by the company against Rajesh Malik and Randeep Waraich and otherwise in reference of the letter sent by Noida Development Authority coupled with the fact that due to non-commencement of the construction till 13.08.2015 by Rajesh Malik and Randeep Waraich, an additional amount of a sum of Rs. 37,63,427/- had to be incurred between the years 2013 to 2015 and Rs. 26,02,191/-from April, 2015 till August, 2015. It is apart from the delayed penalty of Rs. 1,95,24,574/- computed on the advance amount received from the customer as on 13.08.2015. In fact, liability of Rs. 1,95,24,574....
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....he proceeds of crime from M/s Unitech Ltd., the amount aforesaid was taken to be nothing but parking the proceeds of crime though directly to Noida Development Authority. It was with further clarification about the total advances received from customers for booking of ATM, office, space, shops, etc. by the appellant to the extent of Rs. 20,60,37,964/-. However, total amount of Rs. 34,31,87,964/- was found payable to M/s CMPL at the end of July, 2016. In the meanwhile, an element of suppression of due amount of Noida Development Authority triggered which was for a sum of Rs. 22,11,98,013/-. 28. The appellant company filed a Criminal Complaint against Rajesh Malik and Randeep Waraich in the District Court, Gautam Buddha Nagar, for suppression of facts and fraud for which criminal investigation was initiated. The police submitted a report for a fraud of Rs. 21,07,85,984/- by Rajesh Malik instead of Rs. 22,11,90,013/-. We need to consider the issues raised by the appellant alleging default in the calculation of proceeds of crime. It is said to be without deductions of the amount while making calculation of Rs. 13,26,64,381/- in the hands of the appellant. 29. Before we deal with ....
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.... for suppression of facts and fraud, vide case No. 3138/2018 under section 120B, 406,415,420,467,468 & 471 (District Court Gautam Buddha Nagar, U.P.). Consequently, a criminal investigation was initiated. Incharge of police station sector 20 Noida on 09.10.2018 submitted a report in the concerned court concluding that there was a fraud of Rs. 21,07,85,984/- by Rajesh Malik w.r.t. Noida Development Authority demand pertaining to Plot No. 01, Sector-90, Noida. The case is pending in the court for outcome. f) Thus, an amount of 13,26,64,381/- { Rs. 34,61,57,965 - (Rs. 21,07,85,984 + Rs. 27,07,600); is still recoverable by CMPL from CBS International Projects Private Limited as on 09.10.2018. g) Shri Sanjay Rastogi paid an amount of Rs. 50 Lacs to CMPL on 05.09.2012 to purchase one plot bearing number D-7 of 450 sq. mts. (one of the 29 plots allotted to CMPL by Unitech). The agreement between the two w.r.t. this plot was concluded on 24.08.2012. The said plot was never transferred to Sanjay Rastogi and therefore he got registered an FIR against Rajesh Malik, Randeep Waraich and CMPL (FIR. 1201/22:07.2018 of Police Station Sector-20, Noida). The said plot stand attache....
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.... Pvt. Ltd. with M/s CMPL amounting to Rs. 10 crores was on 01.02.2016 and not on 07.09.2012. The amount of Rs. 34.61 Crores was otherwise transferred to Noida Development Authority in the years 2007 to 2013 thus could not have been out of Rs. 10 Crores received from Dhanasamridhi Finance Pvt. Ltd. in the year 2016. We rather find different transactions in the ledger, out of which one is through Cheque via SBI Account, Delhi and the other one is Adv Sale of Share at 19A and therefore receipt of fund from Dhanasamridhi Finance Pvt. Ltd. An attempt has been made to mislead this Tribunal that the amount of Rs. 10 crores was received from Dhanasamridhi Finance Pvt. Ltd. on 07.09.2012 and out of it, a sum of Rs. 9,58,05,578/- was transferred on 08.09.2012 could not be proved. The amount of Rs. 9,58,08,578/- was towards the stamp duty and not for the advance with a clear statement that the amount of Rs. 34.61 Crores was directly paid to Noida Development Authority. The amount of Rs. 34.61 Crores was not received in the accounts of the appellant company but on their behalf directly paid to Noida Development Authority. In view of the above, the effort of the appellant company seems to be no....
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.... make out a case for deduction without realizing as to whether the amount was taken while making calculation of proceeds of crime. 33. We may now come to the issue in reference to the letter dated 12.07.2018 written by the Noida Development Authority disclosing suppression of a sum of Rs. 22,11,98,013/- because amount due to them was greater than reflected in the share purchase agreement. The issue aforesaid was not relevant to determine the proceeds of crime, rather to expose the deeds of M/s CMPL and for which appellant lodged an FIR and otherwise the portion of the Provisional Attachment Order makes reference of an FIR lodged by the appellant company and pursuant to which a report to the concerned court showing fraud of Rs. 21,07,85,984/- and not of Rs. 22,11,98,013/- and the determination of the proceeds of crime has been made after deduction of the amount of suppression which was calculated as per the report of the police for a sum of Rs. 21,07,85,984/-. It is with further deduction of a sum of Rs. 27,07,600/- and accordingly after deducting the amounts aforesaid, the remaining amount came to Rs. 13,26,64,381/-. The amount was further reduced from an amount paid by Sanjay R....