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TMI Blog2019 (1) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... 3037/MUM/2016 (Misc.) MP-PMLA-2053/MUM/2015 (Stay) FPA-PMLA-1004/MUM/2015, MP-PMLA-3038/MUM/2016 (Misc.) MP-PMLA-2054/MUM/2015 (Stay) FPA-PMLA-1005/MUM/2015, MP-PMLA-3039/MUM/2016 (Misc.) MP-PMLA-2055/MUM/2015 (Stay) FPA-PMLA-1006/MUM/2015, MP-PMLA-3040/MUM/2016 (Misc.) MP-PMLA-2056/MUM/2015 (Stay) FPA-PMLA-1007/MUM/2015, MP-PMLA-3041/MUM/2016 (Misc.) MP-PMLA-2057/MUM/2015 (Stay) FPA-PMLA-1008/MUM/2015, MP-PMLA-3042/MUM/2016 (Misc.) MP-PMLA-2058/MUM/2015 (Stay) FPA-PMLA-1009/MUM/2015, MP-PMLA-3043/MUM/2016 (Misc.) MP-PMLA-2059/MUM/2015 (Stay) FPA-PMLA-1010/MUM/2015, MP-PMLA-3044/MUM/2016 (Misc.) MP-PMLA-2060/MUM/2015 (Stay) FPA-PMLA-1011/MUM/2015, MP-PMLA-3045/MUM/2016 (Misc.) MP-PMLA-2061/MUM/2015 (Stay) FPA-PMLA-1012/MUM/2015, MP-PMLA-3033/MUM/2016 (Misc.) MP-PMLA-2049/MUM/2015 (Stay) FPA-PMLA-1000/MUM/2015, MP-PMLA-3048/MUM/2016 (Misc) MP-PMLA-2203/MUM/2015 (Stay) FPA-PMLA-1112/MUM/2015, MP-PMLA-3049/MUM/2016 (Misc) MP-PMLA-2204/MUM/2015 (Stay) FPA-PMLA-1113/MUM/2015, MP-PMLA-3050/MUM/2016 (Misc.) MP-PMLA-2205/MUM/2015 (Stay) FPA-PMLA-1114/MUM/2015, MP-PMLA-3051/MUM/2016 Misc MP-PMLA-2206/MUM/2015 Stay, FPA-PMLA-1115/MUM/2015, MP-PMLA-3052/MUM/2016 (Misc) MP-PMLA-2207/MUM/2015 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheques were deposited on various dates in the account of M/s PRS Enterprises (sole proprietary concern of Nilesh J. Thakur) held with Greater Bombay Coop. Bank, Andheri, Mumbai A/c No. 1537. Statement of Account are filed in appeal no.FPA-PMLA NO. 941 of 2015. e) Similarly, between 04.11.2008 and 18.08.2009, Nilesh J. Thakur received from SPCL, a further sum of Rs. 57 Crore as an advance for the purchase of lands as specified in the contract between the parties. f) These cheques were deposited in the account of M/s Ace Card Infrasol Pvt. Ltd (AIPL), which is a private limited company under the ownership and control of Nilesh J. Thakur. These accounts were held with Greater Bombay Coop. Bank and Union Bank. Statement of Account are filed in Appeal No. 941 of 2015. In this manner, and for the abovementioned purpose, Nilesh J. Thakur and/or his firms received a total sum of about Rs. 141.5 Crores from SPCL. g) During the year 2008-2020, in furtherance of the contract with SPCL, Nilesh J. Thakur purchased various movable and immovable properties with the funds received from SPCL. Since all the funds could not be directly invested in land as required by the contract, investments wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed the decree the Suit No. 2576 of 2011in terms of the above vide its consent decree dated 19.10.2011 and, inter alia, directed the Defendant No. 3 therein (Nilesh J. Thakur) to refund the monies to SPCL and hand over any properties purchased with the fund of Rs. 141.5 crores received from SPCL. m) FIR dated 14.3.2012 was registered, by the Anti-Corruption Bureau ["ACB"] under Sections 1 (1)(e) & 13 (2) of the Prevention of Corruption Act read with Section 109 of the IPC, inter-alia, against Nitish J. Thakur, the brother of Nilesh J. Thakur, alleging that Nitish J. Thakur had amassed disproportionate assets to the tune of Rs. 118.39 Crores during his tenure as an officer of the Government of Maharashtra. n) Provisional Attachment Order (PAO) No. 3/2012 passed in Original Complaint (OC) No. 140/2012 on 17.04.2012. o) Respondent No. 1 [Dy. Director of Enforcement] initiated the present proceedings under the PML Act 2002 and registered a complaint being ECIR No. 6/MZO/2012 dated 18.06.2012 under Sections 3 and 4 of the PMLA. p) Impugned Order passed by the Respondent No. 1 in OC No. 14140/2012 on 31.08.2012 thereby confirming the attachment of the following properties of the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 191/17.1 opposite Koteshwari Temple, Murudjanjira- Rs. 45.1 Lacs iii) Shop No. 9, Parmar Complex, Pali- Rs. 4.9 Lacs TOTAL VALUE OF PROPERTIES-Rs. 89,00,000/- Against the Impugned Order 05.04.2013, Nilesh Thakur has preferred FPA-PMLA No. 940/2015. u) In Appeal against the abovementioned Income Tax Assessments, the CIT [Appeals] after considering all documents and records, by its Order dated 17.5.2013 found that the transactions between SPCL and the Appellant were „advances for purchase of land‟ and as such were made for legitimate business purpose under the contract between the parties. The CIT (Appeals) allowed SPCL‟s Appeal for A.Y.s 2008-09, 2009-10 and 2010-11. v) Impugned Order passed by the Respondent No. 1 on 21.06.2013 in OC No. 174/2013 thereby confirming the attachment of the following immovable properties of the Appellant in PAO No. 2/2013 dated 24.01.2013: Immovable properties admeasuring 76.62 acres (30.64.6 hectares) in the following villages of Alibaug: a) 26.91.40 hectares in village Waghvira; b) 3.41.3 hectares in village Chikali; c) 0.31.9 hectares in village Hemnagar The Bank accounts from which the amount was debited for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [Ace Card Hotels] KAPOL- 5327 (Rs. 7859.57/-) [Ace Card Agro Ind.] HSBC-3014412001(Rs.3,18,519.66/-) [Ace C. Agro Ind.] KAPOL- 5295 (Rs. 36,90,134.58/-) [Ace Card Trading] KAPOL- 5333 (Rs. 675.76/-) [Ace Card Reality] KAPOL- 212 (Rs. 76,99,480.87/-) [Ace Card Reality] TOTAL VALUE OF PROPERTIES- Rs. 53,57,01,736/- Against the Impugned Order 01.01.2015 the following appeals have been preferred: 1. FPA-PMLA NO. 941/2015 by Nilesh Thakur; 2. FPA-PMLA NO. 1002/2015 by Ace Card HR; 3. FPA-PMLA NO. 1003/2015 by Ace Card Export; 4. FPA-PMLA NO. 1004/2015 by Dhan Shree trading; 5. FPA-PMLA NO. 1005/2015 by Ace Card Infrasol; 6. FPA-PMLA NO. 1006/2015 by Ace Card Power; 7. FPA-PMLA NO. 1007/2015 by Ace Card Media; 8. FPA-PMLA NO. 1008/2015 by Ace Card Construction 9. FPA-PMLA NO. 1009/2015 by Ace Card Hotels; 10. FPA-PMLA NO. 1010/2015 by Ace Card Agro-Indust; 11. FPA-PMLA NO. 1011/2015 by Ace Card Trading; 12. FPA-PMLA NO. 1012/2015 by Ace Card Reality. y) The Provisional Attachment Order (PAO) No. 13/2015 passed in Original Complaint (OC) No. 465/2015 on 26.3.2015.The Provisional Attachment Order (PAO) No. 16/2015 was passed in Original Complaint (OC) No. 49 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , thereby confirming the attachment of the following properties of the Appellant in PAO No. 13/2015 dated 26.03.2015: i) Flat No. 3,‟H‟ Wing, Flower Valley, Mahad: Rs. 5,00,000/- ii) Flat No. 1-C Block C Viceroy Court CHSL. Thakur Village, Kandivali (East), Mumbai: Rs. 61,25,100/- [Subject matter of Consent Decree] Following property of Ace Card Trading Pvt. Ltd. was attached: iii) Flat 1208, B Wing, Borivali Dwarkanath CHS (Vijay Nagar), Borivali, Mumbai: Rs. 47,37,600 Following property of Ace Card Infrasol Pvt. Ltd. was attached: iv) Flat No. 53,‟B‟ Wing, Swapnaship, situated at final Plot No. 52, Mahant Road, Vile Parle(East), Mumbai: Rs. 2,63,95,100/- v) Flat No. 31,‟A‟ Wing, Swapnaship, situated at final Plot No. 52, Mahant Road, Vile Parle(East), Mumbai: Rs. 1,23,95,100/-[Subject matter of Consent Decree] TOTAL VALUE OF PROPERTIES- Rs. 5,01,52,900/- Against the Impugned Order 27.08.2015, Nilesh Thakur has preferred FPA-PMLA NO. 1113/2015; Ace Card Trading Pvt. Ltd. has preferred FPA-PMLA NO. 1114/2015 and Ace Card Infrasol Pvt. Ltd. has preferred FPA-PMLA NO. 1115/2015. The Impugned Order was passed by the Respondent No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority failed to appreciate that failure to comply with the express mandate of S. 5 of the Act renders the entire proceedings illegal and the Hon‟ble Authority ought not to have confirmed the Provisional Attachment Order on this ground alone. (Aslam Mohammed Merchant vs. Competent Authority, (2008) 14 SCC 186, rendered in the context of S. 68- H of NDPS Act which is substantially in parimateria with S. 5 r/w S. 8 of PMLA). d) In this regard, it is relevant to mention that the Adjudicating Authority has proceeded to confirm the attachment on the "prima facie conclusion that the defendant have committed the Scheduled Offences, generated proceeds of crime and laundered them" and, consequently, observes that "No doubt the properties attached are proceeds of crime or value thereof and are involved in money laundering" . 6. During the course of hearing, the learned counsel appearing on behalf of respondent has admitted that SPCL is an innocent party and not involved either in the schedule offence or any prosecution complaint has been filed. The amount inverted by SPCL is not tainted amount and the funds used for the purchase of the subject properties are based on transactions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by expressly declared to be void. Nothing herein contained shall affect any law in force in India and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to registration of documents." 11. The contract entered into by the parties on 19.07.2007 was not required to be registered or stamped, since it did not by itself, create any rights in property for either party and only spoke of future acts to be performed by the Appellant. The purpose of the agreement, and the transfer of funds, was the acquisition of over 900 acres of land at the maximum price of Rs. 30,00,000/- per acre in different parts of Maharashtra within a period not exceeding five years. 12. Neither the purpose of the contract, nor the contract itself was barred by any law. The funds out of which the subject properties were purchased cannot be said to be tainted in any manner and have been received pursuant to a valid and legally binding agreement. The said aspect of registering the agreement could only be considered by the civil in cases between the two rival parties. The same has not been challenged in the Civil Court by the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tract, and to this end, the monies had been invested in properties and fixed deposits. 15. Mr.Neeraj Atri who is appearing on behalf of the respondent has argued the above appeals and other connected appeals filed by Shapoorji Pallonji & Co. Pvt. Ltd. as well as Kalyani Education Pvt. Ltd.by stating that, no doubt, the amount paid by SPCL is untainted amount who is also innocent party against whom no proceedings are pending. It is submitted by him that SPCL is the victim and is merely a lender to Nilesh J. Thakur. However, his argument is that Nilesh J. Thakur has signed the agreement with SPCL mainly in order to purchase the various properties at the instance of SPCL by taking the favour/ advantages from his brother, Nitish J. Thakur, who was the Government servant and he could have helped Nilesh J. Thakur to purchase the properties. He has also referred various statements made by Nitish J. Thakur against his brother and SPCL. The said issue has already been discussed in the batch of appeals filed by SPCL. The same may also be read as part of this judgement. 16. From the entire material available on record, it appears to this Tribunal that whatever property Shri Nilesh J. Thaku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble Bombay High Court could not be given effect to by the Appellant and the present proceedings come in the way of the Appellant discharging his liabilities under the binding decree passed by the Hon‟ble High Court. It may be noted that the properties named in the schedules to the decree passed by the Bombay High Court are the same as the subject properties in the present cases. 19. Hence, on the face of record, subject properties purchased under a valid and binding contract, the Appellant is under obligation to return the funds/properties under a legal and valid decree passed by a court of competent jurisdiction i.e. the Hon‟ble Bombay High Court. 20. It is not denied by the respondent that the decree of the Hon‟ble Bombay High Court was passed much before the filing of FIR by ACB, Thane, and also prior to commencement of proceedings by Respondent No. 1. Hence the mutual inter-se obligations between the Appellant and SPCL had crystallized much before the commencement of criminal proceedings, and are therefore beyond the pale of suspicion. 21. The PAO‟s issued by Respondent No. 1 are based entirely on the provisions of the Charge Sheet filed by the Anti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement for land aggregation, it was, inter-alia, held by the ITAT that the amounts were advanced by SPCL to the Appellant towards legitimate business advances which has been noted by the ITAT bench which delivered the said Order and Judgment dated 17.11.2017 on the Appellant‟s Income Tax Appeals. 24. The ITAT‟s earlier Order dated 10.4.2015 had been brought to the notice of the Adjudicating Authority. However, since at that time, the Appellant‟s Appeals were still pending before the ITAT, the Adjudicating Authority had held that there was no corresponding Order in the Appellant‟s case and had held as under. "12. The fact remains the issue in case of other Defendants that is Nitish J. Thakur, Nilesh J. Thakur etc. has not been considered favourably as on date by the Income Tax Department." 25. The ITAT‟s Order and Judgment dated 17.11.2017 concerning the Appellant‟s assessment has upheld his case that the amount of Rs. 141.50 Crores had been advanced by SPCL to him under the subject agreement for land aggregation and that the properties acquired out of these funds along with the remainder of these funds have to be made over by me to SPCL. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... functions. Rather, during the hearing of appeals, it was admitted on behalf of respondent no. 1 that the funds were not connected to any criminal activities. It was a pure money. The Respondent No. 1 does not even allege or specify as to what alleged illegal acts/omission were performed by Respondent No. 1 to favour SPCL, in exchange for which the funds were transferred to the Appellant. 29. The charges against Nitish J. Thakur are in respect of alleged amassing of assets disproportionate to known sources of income for the period June 1998 to October 2005 (period of his service), whereas the transfer of funds from SPCL to the Appellant under the contract dated 19.07.2007 took place much later i.e. between 26.09.2007 to 18.08.2009. 30. The documents on record before this Tribunal establish that at the time when the funds of Rs. 141.5 Crores were transferred by SPCL to the Appellant or his group concerns, the brother of the Appellant (Nitish J. Thakur) was not even in government service, leave alone being in a position to render any illegal favour to SPCL during the said period. 31. The following admitted facts and material already placed on record (including ACB Chargesheet dt. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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