TMI Blog2019 (1) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... . Thakur in order to save his skin from the various authorities initiated against him, but the fact remains that the entire money is owned by SPCL. The inter-se dispute between two brothers cannot be decided in the present cases. Similarly, the inter-se dispute between the Nilesh J. Thakur and Kalyani Education Pvt. Ltd. and the connected matters, the same can only be determined in other forum in accordance with law. The scope of these cases is very limited as to whether the amount paid by SPCL to Nilesh J. Thakur is tainted amount or it is a proceed of crime. No such evidence is available on record. Even Mr. Atri admits that it is a clean money and is not a proceed of crime and no case is made out against SPCL for prevention of money laundering. There is not even prima-facie evidence produced by the Respondent No. 1 in order to show that the subject properties are proceeds of crime and are liable to be attached under the provisions of the Prevention of Money Laundering Act 2002. The question of money laundering does not arise in the present case. Subject matter is a civil dispute. It has already been decided by the Bombay High Court by passing the Decree. No hindrance of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd others. Most of the facts and legal issues are common. Thus the said judgement may also be read with the present judgement being passed in the above twenty three appeals filed by Nilesh J. Thakur against various impugned orders passed by the Adjudicating Authority who has confirmed the provisional attachment orders. The details are mentioned in the facts of the case. 2. Shri Nilesh J. Thakur has filed independent appeals challenging the impugned orders as well as provisional attachment orders. On his behalf, separate arguments are addressed, however, on many facts and legal issues, he supported the case of SPCL. He has also narrated the facts as per his own. 3. As per him, the facts are:- a) M/s Shapoorji Pallonji Co Ltd ( SPCL‟) is a company engaged in real estate and construction business. In order to build a land bank‟ in various parts of the State of Maharashtra that were likely to see commercial development and, anticipating a future upward trend in land prices in these areas, SPCL hired the services of the Appellant (Nilesh J. Thakur) to assist it in the process of acquisition of lands. b) On 16.07.2007, SPCL issued a detailed offer letter to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) By separate letters dated 22.03.2010, Nilesh J. Thakur, acting for PRS Enterprises and AcecardInfrasol Pvt. Ltd., assured SPCL that immovable properties purchased by him along with unutilized funds would be transferred to SPCL in due course. i) FIR NO. 56/2011 registered against Nitesh J. Thakur and Nilesh J. Thakur, Santosh Konekar, Sunil N. Bhayade, Ganibhai and Smt. Jayshree Narayan Shesan on a complaint filed by Shri Mukesh Waghela and two others under Section 387, 467, 471 420 of the IPC on 7.2.2011. j) Charge Sheet No. 403/PW/2011 filed before the ACMM 37th by the Mumbai Police on 7.5.2011after completion of Investigation wherein it was held that Nitish Thakur, a Public Servant had undertaken the job of Project Management Consultancy in respect of a redevelopment project of 56 acres of land in Samata Nagar, Kandivali on behalf of SD Corporation in the name of PRS Enterprises with Sudhanshu Khot as the proprietor. Mukesh Waghela and Panduranga Thakur were engaged to undertake a liasoning job for the said project with 5% commission to each (Demanded ₹ 14.80 Crores being 10% of total amount of ₹ 148 Crore) k) SPCL filed Suit No. 2576 of 2011 before the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lesh Thakur valued at ₹ 39.54 Lakhs(Agreement dated 18.01.2008); [ Subject matter of Consent Decree ] iii) Hotel Shoreline, Darbar Road, Janjira admeasuring 700 Sq. Mts in the name of PRS Enterprises valued at ₹ 1.80 Crores (Agreement dated 01.11.2007); iv) Office of Aishwarya Properties at Vandana CHSH, Alibaug -670 Sq. ft in the name of Nilesh Thakur valued at ₹ 11 Lakhs (Agreement dated 21.05.2008); v) Land 0-49-2 at Village Dhokawade, Taluk, Dighodi, Distr. Alibaug with 2 houses No. 540 (area 741 Sqft) and No. 1663 (area 500 Sqft) in the name of N.J. Thakur valued at ₹ 3.44 Crores (Agreement dated 19.03.2008); vi) Gala No. 1 2, Puja CHS, Alibaug admeasuring 662 Sqft in the name of N.J. Thakur value at ₹ 24 Lakhs (Agreement dated 11.09.2008) Following property of Ace Card Trading Pvt. Ltd. was attached: vii) Bungalow No. 62/65, Gorai, Borivili West, Mumbai, 103.70 sqMtrs valued at ₹ 74 Lakhs (Agreement dated 30.08.2012); TOTAL VALUE OF PROPERTIES- ₹ 6,93,94,170/- Against the Impugned Order 31.08.2012, Nilesh Thakur has preferred FPA-PMLA NO. 937/2015 and Ace Card Trading Pvt. Ltd. has preferred FPA-PMLA NO. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w)ACB, Thane filed Charge Sheet bearing No. 5/2014 on 15.3.2014, inter-alia, against Nitish J. Thakur and his family members under Sections 13 (1) (e) 13 (2) of the Prevention of Corruption Act read with Section 109 of the IPC. In the charge sheet, it was alleged that properties purchased by Nilesh J. Thakur and his group concerns out of the ₹ 141.5 Crores advanced by SPCL to him, were the disproportionate assets of Nitish J. Thakur (brother of Nilesh J. Thakur). The Provisional Attachment Order (PAO) No. 19/2014 passed in Original Complaint (OC) No. 370/2014 on 30.09.2014.The Provisional Attachment Order (PAO) No. 23/2014 passed in Original Complaint (OC) No. 379/2014 on 31.12.2014. x) The Impugned Order was passed by the Respondent No. 1 in OC No. 370/2014 on 1.1.2015; thereby confirming the attachment of the following properties of the Appellant in PAO No. 19/2014 dated 30.09.2014: 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 Total valued at ₹ 19,95,25,000/- out of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 408/2014 thereby confirming the attachment of the following properties of the Appellant in PAO No. 23/2014 dated 31.12.2014: i) Commercial Shop No. 4, Shrutisang Co. Society, Alibag- ₹ 1.5 Lakhs ii) Commercial Shop No. 6, Shrutisang Co. Society, Alibag- ₹ 6.78 Lakhs iii) Commercial Shop No. 7, Shrutisang Co. Society, Alibag- ₹ 6.74 Lakhs iv)Commercial Shop No. 8, Shrutisang Co. Society, Alibag- ₹ 6.74 lakhs v) Commercial Shop No. 9, Shrutisang Co. Society, Alibag- ₹ 6.74 lakhs vi) Room Residential Plot next to Building No. 10, OLD MH8 Colony, Borivali West, Mumbai- 91 (11.20 Sq. ft) vii) Room Residential Plot next to Building No. 10, OLD MH8 Colony, Borivali West, Mumbai- 91 (150 Sq. ft) viii) Room Residential Plot next to Building No. 10, OLD MH8 Colony, Borivali West, Mumbai- 91 (10.40. ft) Following property of Ace Card Infrasol Pvt. Ltd. was attached: ix) Flat No. 202, 2nd Floor Sapphire, Ram Mandir Road, MG Road, Cross Road, Vile Parle (E), Mumbai ( Subject matter of Consent Decree) TOTAL VALUE OF PROPERTIES- ₹ 1,82,16, 616/- Against the Impugned Order 01.04.2015, Nilesh Thakur has preferred FPA-PMLA NO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, Swapnaship, situated at final Plot No. 52, Mahant Road, Vile Parle(East), Mumbai: ₹ 1,23,95,100/-[ Subject matter of Consent Decree ] TOTAL VALUE OF PROPERTIES- ₹ 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 in OC No. 495/2015 thereby confirming the attachment in PAO No. 16/2015 dated 31.03.2015. Following property of Ace Card Infasol Pvt. Ltd. was attached: LAND ROVER with vehicle Registration No. MH-02-BR-3900; Vehicle‟s Owner name Santosh Bhimrao Limon: ₹ 81,93,407/- (Note- Letter has been filed by the complainant conveying that correct vehicle No. is MH02BY 3900 which is owned by Ace Card Infrasol (P)) Following property of Ace Card Trading Pvt. Ltd. was attached: AUDI Q with vehicle Registration No. MH-02-CH-777: ₹ 57,00,000/-. Honda CRV with vehicle Registration No. MH-092-BR-3993:Rs. 26,00,000/-. TOTAL VALUE OF PROPERTIES - ₹ 1,64,93,407/- The impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 arising out of a genuine, legal and binding contract between SPCL and the Appellant. It is also admitted by the counsel for the respondent that the funds advanced by SPCL to the Appellant were admittedly not proceeds of crime and/or tainted monies but are the disclosed and legitimate funds of SPCL which were paid to the Appellant/his entities for legitimate business purpose and have to be treated as such i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 party for cancellation and its validity. 13. The funds were not transferred in any illicit or illegal manner but were transferred through normal banking channels. Had the purpose of the agreement been for the purpose implied by the Respondent No. 1 i.e. in consideration of some favour done by Nilesh J. Thakur to SPCL, the funds would have been transferred in cash or through some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 Rs.2 crores Standard Chartered/Mumbai Metro Main Branch 44749 23.01.2009 Rs.5 crores Deutsche Bank/Kodak House Branch 002482 24.04.2009 Rs.10 crores Standard Chartered/MG Road Branch 243883 23.06.2009 Rs.10 crores Standard Chartered/MG Road Branch 243848 18.08.2009 Rs.20 crores Standard Chartered/MG Road Branch Total Rs.57 Crores The said funds were thereafter transferred to various group entities under ownership and control of the Nilesh J. Thakur and used to purchase properties and make investments through the said entities. 14. On 22.03.2010, M/s PRS Enterprises and AceCardInfrasol Pvt. Ltd. issued letters confirming to SPCL that they would perform the contract, and to this end, the monies had been invested in properties and fixed deposits. 15. Mr.Neeraj Atri who is appearing on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gument of Mr. Atri with regard to the orders dated 30.12.2010 passed by the Assessing Officer which is helping the case of ED, the same has already been set- aside by the Order and Judgement dated 10.4.2015. passed by the ITAT. 17. Admittedly, as the performance of the Appellant had not proceeded satisfactorily, SPCL filed a suit before the Bombay High Court being Suit No. 2576 of 2011 [SPCL Vs. Nilesh Thakur Ors.]. The Bombay High Court, by its consent decree dated 19.10.2011 directed the Defendant No. 3 to refund the monies to SPCL and hand over any properties purchased with the fund of ₹ 141.5 crores received from SPCL. It may be noted that even under the Contract between the parties dated 19.07.2007, the Appellant was obligated to refund the amounts to SPCL in event of his failure to perform the contract. 18. Under the consent decree dated 19.10.2011, the Appellant is bound to return the monies and properties as directed by the Hon‟ble Bombay High Court. However, as a result of the attachment in the present proceedings, the decree of the Hon‟ble Bombay High Court could not be given effect to by the Appellant and the present proceedings come in the way o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s finally came to be decided by the ITAT in November 2017 by way of a common Order and Judgment dated 1711.2017. By way of the said Order and Judgment dated 17.11.2017, the ITAT reversed the findings of the Assessing Officer and the CIT Appeals and held that the monies received by the Appellant from SPCL was a business advance received under the subject agreement and was not income of the Appellant. Therefore, the ITAT set aside the Order passed by the CIT Appeals and directed the Assessing Officer [ITO] to delete the addition made under Section 56 (2)(vi) of the Income Tax Act with regards to the advance received by the Appellant from SPCL. Thus by the said Order and Judgment the ITAT has confirmed and upheld the Appellant‟s statement and assertion that the monies received by me from SPCL was a business advance under the subject agreement for land aggregation and was not income. 23. In April 2015, by way of Order and Judgment dated 10.4.2015 passed by the ITAT in the Orders passed relating to the assessment of SPCL, in relation to the same transaction under the subject agreement for land aggregation, it was, inter-alia , held by the ITAT that the amounts were advanced by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeds of crime. 27. The said Order and Judgment dated 17.11.2017 of the ITAT is a subsequent event which has occurred during the pendency of the above Appeals and is important fact and event in order to decide the real controversy between the parties. Therefore, it is vital decision which would go and decide as to whether the attachment under the PAO‟s issued by Respondent No. 1 is to be vacated and the properties covered thereby freed from attachment. The said Order and Judgment had not been passed at the time of filing of the present Appeal, otherwise the same could not have been produced earlier. The same has not been set-aside by any court as informed by the parties. Therefore, the said subsequent event is taken on record which is brought by the appellant. There is also no opposition to this respect by the ED. 28. There is no basis for the allegation of the Respondent No. 1 that the funds were tainted proceeds of crime, and that were paid by SPCL to the Appellant in consideration for alleged favours done by the Appellant‟s brother, Nitish J. Thakur while discharging his official functions. Rather, during the hearing of appeals, it was admitted on behalf of re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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