9911796707
TMI Blog2019 (1) TMI 1312X X X X Extracts X X X X X X X X Extracts X X X X ..... MP-PMLA-3082/MUM/2017 (Misc), MP-PMLA-2640/MUM/2016 (Stay), FPA-PMLA-1408/MUM/2016, MP-PMLA-3083/MUM/2017 (Misc), MP-PMLA-2641/MUM/2016 (Stay), FPA-PMLA-1409/MUM/2016, MP-PMLA-3084/MUM/2017 (Misc), MP-PMLA-2642/MUM/2016 (Stay), FPA-PMLA-1410/MUM/2016, MP-PMLA-3085/MUM/2017 (Misc), FPA-PMLA-1479/MUM/2016, MP-PMLA-3079/MUM/2017 (Misc), FPA-PMLA-1211/MUM/2016, MP-PMLA-2813/MUM/2016(Stay), FPA-PMLA-1491/MUM/2016 Justice Manmohan Singh Chairman For the Appellant : Shri Gaurav Agarwal, Advocate, Shri Gurmehar S. Sistani, Advocate For the Respondent : Mr. Neeraj Atri, Advocate, Mr. Rahul Narayan, Advocate And Mr. Shashwat Goel, Advocate JUDGEMENT FPA-PMLA-1104-1105, 1406-1410, 1479/MUM/2016, FPA-PMLA-1211 & 1491/MUM/2016 1. By this common order, I propose to decide all pending appeals and crossappeals filed by the above-mentioned parties. The details of parties/titles are mentioned in FPA-PMLA no. 1407 of 2016 printed above for noticing the array of parties before this Appellate Tribunal as also before the Adjudicating Authority PMLA. 2. The Respondents nos. 2, 3, 4 & 5 are the accused in the proceedings adopted by the Anti Corruption Bureau under Section 13(1)( e) of the Preventio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.7.2007 and 19.7.2007 together constitute the agreement / contract between SPCL and Respondent No. 3 and is hereinafter called "the subject Agreement". The said letters dated 16.7.2007 and 19.7.2007 are filed in the appeal. g) During the years 2007 and 2008, pursuant to the subject agreement mentioned above, SPCL advanced amounts aggregating to Rs. 84.50 Crores to M/s PRS Enterprises by way of cheques drawn on Standard Chartered Bank and Deutsche Bank. The details of the payments made by SPCL to PRS Enterprises given in paragraph No. 3.8 of the 1104 Appeal along with copies of Bank Statements of SPCL‟s Accounts with Standard Chartered Bank and Deutsche Bank are filed respectively in appeal. h) The payment of Rs. 84.50 Crores as aforesaid were deposited by Respondent No. 3 (Nilesh Thakur) into the Bank Account of M/s. PRS Enterprises (Respondent No. 6) with the Greater Bombay Co-operative Bank, Andheri, Mumbai ("GBCB") i) Pursuant to the subject Agreement, as per the instructions of the Respondent No. 3, SPCL also made payments aggregating to Rs. 57 Crores to Respondent No. 9 (i.e. M/s AcecardInfrasolPvt. Ltd.) [hereinafter referred to as "AIPL"] by way of cheques drawn b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent No. 3 is also the Promoter / Director of Respondent Nos. 6 to 19, 21 to 25 Companies and is also Trustee of Respondent No. 20 Trust [Thakur Family Trust] and all the said entities/ Firms/ Companies/ Trust were/are in the control of Respondent No. 3. The said entities / Firms/ Companies/ Trust controlled by Respondent No. 3 [Nilesh Thakur] are hereinafter collectively called "Nilesh Thakur Group". o) The immovable properties, vehicles Fixed Deposit Receipts ["FDR‟s] and the monies lying in Bank Accounts mentioned at (a) to (d) above are clearly of SPCL‟s ownership having been acquired out of SPCL‟s funds pursuant to the subject Agreement. The said immovable properties, Vehicles FDR‟s, amounts lying in Bank Accounts as also the amounts advanced M/s. SRB Enterprises and Kalyani Group have been subject matter of various Provisional Attachment Orders issued by Respondent No. 1 [Director of Enforcement] in PMLA proceedings on the allegation that the said properties constitute proceeds of crime. p) By his letters (both) dated 22.3.2010 [as Proprietor of M/s. PRS Enterprises and Director (AIPL)], Respondent No. 3 informed SPCL that he would ensure that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PCL to produce some documents. The said documents were duly produced by SPCL. v) By way of its letter dated 25.6.2014, SPCL forwarded a copy of the Consent Decree passed by the Bombay High Court to Respondent No. 1 / Director of Enforcement and requested Respondent No. 1 not to attach the properties under the Consent Decree which belonged to SPCL. w) In February, 2015, Respondent No. 3 [Nilesh Thakur] informed SPCL that some properties of SPCL‟s ownership under the Consent Decree had been attached by the Respondent No. 1 and in respect thereof proceedings were pending before the Adjudicating Authority. x) In March, 2015, SPCL filed Execution Application in the Bombay High Court being Execution Application No. 1580 of 2015 for enforcement of the Consent Decree mentioned above. The Hon‟ble High Court has issued Notice under Order XXI Rule 22 of the CPC to the Defendants / Judgement Debtors therein. The said Notice is pending hearing before the Hon‟ble High Court, Bombay. y) By its Order dated 10.4.2015, the ITAT dismissed the Appeal of the Income Tax Department against the CIT [Appeals] Order dated 17.5.2013 mentioned above.Copy of the Order dated 10.4.2015 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.8.2012 passed in Original Complaint No. 140 of 2012. (ii) PAO No. 7 of 2012 dated 27.11.2012 PAO 7/12 was confirmed by the Adjudicating Authority by way of Order dated 5.4.2013 passed in Original Complaint No. 169 of 2012. (iii) PAO No. 2 of 2013 dated 24.1.2013 PAO 2/13 was confirmed by the Adjudicating Authority by way of Order dated 21.6.2013 passed in Original Complaint No. 174 of 2013. SPCL was not made a party Defendant to the Original Complaint Nos. 140 of 2012, 169 of 2012 and 174 of 2013 mentioned at Notes 1 to 3 above and the decisions on the three Original Complaints confirming the attachment under the PAO‟s were rendered in SPCL‟s absence. 7.7 Respondent No. 1 issued the following Provisional Attachment Orders in September, 2014 and March, 2015 on the basis of the second FIR being: (i) PAO No. 19 of 2014 dated 30.9.2014 PAO 19/14 was confirmed by the Adjudicating Authority by way of Order dated 1.1.2015 passed in Original Complaint No. 370 of 2014. (ii) PAO No. 23 of 2014 dated 31.12.2014 PAO 23/14 was confirmed by the Adjudicating Authority by way of Order dated 1.4.2015 passed in Original Complaint No. 408 of 2015. 7.8 After becoming aware of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O 7 of 2012, (iv) M.A 07 of 2015 in FPA-PMLA 895 of 2015 arising out of O.C. No. 370 of 2014 and PAO 19 of 2014, (v) M.A 06 of 2015 in FPA-PMLA 896 of 2015 arising out of O.C. No. 408 of 2015 and PAO 23 of 2014. Copy of Misc. Application No. 07 of 2015 isfiled as Annexure - "4" in Appeal no. FPA-PMLA- 1407 of 2016). 7.11 During the period 2015 to January, 2016, Respondent No. 1 [Director of Enforcement] through Counsel filed preliminary submission in each of the five 2015 M.A.‟s, whereby it was submitted, inter-alia, as under: (i) that the Judgment of this Tribunal in the case of Central Bank of India Vs. R. Mohandoss was not binding precedent for the Adjudicating Authority. (ii) that the Adjudicating Authority has no power to modify, recall or review any Order passed by him. (iii) the entire exercise being carried out by way of the 2015 M.A.‟s was misplaced and is beyond jurisdiction created by statute and hence the notice issued by the Adjudicating Authority to the Respondent No.1 is liable to be recalled and proceedings closed. Copy of Respondent No. 1‟s preliminary submissions is filed as Annexure - "5" in Appeal no. FPAPMLA- 1407 of 2016 ) 7.12 SPCL fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered fair and proper that Respondent No. 1 shall consider SPCL‟s claims under the proviso to Section 8 (2) of the PMLA and Respondent No. 1 shall give opportunity of hearing to SPCL. Respondent No. 1 was directed to decide the matter after proper examination and investigation. However, by the Order, the Adjudicating Authority directed that the confirmed PAO‟s [being the five PAO‟s referred to at Sr. Nos. 21 and 22 above] shall remain in force.Copy of the impugned Order dated 16.6.2016 is filed in Appeal no. FPA-PMLA- 1407 of 2016.) 7.16 Aggrieved by the common Order dated 16.6.2016 passed in the five 2015 M.A.‟s, SPCL filed Appeals in connection therewith [five Appeals in all] before this Hon‟ble Tribunal being Appeal Nos. (i) FPA-PMLA Appeal Nos. 1406 of 2016, (ii) FPA-PMLA Appeal Nos. 1407 of 2016, (iii) FPA-PMLA Appeal Nos. 1408 of 2016, (iv) FPA-PMLA Appeal Nos. 1409 of 2016, (v) FPA-PMLA Appeal Nos. 1410 of 2016, The said five Appeals arising out of the common Order dated 16.6.2016 passed in the 2015 M.A.‟s are for convenience sake collectively called ["the five M.A. Appeals"]. 7.17 In each of the five M.A. Appeals of July 2016, SPCL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 1 by way of the PAO‟s, that the same were not involved in money laundering in any manner and that the same were not proceeds of crime. Thereby, SPCL prayed for vacating the attachment and dismissal of the Original Complaints filed by Respondent No. 1. 8.3 In O.C. Nos. 465/15 and 495/15, certain entities of the Nilesh Thakur Group [who had been arrayed as party Defendants to the concerned O.C.‟s] also filed their Reply Statements opposing the said O.C.‟s and thereby the Nilesh Thakur Group also brought on record that all the properties being subject matter of the PAO‟s were of SPCL‟s ownership and entitlement and were purchased out of SPCL‟s funds under the subject Agreement and were required to be handed over to SPCL as per the mandate of the Consent Decree passed by the Bombay High Court. Thereby, the Nilesh Thakur Group also prayed for vacating the attachment and dismissal of the Original Complaint filed by Respondent No.1. 8.4 Respondent No. 1 [Director of Enforcement] also filed Statements commenting on SPCL‟s Misc. Applications. 8.5 In the month of August, 2015, in the proceedings of O.C.465/15 and O.C. 495/15, the Adjudicating A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Documents 1 Ro House/ Bunglow No.62/65, Road No.RSC-13, MHADA Layout, Gorai, Borivali West, Mumbai-92 [103 .70 sq. mtrs] 74,00,000 2 Shop No.9, Shri Complex, B-Wing, Ground Floor, LT Road, Borivali (W), Mumbai-91 [300 sq. ft.] 21,00,000 3 Flat No.1D/201, 2nd Floor, NG Sun City, Thakur Village, Kandivali (E), Mumbai-101 [294 sq. ft] 39,54,170 4 Hotel Shoreline at Darbar Road, Murud, Janjira, [700 sq. mtrs] 1,80,00,000 5 Office of Aishwarya Properties [shop] at Vandana CHSH, Near Alibagu Bus Depot, Alibaug [670 sq. ft] city survey No.722, 722/1 and 722/2 11,00,000 6 Land 0-49-2 (HR) at villgeDhokawade, TalukDighod, Distt. Alibagu, S. No.237 (old) S. No.65/3 & 46/2) with two houses no.540(area 741 sq. ft.) and No.1663 (area 500 sq. ft) 3,44,40,000 7 Gala No.1 & 2, Puja CHS, City Surey No.1125, Alibagu [total area 622 sq. ft.] 24,00,000 6,93,94,170 2. Appeal No.FPA-1410/16 (OC No.169/12): Sr. No. Particulars Consideration mentioned in the Documents 1 Plot of land at City Survey No.73, Hissa No.0.30.6 city survey No.1009 area 3388.88 sq.mtrs at Alibag. 39,00,000 2 S. No.191/17, 1 for 21.7 gunthas land plot, opposite Koteshwari Temple, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L 211 Ice Card Construction Pvt Ltd 2502710.87 20 KAPOL 212 Ace Card Reality Pvt Ltd 7699480.87 21 KAPOL 230 Ace Card Power Pvt Ltd 1539810.23 22 KAPOL 231 Ace Card Media Pvt. Ltd 1539810.23 23 KAPOL 232 Ace Card Hotels & Resorts Pvt. Ltd. 1539810.23 24 KAPOL 233 Ace Card Export Pvt. Ltd 4620179.23 25 KAPOL 5392 Dhan Share Trading Pvt Ltd 98,71,770.97 9,08,65,614 26 KAPOL FDR Nos.36828 to 361856 of Rs. 1 crore each Thakur Family Trust 290000000 290000000 27 BOI 3220110000304 Siddhivinayak Enterprises 11812.5 11,812.5 28 UBI 441601010036441 Ace Card Inforasol Pvt Ltd 13219.5 29 UBI 546410110050207 Ace Card InfrasolPvt. Ltd 100000 1,13,219.5 30 HSBC 3014412001 Ace Card Agro Industries Pvt Ltd 318519.66 3,18,519.66 Fixed Deposits 30,32,90,421 Bank a/c balance 9,32,39,174 Gr Total 39,65,29,595 5. Appeal No.FPA-1408/16 (OC No.408/15): Sr. No. Particulars Consideration mentioned in the Documents 1 Commercial Shop No.4, Shrutisarang Cooperative Society, Alibag Area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnected persons. The ED has sought to attach properties worth Rs. 56,02,05,718/- standing in the name of Kalyani Charitable Trust, Kalyani Education Pvt. Ltd. and one RavindraSapkal . The properties which are subject matter of attachment are as follows:- s. no. Location Consideration mentioned in the deed 1 Office premises at FO-22 [area 374.40 sq. ft.] alongwith open parking FD-10 at Shubhada CHS Pochkanwala Road Worli, Mumbai in the name of RavindraSapkal purchased from the account of Kalyani Charitable Trust‟s Axis Bank account 65,00,000 2 Fixed Deposit Syndicate Bank Byuculla 65,00,000 Building alongwith ancillary structures and the land upon which said immoveable property stands today in the Campus of Kalyani Charitable Trust at plot Gut No.335, 340, 341, 342, 345, 367 of Village Anjaneri, Tal. Trimbakeshwar, Distt. Nashik. 40,50,00,000 4 Bank Balance account in RavindraSapkal‟s bank account in Axis Bank, PrabhadeviWorli Branch 5,32,469 Buildings alongwith ancillary structure and the land upon immovable property stand today situated in the Campus of Kalyani Education Pvt. Ltd. at Plot Bearing Gut No.370, 336, 453 of village Anjaneri& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bunglow No.62/65, Road No.RSC-13, MHADA Layout, Gorai, Borivali West, Mumbai-92 [103 .70 sq. mtrs] 2 20.05.2008 21,00,000 Shop No.9, Shri Complex, B-Wing, Ground Floor, LT Road, Borivali (W), Mumbai-91 [300 sq. ft.] 3 18.01.2008 39,54,170 Flat No.1D/201, 2nd Floor, NG Sun City, Thakur Village, Kandivali (E), Mumbai-101 [294 sq. ft] 4 01.11.2007 1,80,00,000 Hotel Shoreline at Darbar Road, Murud, Janjira, [700 sq. mtrs] 5 21.05.2008 11,00,000 Office of Aishwarya Properties [shop] at Vandana CHSH, Near Alibagu Bus Depot, Alibaug [670 sq. ft] city survey No.722, 722/1 and 722/2 6 19.03.2008 3,44,40,000 Land 0-49-2 (HR) at villgeDhokawade, TalukDighod, Distt. Alibagu, S. No.237 (old) S. No.65/3 & 46/2) with two houses no.540(area 741 sq. ft.) and No.1663 (area 500 sq. ft) 7 11.09.2008 24,00,000 Gala No.1 & 2, Puja CHS, City Surey NO.1125, Alibagu [total area 622 sq. ft.] Total 6,93,94,170 14. Properties attached in OC No.169/12: - (The SPCL has chal lenged the aforesaid attachment in PMLA Appeal No.1410/2016) Sr. No. Date of Execution of Documents Consideration mentioned in the Documents Particulars 1 11.05.2009 39,00,000 Plot of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd Power Pvt Ltd 332393.07 12 KAPOL 5329 Ace Card Media Pvt Ltd 182.76 13 KAPOL 5330 Ace Card HR Pvt Ltd 2862.64 14 KAPOL 5331 Ace Card Hotels & Resorts Pvt Ltd 182.76 15 KAPOL 5332 Ace Card Construction Pvt Ltd 5031732.65 16 KAPOL 5333 Ace Card Reality Pvt Ltd 675.76 17 KAPOL 5392 Dhan Share Trading Pvt Ltd 9871770.97 18 KAPOL 16334 Thakur Family Trust 52485092.59 19 KAPOL 211 Ice Card Construction Pvt Ltd 2502710.87 20 KAPOL 212 Ace Card Reality Pvt Ltd 7699480.87 21 KAPOL 230 Ace Card Power Pvt Ltd 1539810.23 22 KAPOL 231 Ace Card Media Pvt. Ltd 1539810.23 23 KAPOL 232 Ace Card Hotels & Resorts Pvt. Ltd. 1539810.23 24 KAPOL 233 Ace Card Export Pvt. Ltd 4620179.23 25 KAPOL 5392 Dhan Share Trading Pvt Ltd 98,71,770.97 9,08,65,614 26 KAPOL FDR Nos.36828 to 361856 of Rs. 1 crore each Thakur Family Trust 290000000 290000000 27 BOI 3220110000304 Siddhivinayak Enterprises 11812.5 11,812.5 28 UBI 441601010036441 Ace Card Inforasol Pvt Ltd 13219.5 29 UBI 546410110050207 Ace Card ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... East), Mumbai. 3 31.12.2004 1,23,95,100 Flat No.31, A-Wing, Swapnashilp, situated at final Plot No. 52, Mahant Road, VilleParle (East), Mumbai. 4 29.08.2009 61,25,100 Flat No. 1- C Block- C Viceroy Court CHSL. ThakurVillage, Kandivali (East), Mumbai 400101 5 13.09.2010 47,37,600 Flat 1208, B Wing, BorivaliDwarkanath CHS (Vijay Nagar), Borivali, Mumbai 5,01,52,900 19. Properties attached in OC No.495/15: - (The SPCL has chal lenged the aforesaid attachment in PMLA Appeal No.1105/2015) Vehicle Made Vehicle Registration no. Vehicle's owner name Amount AUDI Q MH-02-CH-777 M/s. Acecard Trading Pvt. Ltd. 5,700,000 HONDA CRV MH-092-BR-3993 M/s. Acecard Trading Pvt. Ltd. 2,600,000 LAND ROVER MH-02-BY-3900 AcecardInfrasol Pvt. Ltd. 81,93,407 Total: 1,64,93,407 20. Total value of properties/ bank accounts/ FDs/ cars etc attached is Rs. 1,32,33,16,406/-. 21. Nilesh Thakur had also invested part of the monies advanced by SPCL under the land aggregation agreement with Respondent No. 2 Firm [i.e. M/s. SRB Developers] for booking 4 ownership Flats in the Building to be constructed by Respondent No. 2 Firm at Plot No. 6, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... month of May, 2016. 24.6 Respondent No. 2 Firm and Respondent No. 4 filed their respective Affidavits in Reply in the proceedings of the O.C 596/16 in June/July, 2016. SPCL as Intervenor filed Intervention Application in the proceedings of the O.C. 596/16 under the proviso to Section 8(2) of the PML Act and also filed a supplemental Affidavit dated 29.6.2016. In view of the directions of the Adjudicating Authority, SPCL filed its Affidavit in Reply dated 12.7.2016 to the O.C. 596/16. The Adjudicating Authority passed Order and Judgment dated 11.8.2016 on the O.C. 596/16 confirming the Provisional Attachment Order 3 of 2016. 25. Being aggrieved by the Order dated 11.8.2016; SPCL filed the above Appeal before this Tribunal in September, 2016. 26. If the appeals filed by SPCL are allowed on merit, the appeal filed by SRB Developers has to be allowed and the amount deposited by the said company in its appeal is to be refunded to SPCL by ED forthwith. 27. Appeal no.1211 of 2016 arising out of Original Complaint no. 512 of 2015. Shapoorji Pallonji & Co. Pvt. Ltd., ....Appellant/Org. Defendant No. 12 V/s. 1. Dy Director, Directorate of Enforcement ...Respondent No.1/ Org. Complaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as loans and advances as per the case of appellant. The advances made by the Nilesh Thakur Group in Respondent No. 3 [i.e. Kalyani Charitable Trust] was to the tune of Rs. 41.80 Crores. Similarly the advances made by the Nilesh Thakur Group in the Respondent No. 4 (i.e Kalyani Education Pvt. Ltd.) was to the tune of Rs. 18.57 Crores. The remaining amount was advanced to Respondent No. 2 ( i.e Ravindra Sapkal, Proprietor of Ravindra Constructions). 28.3 Out of the aforesaid amount of Rs. 61.42 Crores advanced to Kalyani Group, the Kalyani Group purchased various properties and invested the amount in fixed deposits and made some construction. The amounts advanced by the Nilesh Thakur Group to the entities of the Kalyani Group are shown as loans and advances in the Books of Accounts of the Nilesh Thakur Group. This is also acknowledged by Respondent No. 1 in clause 7.1 of the Original Complaint No. 512 of 2015 ("O.C. 512/15").The case of the Kalyani Group is that it was merely a donation to the trust and no investment. 28.4 Respondent No. 1 (Director of Enforcement) issued a Provisional Attachment Order No. 18 of 2015 (PAO No. 18/15) on the basis of the second FIR (ECIR No. 6/M20/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he SPCL to Mr. Nilesh and his associate firms and companies 31. It is undisputed fact that the Appel lant Company engaged the services of Shri Ni lesh Thakur to acquire 900 acres of land in various districts of Maharashtra, Ni lesh Thakur being fami l iar with the said area. The said agreement is duly recorded in letters dated 16.07.2007 and 19.07.2007 and the same constitutes the contract between the parties. The Appel lant Company has placed on record detai led submissions on contract between the Appel lant Company and Ni lesh Thakur page no.823 of Appeal No.1104). The Appel lant Company has also produced many judgments which clearly lay down the legal position that the exchange of letters form a contact , however, the same have not been dealt by the respondent no. 1 in the eyes of law, the basic law laid down has been ignored by both authorities. 32. In the admitted position between al l the parties that in view of to the aforesaid agreement / contract contained in the letter dated 16.07.2007 and 19.07.2007 , the Appel lant Company transferred Rs. 141.50 crores to the Ni lesh Thakur Group in 2007-2009. The said amount of Rs. 141.50 crores is legitimately earned money of the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illages in Alibaug namely, 26.91.40 Hectare in village Waghvira, 3.41.3 Hectare in Village Chikali and 0.31.9 Hectare in village Hemnagar [totally valued at Rs. 19,19,25,000/- out of which Rs. 5,27,52,859/- has already been attached in the investigation carried out under ECIR/03/11]. Thus remaining consideration for purchase of Surya Roshni land amounting to Rs. 13,91,72,141 370/14 6. 25.04. 2008 Nilesh Janardan Thakur PRS Enterprises A/c No. 1537 of GBCB Bank 4,90,000/- Shop No.9, Parmar Complex, Pali, Raigad 169/12 7. 20.05. 2008 Nilesh Janardan Thakur PRS Enterprises A/c No. 1537 of GBCB Bank 21,00,000/- Shop No.9, Shri Complex, B-Wing, Ground Floor, LT Road, Borivali (W), Mumbai-91 [300 sq. ft.] 140/12 8. 21.05. 2008 Nilesh Janardan Thakur PRS Enterprises A/c No. 1537 of GBCB Bank 11,00,000/- Office of Aishwarya Properties [shop] at Vandana CHS, Near Alibaug Bus Depot, Alibaug [670 sq. ft] city survey No.722, 722/1 and 722/2 140/12 9. 16.06. 2008 Nilesh Janardan Thakur PRS Enterprises A/c No. 1537 of GBCB Bank 45,10,000/- S. No.191/17, 1 for 21.7 gunthas land plot, opposite Koteshwari Temple, Murud- Janjira, Distt. Raigad 169/12 10. 07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be signed by the said Nilesh Thakur and Nitish Thakur or by the sheer recording the delayed statement which is admitted by the respondent counsel, therefore, full credence can be given to the contents of the said statements unless the cases of the appellants are demolished by the said document for the purpose of rendering decision in the above appeal alongwith other companion appeals filed by the Appellant Company. 37.2 After reading the said alleged statements of Nitish Thakur, Counsel for the ED had laid stress that an alleged employee of the Appellant Company named Gautam Patel had accompanied Nilesh Thakur to Dubai to assist in formation of a company based in Dubai known as Strategic Infrasol LLP. This Tribunal had, therefore, asked the appellant company to file affidavit to confirm whether or not the said Gautam Patel was an employee of the Appellant. In view of same, chance of rebuttal was given to the SPCL. 38. SPCL has therefore filed an affidavit of Mahesh Gursale dated 22.10.2018 wherein it was deposed that after his inquiry with the HR Department of the Appellant Company who has confirmed that nobody by the name of Gautam Patel was on the rolls of the Appellant Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld by Nilesh Thakur Group entities with Kapol Bank had been attached. The balances in Bank Accounts, FDR‟s of the Nilesh Thakur Group with Kapol Bank is hereinafter for convenience sake referred to as "the subject investments" 42. Pursuant to the confirmation of the PAO by way of Order dated 01.01.2015 passed in Original Complaint No. 370 of 2014, by way of their letter dated 30.06.2015, the ED had required Kapol Bank to make over the amounts of the subject investments totalling to Rs. 38,08,65,613/- [Rs. 38.08 Crores] along with all interest accrued thereon, by way of Pay Order/ Demand Draft favouring the Deputy Director, Directorate of Enforcement, Mumbai. Kapol Bank had informed Nilesh Thakur by way of Kapol Bank‟s letter dated 07.08.2015 that the entire amount of Rs. 38.08 Crores along with all interest had been remitted to the E.D. by way of Pay Order. Thus, the entire amount of the subject investments of Rs. 38.08 Crores along with interest accrued thereon has been paid over to and is presently lying with Respondent No. 1 /E.D. 43. As already mentioned that if the Appeals filed by the Nilesh Thakur Group entities are allowed and the properties attached by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. It would therefore not be prudent nor in the interest of the Nilesh Thakur Group entities, for the amount of the subject investments to be returned to Kapol Bank into the Nilesh Thakur Group‟s Bank Accounts since in that event Kapol Bank would never be in a financial position to pay over the amounts / proceeds of the subject investments to the Nilesh Thakur Group entities who would stand to lose the entire investment monies and all interest accrued thereon if returned to Kapol Bank. 47. The amount of subject investments lying with the E.D. would have accrued interest for a period of about three years and would have grown to at least about Rs. 45 Crores or thereabouts. These monies had been remitted to the E.D. out of the balances in Bank Accounts and FDR‟s of the Nilesh Thakur Group with Kapol Bank which monies are of the entitlement of Shapoorji Pallonji & Co. Ltd. ["SPCL"] and in respect whereof the Nilesh Thakur Group had submitted to as Decree on admission / Consent Decree dated 19.10.2011 passed by the Bombay High Court as has been already stated by the Nilesh Thakur Group entities in the proceedings of the Original Complaints and the above Appeals. 48. The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 44 Crores or thereabouts lying with itself, along with all interest accrued thereon, to SPCL for being appropriated by SPCL towards the dues under the Consent Decree, to reduce the Nilesh Thakur Group entities‟ obligations and liabilities under the Consent Decree. 51. It is alleged on behalf of Nilesh Thakur as well as the appellants that if such order is passed in favour of SPCL, the entire amount may be handed over to appellant by the Respondent No. 1 /E.D. of his obligation in law to make over / return the amounts representing the subject investments upon raising of the attachment thereon strictly without prejudice. Thus, the E.D. is ordered and directed by this Tribunal to deposit the monies / amounts of Rs. 45 Crores or thereabouts representing the subject investments along with all interest accrued thereon, either to the appellant or to the office of the Prothonotary and Senior Master of the Hon‟ble Bombay High Court, to the credit of the proceedings of Chamber Summons No. 1554 of 2016 in Execution Application No. 1580 of 2011 which is referred to above. 52. It is an undisputed and accepted fact that the attached properties had been purchased out of funds pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court in Shankar Sitaram Sontake v. Balkrishna Sitram Sontakke, 1995 SCR 99) 56. No Suit wi l l l ie for setting aside a Consent Decree (see Order XXI I I Rule 3A of the Code of Civi l Procedure, 1908). The law and statutory provisions is clear that a Consent Decree has the same effect and legal efficacy as a Decree passed in invitum. The contention of the ED in that regard is contrary to law and is rejected. 57. It was argued on behalf of respondent that the proceedings and Orders passed by the authorities under the Income Tax Act have no connection with the present proceedings under the PML Act and therefore, this Authority ought not to take cognizance of the Orders and Judgment dated 10.04.2015 of the ITAT passed in the assessment of the Appel lant. 58. The said contention is without any force as the proceedings under the PML Act as initiated by the ED arose on the basis of the Charge Sheet fi led by the ACB, Thane on 15.03.2014 against Shri Nitish Thakur, Ni lesh Thakur and others [ including their fami ly members] under Section 13(1) (e) read with 13(2) of the Prevention of Corruption Act, 1988 ["the POC Act"]. The entire basis of the ACB's Charge Sheet are the adver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position along with document evidence. There is no contrary evidence produced by ED. The counsel for ED maintain the si lence once the documents were confronted with him. 64. The said details are as follows:- a) Shri Nitish Thakur joined Govt Service as Dy. Collector in the State of Maharashtra on 02.03.1994 and held various positions in the State Government. A chart showing the service particulars of Shri Nitish Thakur, Dy. Collector, is annexed with the appeal. b) Shri Nitish Thakur went on leave from 02.12.2002 without any leave application and without any sanction of leave and was absent till 08.06.2004. This is clear from the fact that departmental proceedings were initiated against Shri Nitish Thakur for his unauthorized absence. Copy of chargesheet against Shri Nitish Thakur is also annexed with the appeal. c) Shri Nitish Thakur joined the post of Special Executive Officer, JJ Group Hospital, Mumbai on 09.06.2004. However, he remained absence on medical grounds. He was transferred, in the year 2007, to the post of Special Executive Officer, Konkan Railway, but he did not resume his duties, either on said post or any other post. All these facts are clear from the letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Revenue [Income Tax department] [against the Order of the CIT (Appeals)], has given a definite and clear finding that the amount of Rs. 141.50 Crores advanced by SPCL to Nilesh Thakur [Respondent No. 3] was for business purposes. 70. The Order of the ITAT confirmed the Order of the CIT (Appeals) dated 17.5.2013 which had set aside the Order of the ITO which had been heavily relied upon by the ACB in the Charge Sheet on the basis of which the reasonable belief was formed by the Respondent No. 1 /Org. Complainant i.e. Directorate of Enforcement. The Adjudicating Authority failed to appreciate that by reason of the Order of the CIT (Appeals) which was confirmed by the ITAT by its Order dated 10.4.2015, the ITO‟s Order [which was relied upon by the ACB in the Charge Sheet and subsequently by the Respondent No. 1 / Org. Complainant] was set aside. 71. Therefore, the entire foundation of the reasonable belief set out in the Provisional Attachment Order ceased to exist and therefore the same had to be vacated and set aside. 72. The PAO‟s issued by the Directorate of Enforcement which were subject matter of the Original Complaints from which the above Appeals arise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 111.50 Crores or properties acquired out of the same was clearly beyond the power of authority and the Directorate of Enforcement and the said PAO‟s and the Original Complaints in connection therewith are null and void, a nullity and of no legal effect whatsoever. 78. In the l ight of above, there is absolutely no connection between the monies paid by the Appel lant to Ni lesh Thakur and the discharge of publ ic duties by the brother of Ni lesh Thakur [Nitish Thakur] . Nitesh Thakur had effectively not discharged any publ ic duties since 2002. 79. The Enforcement Directorate has incorrectly attached the properties standing in the name of Ni lesh Thakur Group only by making a bald statement that they are disproportionate assets of Nitesh Thakur. The said properties are of benef icial ownership of the Appel lant. 80. The Appel lant is entitled to the said properties to ensure that the said properties come back to the Appel lant and has f i led Execution Appl ication for enforcement of the Consent Decree. However, the attachment made by the Enforcement Direc torate is coming in the way of the Appel lant enforcing the said Decree against Nilesh Thakur. 81. Therefore, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
