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2019 (9) TMI 426

..... are that they were not a party before the adjudicating authority though they are the owner of portion of the property in question - HELD THAT:- The offences are of the year 2012- 13. Whereas the property in question was acquired in the year 2011 by Smt. Seema Garg. It is the contention of the respondent that the property in question has been attached as value thereof. There is no allegation that the property in question has been acquired out of proceeds of crime. When the case was registered the appellants and others have already purchased the property in question and in actual physical possession of the same. There is no rebuttal from the side of the respondent in this regard - The property in question was attached without affording opportunities of the appellants. The appellants are bona fide purchasers. In the present case, the case of the appellants are in a better footing as the property in question has been acquired prior to the alleged commission of offences by the husband of Smt. Seema Garg and there is no allegation that the proceeds of crime has been used in any manner to acquire the property in question - There is nothing on record to show that any prosecution complaint .....

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..... 177,420,465,467,468 and 471 of Indian Penal Code, 1860 against Shri Raman Kumar Garg s/o Shri Vinod Kumar Garg r/o 66-A, Aggar Nagar, Ludhiana, the proprietor of M/s Jaldhara Exports, Ludhiana. As per the said Challan, Shri Raman Kumar Garg, s/o Shri Vinod Kumar Garg had obtained VAT refund of ₹ 1,56,76,190/- on the basis of forged and fabricated documents from Excise and Taxation Department Ludhiana. After depositing the said amount in the account of M/s Jaldhara Exports maintained with State Bank of India, Mundian Kalan Branch, Ludhiana, it was then transferred through RTGS in the Accounts of his Aunt, Smt. Sangeeta Garg w/o Jagmohan Garg, Umesh Kumar s/o Jagmohan Garg, Mother, Smt. Seema Garg w/o Vinod Garg and Saiyarh Garg w/o Raman Kumar Garg in their different accounts maintained with DBC Bank, Feroze Gandhi Market Branch, Ludhiana. (d) That the offences punishable under Section 420,467 and 471 of I.P.C. ,1860 registered under FIR No. 126 dated 26.07.2013, as committed by above mentioned accused persons are predicate offence under PMLA, 2002, accordingly an Enforcement Case Information Report (ECIR) bearing no. ECIR/JLZO/06/2013 dated 14.08.2013 was registered by Jaland .....

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..... al physical possession after paying the full consideration and since then he is in the actual physical possession of the same. (d) It is stated by the appellants that the property in question i.e. House no. B-19-306 measuring 405 sq. yards situated at said address was pledged with Bank of India by Smt. Seema Garg. The appellants and other purchaser had paid the sale consideration in advance to enable Smt. Seema Garg to deposit the amount with the Bank to clear her liability against the said property. The bank had issued NOC dated 26.04.2013 and after the said NOC the appellants and others had purchased the same and got it registered on 03.05.2013. (e) That the said property on the day of confirmation of the O.C. did not stand in the name of Smt. Seema Garg and this fact was well within the knowledge of Smt. Seema Garg who had intentionally and deliberately suppressed this material fact before the authority and the authority and the department did not follow due diligence and in fact were negligent as they did not even care to investigate to ascertain the true and correct facts. (f) That is settled law, that it is not the property, but the sale consideration which is liable to the a .....

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..... and the concerned persons have paid the requisite stamp duty. This issue has been elaborately dealt with by the Hon ble High Court of Delhi in Pace Developers and Promoters Pvt. Ltd. vs. Govt. of NCT, wherein the Hon ble High Court has held that the observations as made by the Hon ble Supreme Court in Suraj Lamp s case have been interpreted wrongly, as a conveyance can be registered by taking recourse to a GPA, as long as the transaction is genuine and the same shall be registered by the Registrar/Sub Registrar. (j) That the appellants are a bonafide purchasers and the sale consideration paid is earned thorough legal means as the same is paid through the bank. That the appellants are not accused of being involved in any criminal activities neither they are the benamidar of Smt. Seema Garg. That the respondent have never stated that the appellants were or are in connivance with Mrs Seema Garg, the respondent has further failed to establish any live link or nexus between the appellants and Smt. Seema Garg, there have been no inter connected transactions of any kind between the appellants and Smt. Seems Garg other than the sale deed in question. The respondent has failed to prove that .....

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..... y owned by Smt. Seema Garg, hence same was attached vide PAO 04/2016 dated 09.05.2016. 5. Analysis and discussion (a) We have gone through the relevant papers including the translated copies of the registered power of attorney, sale deeds, copies of the bank statements, no objection certificate dated 26.04.2013 issued by Bank of India, Bharat Nagar Chowk, Ludhiana, translated copies of revenue records and reply filed by the respondent. (b) It is not disputed that the appellants were not made a party before the adjudicating authority even though the appellants have interest over the property in question. (c) It is also not disputed that Smt. Seema Garg purchased the property in the year 2011 and the same was mortgaged with the Bank of India. (d) The respondent does not dispute the fact that the Smt. Seema Garg executed power of attorney in favour of Mr. Vikas Jain who executed the sale deeds in favour of the appellants and another on 03.05.2013. It is reveled from the copies of documents that the Vendees of the entire property in question repaid the loan amount borrowed by Smt. Seema Garg from Bank of India and got the property in question released from the bank s mortgage before th .....

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..... case, the case of the appellants are in a better footing as the property in question has been acquired prior to the alleged commission of offences by the husband of Smt. Seema Garg and there is no allegation that the proceeds of crime has been used in any manner to acquire the property in question. (l) There is nothing on record to show that any prosecution complaint with respect to property in question has been filed. 6. Conclusion We are considering the fact concerning the property purchased by the appellants. There is no point in remanding the matter in view of the reasons stated above and in the light of documents placed before us. We have considered the materials on records as stated above and of the considered view that the property in question purchased by the appellants are not in any way connected with proceeds of crime in the hands of the appellants nor the said property was acquired out of proceeds of crime by Smt. Seema Garg in the year 2011, hence not liable to be attached. In view of the above the provisional attachment order coupled with order dated 20.10.2016 of the adjudicating authority to the extent of property in question purchased by the appellants is set asid .....

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