Allowed

FPA-PMLA-1012/MUM/2015 of Ace Card Reality Pvt. Ltd. v/s The Joint Director Directorate of Enforcement, Mumbai

ATFP17 Jan 2019FPA-PMLA-1012/MUM/2015

Case brief

AI extract

What is this about?

The Tribunal allowed appeals by Nilesh J. Thakur and associated companies challenging provisional attachment orders. It quashed attachments, ruling that funds from a legitimate contract with SPCL were not proceeds of crime, and subsequent ITAT orders confirmed the funds' lawful origin.

What did the court decide?

Allowed all appeals; set aside impugned orders; quashed provisional attachment orders against subject properties.

FPA-PMLA-1012/MUM/2015 of Ace Card Reality Pvt. Ltd. v/s The… — Money Laundering | ATFP (2019)

¶1

APPELLATE TRIBUNAL, PREVENTION OF MONEY LAUNDERING ACT AT NEW DELHI

¶2

Date of decision: 17^th January, 2019

¶3

(1) MP-PMLA-3028/MUM/2016(Misc) MP-PMLA-2044/MUM/2015 (Stay) FPA-PMLA-937/MUM/2015

¶4

Nilesh J. Thakur	…	Appellant
Versus
The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(2) MP-PMLA-3029/MUM/2016 (Misc) MP-PMLA-2045/MUM/2015 (Stay) FPA-PMLA-938/MUM/2015
Nilesh J. Thakur	…	Appellant
Versus
The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(3) MP-PMLA-3030/MUM/2016 (Misc) MP-PMLA-2046/MUM/2015 (Stay) FPA-PMLA-939/MUM/2015
Nilesh J. Thakur	…	Appellant
Versus
The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(4) MP-PMLA-3031/MUM/2016 (Misc) MP-PMLA-2047/MUM/2015 (Stay) FPA-PMLA-940/MUM/2015
Nilesh J. Thakur	…	Appellant
Versus
The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(5) MP-PMLA-3034/MUM/2016 (Misc) MP-PMLA-2050/MUM/2015 (Stay) FPA-PMLA-1001/MUM/2015
ACE Card Trading Pvt. Ltd.	…	Appellant
Versus
The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(6) MP-PMLA-3032/MUM/2016 (Misc) MP-PMLA-2048/MUM/2015 (Stay) FPA-PMLA-941/MUM/2015

¶5

FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 1 of 30

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Nilesh J. Thakur	…	Appellant
Versus
The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(7) MP-PMLA-3035/MUM/2016 (Misc) MP-PMLA-2051/MUM/2015 (Stay) FPA-PMLA-1002/MUM/2015
ACE Card HR Pvt. Ltd.	…	Appellant
Versus
The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(8) MP-PMLA-3036/MUM/2016 (Misc.) MP-PMLA-2052/MUM/2015 (Stay) FPA-PMLA-1003/MUM/2015
ACE Card Export Pvt. Ltd.	…	Appellant
Versus
The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(9) MP-PMLA-3037/MUM/2016 (Misc.) MP-PMLA-2053/MUM/2015 (Stay) FPA-PMLA-1004/MUM/2015
Dhan Share Trading Pvt. Ltd.	…	Appellant
Versus
The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(10) MP-PMLA-3038/MUM/2016 (Misc.) MP-PMLA-2054/MUM/2015 (Stay) FPA-PMLA-1005/MUM/2015
ACE Card InfrasolPvt. Ltd.	…	Appellant
Versus
The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(11) MP-PMLA-3039/MUM/2016 (Misc.) MP-PMLA-2055/MUM/2015 (Stay) FPA-PMLA-1006/MUM/2015
ACE Card Power Pvt. Ltd.	…	Appellant
Versus
The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(12) MP-PMLA-3040/MUM/2016 (Misc.) MP-PMLA-2056/MUM/2015 (Stay) FPA-PMLA-1007/MUM/2015
ACE Card Media Pvt. Ltd. Versus	…	Appellant

¶7

FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 2 of 30

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The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(13) MP-PMLA-3041/MUM/2016 (Misc.) MP-PMLA-2057/MUM/2015 (Stay) FPA-PMLA-1008/MUM/2015
ACE Card Construction Pvt. Ltd.	…	Appellant
Versus
The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(14) MP-PMLA-3042/MUM/2016 (Misc.) MP-PMLA-2058/MUM/2015 (Stay) FPA-PMLA-1009/MUM/2015
ACE Card Hotels & Resorts Pvt. Ltd. Versus	…	Appellant
The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(15) MP-PMLA-3043/MUM/2016 (Misc.) MP-PMLA-2059/MUM/2015 (Stay) FPA-PMLA-1010/MUM/2015
ACE Card AGRO Industries Pvt. Ltd.	…	Appellant
Versus
The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(16) MP-PMLA-3044/MUM/2016 (Misc.) MP-PMLA-2060/MUM/2015 (Stay) FPA-PMLA-1011/MUM/2015
ACE Card Trading Pvt. Ltd.	…	Appellant
Versus
The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(17) MP-PMLA-3045/MUM/2016 (Misc.) MP-PMLA-2061/MUM/2015 (Stay) FPA-PMLA-1012/MUM/2015
ACE Card Reality Pvt. Ltd.	…	Appellant
Versus
The Joint Director
Directorate of Enforcement, Mumbai	…	Respondent

¶9

FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 3 of 30

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(18) MP-PMLA-3033/MUM/2016 (Misc.) MP-PMLA-2049/MUM/2015 (Stay) FPA-PMLA-1000/MUM/2015 M/s ACE Card InfrasolPvt. Ltd. … Appellant Versus The Joint Director Directorate of Enforcement, Mumbai … Respondent (19) MP-PMLA-3048/MUM/2016 (Misc) MP-PMLA-2203/MUM/2015 (Stay) FPA-PMLA-1112/MUM/2015 M/s Ace Card InfrasolPvt. Ltd. … Appellant Versus The Joint Director Directorate of Enforcement, Mumbai … Respondent (20) MP-PMLA-3049/MUM/2016 (Misc) MP-PMLA-2204/MUM/2015 (Stay) FPA-PMLA-1113/MUM/2015 Nilesh J. Thakur … Appellant Versus The Joint Director Directorate of Enforcement, Mumbai … Respondent (21) MP-PMLA-3050/MUM/2016 (Misc.) MP-PMLA-2205/MUM/2015 (Stay) FPA-PMLA-1114/MUM/2015 M/s Ace Card Trading Pvt. Ltd … Appellant Versus The Joint Director Directorate of Enforcement, Mumbai … Respondent (22) MP-PMLA-3051/MUM/2016 Misc MP-PMLA-2206/MUM/2015 Stay FPA-PMLA-1115/MUM/2015 M/s Ace Card InfrasolPvt. Ltd. … Appellant Versus The Joint Director

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FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 4 of 30

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Directorate of Enforcement, Mumbai … Respondent

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(23) MP-PMLA-3052/MUM/2016 (Misc) MP-PMLA-2207/MUM/2015 (Stay) FPA-PMLA-1116/MUM/2015

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M/s Ace Card Trading Pvt. Ltd. … Appellant

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Versus

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The Joint Director Directorate of Enforcement, Mumbai … Respondent

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Advocates/Authorized Representatives who appeared

¶18

For the appellant	: Shri Rajshekhar Rao, Advocate
	Shri Arjun Krishnan, Advocate
	Shri Ankur Singh, Advocate and Ms. Gauri Puri, Advocatge
For the respondent	: Shri Neeraj Atri, Advocate for ED

¶19

CORAM JUSTICE MANMOHAN SINGH : CHAIRMAN

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JUDGEMENT FPA-PMLA-937-941, 1000-1012, 1112-1116/MUM/2015

¶21

The detailed separate judgement has been delivered in the ten appeals being no. 1104/2015 and 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.

¶22

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

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FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 5 of 30

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issues, he supported the case of SPCL. He has also narrated the facts as per his own.

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As per him, the facts are:-

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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.

¶27

b) On 16.07.2007, SPCL issued a detailed offer letter to the Appellant for purchase of around 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

¶28

c) The said offer was accepted by the Appellant, Nilesh J. Thakur by letter of acceptance dated 19.07.2007.Upon exchange of offer and acceptance, a legally binding and valid contract came to be formed between SPCL and the Nilesh J. Thakur.

¶29

d) Between 26.09.2008 and 21.07.2008, Nilesh J. Thakur received from SPCL, a sum of Rs. 87.5 Crore as a loan/advance for the purchase of lands as specified in the contract between the parties. These funds were received through normal banking channels, in the form of cheques/drafts drawn on Standard Chartered Bank and Deutsche Bank accounts of SPCL.

¶30

The 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.

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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.

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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.

¶34

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 were made by Nilesh J. Thakur either by himself or through his group entities. These investments fell into three broad categories:-

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(i) Purchase of immovable property, including land, built-up residential and commercial buildings, etc.

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(ii) Investment in fixed deposits in name of Nilesh J. Thakur or

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group entities.

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(iii) Movable property including bank balance and few vehicles.

¶40

h) 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.

¶41

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

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FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 7 of 30

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IPC on 7.2.2011.

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j) Charge Sheet No. 403/PW/2011 filed before the ACMM 37^th 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 Rs. 14.80 Crores being 10% of total amount of Rs. 148 Crore)

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k) SPCL filed Suit No. 2576 of 2011 before the Hon‟ble Bombay High Court against PRS Enterprises &Ors. Seeking inter alia , the following reliefs:

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i) Payment of a sum of Rs. 219,39,19,165/- along with interest @ 18% p.a. on the principal amount of Rs. 141,500,000 /-.

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ii) Declaration that there is a valid, enforceable agreement between the defendants and the Plaintiffs whereby the defendants are bound to handover and transfer the immovable properties and FDs, cars, monies standing to the credit of the bank accounts.

¶48

iii) Transfer of immovable properties in favour of the Plaintiff. Copy of plaint dated 06.09.2011 is filed in FPA-PMLA NO. 941 of 2015.

¶49

l) The parties entered into consent terms on 19.10.2011 in Suit No. 2576 of 2011, whereby Nilesh J. Thakur admitted his liability to return the amount loaned/advanced to him. The Bombay High Court has passed 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.

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m) FIR dated 14.3.2012 was registered, by the Anti-Corruption Bureau

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FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 8 of 30

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[“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.

¶53

n) Provisional Attachment Order (PAO) No. 3/2012 passed in Original Complaint (OC) No. 140/2012 on 17.04.2012.

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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.

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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 Appellant in PAO No. 3/2012 dated 17.04.2012:

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i) Shop No. 9, Shri Complex, B Wing, Borivali West, 300 Sq. Ft purchased in the name of Nilesh Thakur valued at Rs. 21 Lakhs (Agreement dated 20.05.2008); [ Subject matter of Consent Decree ]

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ii) Flat No. 1D/201, 2^nd Floor, NG Sun City, Kandivali East admeasuring 394.46 Sq. ft in the name of Nilesh Thakur valued at Rs. 39.54 Lakhs(Agreement dated 18.01.2008); [ Subject matter of Consent Decree ]

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iii) Hotel Shoreline, Darbar Road, Janjira admeasuring 700 Sq. Mts in the name of PRS Enterprises valued at Rs. 1.80 Crores (Agreement dated 01.11.2007);

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iv) Office of Aishwarya Properties at Vandana CHSH, Alibaug -670 Sq. ft in the name of Nilesh Thakur valued at Rs. 11 Lakhs (Agreement dated 21.05.2008);

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v) Land 0-49-2 at Village Dhokawade, Taluk, Dighodi, Distr. Alibaug with 2 houses No. 540 (area 741 Sqft) and No. 1663

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FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 9 of 30

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(area 500 Sqft) in the name of N.J. Thakur valued at Rs. 3.44 Crores (Agreement dated 19.03.2008);

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vi) Gala No. 1 & 2, Puja CHS, Alibaug admeasuring 662 Sqft in the name of N.J. Thakur value at Rs. 24 Lakhs (Agreement dated 11.09.2008)

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Following property of Ace Card Trading Pvt. Ltd. was attached:

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vii) Bungalow No. 62/65, Gorai, Borivili West, Mumbai, 103.70 sqMtrs valued at Rs. 74 Lakhs (Agreement dated 30.08.2012);

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TOTAL VALUE OF PROPERTIES- RS. 6,93,94,170/-

¶67

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. 1001/2015.

¶68

q) Provisional Attachment Order (PAO) No. 7/2014 passed in Original Complaint (OC) No. 169/2012 on 27.11.2012.

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r) Provisional Attachment Order (PAO) No. 2/2013 passed in Original Complaint (OC) No. 174/2013 on 24.01.2013.

¶70

s) In assessment proceedings under the Income Tax Act concerning SPCL, the Assessing Officer [“the ITO”] had passed Order dated 11.2.2013 wherein the ITO had expressed doubt about the nature of transactions relating to the payments made by SPCL to the Appellant, Nilesh J. Thakur/PRS Enterprises for the purpose of acquisition of land under the contract between the parties.

¶71

t) Impugned Order passed by the Respondent No. 1 on 05.04.2013 in OC No. 169/2012 thereby confirming the attachment of the following properties of the Appellant in PAO No. 7/2014 dated 27.11.2012:

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i) City Survey No. 73, Hissa No. 0.30.6, City Survey 1009, AlibagRs. 39 Lacs

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FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 10 of 30

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ii) Plot no. 191/17.1 opposite Koteshwari Temple, MurudjanjiraRs. 45.1 Lacs

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iii) Shop No. 9, Parmar Complex, Pali- Rs. 4.9 Lacs

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TOTAL VALUE OF PROPERTIES-Rs. 89,00,000/-

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Against the Impugned Order 05.04.2013, Nilesh Thakur has

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preferred FPA-PMLA No. 940/2015.

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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.

¶80

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:

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Immovable properties admeasuring 76.62 acres (30.64.6 hectares) in the following villages of Alibaug:

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a) 26.91.40 hectares in village Waghvira;

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b) 3.41.3 hectares in village Chikali;

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c) 0.31.9 hectares in village Hemnagar

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The Bank accounts from which the amount was debited for the purchase of the above lands forms part of the Consent Decree

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TOTAL VALUE OF PROPERTY- Rs. 19,19,25,000/-

¶87

PROCEEDS OF CRIME- Rs. 5,27,52,859 /-

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Against the Impugned Order 21.06.2013, Nilesh Thakur has preferred FPAPMLA NO. 938/2015.

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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

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FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 11 of 30

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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 Rs. 141.5 Crores advanced by SPCL to him, were the disproportionate assets of Nitish J. Thakur (brother of Nilesh J. Thakur).

¶92

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.

¶93

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:

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Immovable properties admeasuring 76.62 acres (30.64.6 hectares) in the following villages of Alibaug: a) 26.91.40 hectares in village Waghvira;

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b) 3.41.3 hectares in village Chikali;

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c) 0.31.9 hectares in village Hemnagar

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Total valued at Rs. 19,95,25,000/- out of which Rs. 5,27,52,859/already attached by POA 3/2011.

¶98

TOTAL IMMOVABLE- RS. 13,91,72,141/-

¶99

Movable Properties

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(Bank A/c with Balance as on 08.09.2014):

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KAPOL- 5330 (Rs. 2862.64/-) [Ace Card HR]

¶102

KAPOL- 5326 (Rs. 166.76/-) [Ace Card Export]

¶103

KAPOL- 233 (Rs. 46,20,179.23/-) [Ace Card Export]

¶104

KAPOL- 5392 (Rs. 98,71,770.97/-) [Dhan Shree Trading]

¶105

GBCB-10216009856(Rs.18,64,100.75/-) [Ace Card Infr.]

¶106

GBCB-FD-30201322722(Rs.1,32,90,421/-) [Ace C. Infr]

¶107

KAPOL- 5296 (Rs. 757.88/-) [Ace Card Infrasol]

¶108

UBI- 441601010036441 (Rs. 13,219.5/-) [Ace C. Infr]

¶109

UBI- 546410110050207 (Rs. 1,00,000/-) [Ace C. Infr]

¶110

KAPOL- 5328 (Rs. 3,32,393.07/-) [Ace Card Power]

¶111

KAPOL- 230 (Rs. 15,39,810.23/-) [Ace Card Power]

¶112

KAPOL- 5329 (Rs. 182.76/-) [Ace Card Media]

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FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 12 of 30

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KAPOL- 231 (Rs. 15,39,801.23/-) [Ace Card Media]

¶115

KAPOL- 5332 (Rs. 50,31,732.65/-) [Ace Card Const.]

¶116

KAPOL- 211 (Rs. 25,02,710.87/-) [Ace Card Const.]

¶117

KAPOL- 5331 (Rs. 182.76/-) [Ace Card Hotels]

¶118

KAPOL- 232 (Rs. 15,39,810.3/-) [Ace Card Hotels]

¶119

KAPOL- 5327 (Rs. 7859.57/-) [Ace Card Agro Ind.]

¶120

HSBC-3014412001(Rs.3,18,519.66/-) [Ace C. Agro Ind.]

¶121

KAPOL- 5295 (Rs. 36,90,134.58/-) [Ace Card Trading]

¶122

KAPOL- 5333 (Rs. 675.76/-) [Ace Card Reality]

¶123

KAPOL- 212 (Rs. 76,99,480.87/-) [Ace Card Reality]

¶124

TOTAL VALUE OF PROPERTIES- Rs. 53,57,01,736/-

¶125

Against the Impugned Order 01.01.2015 the following appeals have been

¶126

preferred:

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1. FPA-PMLA NO. 941/2015 by Nilesh Thakur;

¶128

2. FPA-PMLA NO. 1002/2015 by Ace Card HR;

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3. FPA-PMLA NO. 1003/2015 by Ace Card Export;

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4. FPA-PMLA NO. 1004/2015 by Dhan Shree trading;

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5. FPA-PMLA NO. 1005/2015 by Ace Card Infrasol;

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6. FPA-PMLA NO. 1006/2015 by Ace Card Power;

¶133

7. FPA-PMLA NO. 1007/2015 by Ace Card Media;

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8. FPA-PMLA NO. 1008/2015 by Ace Card Construction

¶135

9. FPA-PMLA NO. 1009/2015 by Ace Card Hotels;

¶136

10. FPA-PMLA NO. 1010/2015 by Ace Card Agro-Indust;

¶137

11. FPA-PMLA NO. 1011/2015 by Ace Card Trading;

¶138

12. FPA-PMLA NO. 1012/2015 by Ace Card Reality.

¶139

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. 495/2015 on 31.03.2015.

¶140

z) The Impugned Order was passed by the Respondent No. 1 on 11.4.2015 in OC No. 408/2014 thereby confirming the attachment of the following properties of the Appellant in PAO No. 23/2014 dated 31.12.2014:

¶141

i) Commercial Shop No. 4, Shrutisang Co. Society, Alibag- Rs. 1.5 Lakhs

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FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 13 of 30

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ii) Commercial Shop No. 6, Shrutisang Co. Society, Alibag- Rs. 6.78 Lakhs

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iii) Commercial Shop No. 7, Shrutisang Co. Society, AlibagRs. 6.74 Lakhs

¶145

iv)Commercial Shop No. 8, Shrutisang Co. Society, AlibagRs. 6.74 lakhs

¶146

v) Commercial Shop No. 9, Shrutisang Co. Society, Alibag- Rs. 6.74 lakhs

¶147

vi) Room Residential Plot next to Building No. 10, OLD MH8

¶148

Colony, Borivali West, Mumbai- 91 (11.20 Sq. ft)

¶149

vii) Room Residential Plot next to Building No. 10, OLD MH8 Colony, Borivali West, Mumbai- 91 (150 Sq. ft)

¶150

viii) Room Residential Plot next to Building No. 10, OLD MH8 Colony, Borivali West, Mumbai- 91 (10.40. ft)

¶151

Following property of Ace Card Infrasol Pvt. Ltd. was attached:

¶152

ix) Flat No. 202, 2^nd Floor Sapphire, Ram Mandir Road, MG Road, Cross Road, Vile Parle (E), Mumbai ( Subject matter of Consent Decree)

¶153

TOTAL VALUE OF PROPERTIES- Rs. 1,82,16, 616/-

¶154

Against the Impugned Order 01.04.2015, Nilesh Thakur has preferred FPA-PMLA NO. 939/2015 and Ace Card Infrasol Pvt. Ltd. has preferred FPA-PMLA NO. 1000/2015.

¶155

z.a) The Income Tax Appellate Tribunal (ITAT) on 10.04.2015 upheld the findings of the CIT (Appeals) in SPCL‟s income tax assessment, and held that the transactions between SPCL and the Appellant were advances for purchase of land, and for legitimate business purpose.

¶156

z.b) The impugned order dated 05.04.2013, 21.06.2013, 31.08.2015, 01.04.2015 and 01.01.2015 was challenged by Nilesh J.

¶157

FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 14 of 30

¶158

Thakur and his group concerns before this Hon‟ble Tribunal by way of the present batch of appeals as under:

¶159

Impugned Order	POA No.	Date of POA	OC No.	Appeals filed
31.08.2012	3/2012	17.04.2012	140/2012	i. FPA-PMLA 937/2015 ii. FPA-PMLA 1001/2015
21.06.2013	2/2013	24.01.2013	174/2013	i. FPA-PMLA 938/2015
01.04.2015	23/2014	31.12.2014	408/2015	i. FPA-PMLA 939/2015 ii. FPA-PMLA 1000/2015
05.04.2013	7/2014	27.11.2012	169/2012	i. FPA-PMLA 940/2015
01.01.2015	19/2014	30.09.2014	370/2014	i. FPA-PMLA 941/2015 ii. FPA-PMLA 1002- 12/2015

¶160

z.c) The Impugned Order passed by the Respondent No. 1 on 27.08.2015 OC No. 465/2015, thereby confirming the attachment of following properties of the Appellant in

¶161

PAO No. 13/2015 dated 26.03.2015:

¶162

i) Flat No. 3,‟H‟ Wing, Flower Valley, Mahad: Rs. 5,00,000/-

¶163

ii) Flat No. 1-C Block C Viceroy Court CHSL. Thakur Village, Kandivali (East), Mumbai: Rs. 61,25,100/- [ Subject matter of Consent Decree ]

¶164

Following property of Ace Card Trading Pvt. Ltd. was attached:

¶165

iii) Flat 1208, B Wing, Borivali Dwarkanath CHS (Vijay Nagar), Borivali, Mumbai: Rs. 47,37,600

¶166

FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 15 of 30

¶167

Following property of Ace Card Infrasol Pvt. Ltd. was attached:

¶168

iv) Flat No. 53,‟B‟ Wing, Swapnaship, situated at final Plot No. 52, Mahant Road, Vile Parle(East), Mumbai: Rs.2,63,95,100/-

¶169

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 ]

¶170

TOTAL VALUE OF PROPERTIES- Rs. 5,01,52,900/-

¶171

Against the Impugned Order 27.08.2015, Nilesh Thakur has preferred FPAPMLA 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.

¶172

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.

¶173

Following property of Ace Card Infasol Pvt. Ltd. was attached:

¶174

 LAND ROVER with vehicle Registration No. MH-02-BR-3900; Vehicle‟s Owner name Santosh Bhimrao Limon: Rs. 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))

¶175

Following property of Ace Card Trading Pvt. Ltd. was attached:

¶176

AUDI Q with vehicle Registration No. MH-02-CH-777: Rs. 57,00,000/-.

¶177

Honda CRV with vehicle Registration No. MH-092-BR-3993:Rs.

¶178

26,00,000/-.

¶179

TOTAL VALUE OF PROPERTIES - Rs. 1,64,93,407/-

¶180

The impugned order dated 27.08.2015 was challenged by Nilesh J. Thakur

¶181

FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 16 of 30

¶182

and his group concerns before this Tribunal by way of the present batch of appeals in October, 2015, as under:

¶183

Impugned Order	POA No.	Date of POA	OC No.	Appeals filed
27.08.2015	13/2015	26.03.2015	465/2015	i. FPA-PMLA1113- 1115/2015
27.08.2015	16/2015	31.03.2015	495/2015	ii. FPA- PMLA1112/2015 iii. FPA-PMLA 1116/2015

¶184

Delay in filing the appeals before this Tribunal were condoned in the present batch of appeals on 8.1.2016 – 17.2.2016.

¶185

This Tribunal has granted status quo with respect to the properties attached by the Respondent No. 1 in the present batch of appeals on 24.11.2016.

¶186

Case of the Nilesh J. Thakur

¶187

a) The Attachment of the properties which are the subject matter of the present proceedings („subject properties‟) is wholly illegal and has been erroneously confirmed by the Adjudicating Authority which has not only failed to appreciate that the fundamental requirements of S.5 of the Prevention of Money Laundering Act, 2002 have not been satisfied in the present case, but also failed to appreciate that the Appellant, inter alia , had adequately demonstrated, with supporting evidence, “ the sources of income, earning or assets, out of which or by means of which he has acquired the property attached… ”.

¶188

b) The Adjudicating Authority was duty bound to declare that the attachment was entirely illegal and, to set aside the same. Instead, a perusal of the Impugned Order, would reveal that the impugned Order has, arbitrarily and without application of

¶189

FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 17 of 30

¶190

mind, confirmed the illegal attachment in a most mechanical fashion warranting interference by this Hon‟ble Tribunal.

¶191

c) The Adjudicating Authority 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. 68H of NDPS Act which is substantially in parimateria with S. 5 r/w S. 8 of PMLA).

¶192

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 ” .

¶193

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 in view of the orders of the Income Tax Appellate Tribunal

¶194

FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 18 of 30

¶195

that have attained finality.

¶196

It is also pertinent to mention that on most of the issues, Nilesh J. Thakur the case of SPCL was supported him. He admits to receive the clean and untainted amount from SPCL. He also admits that he has also invested part of amount for his personal gain in other properties without informing SPCL and he has paid 61.42 crores to Kalyani group the appellants who have filed the three appeals for the purpose of investment from the amount received from SPCL. No tainted amount was invested in any manner of ones property.

¶197

It is not denied by the counsel for the respondent no. 1 that there is no material to show that the source of the funds were connected to any criminal activity, nor there is any evidence available with the respondent no. 1 in order to show that the appellant has any connection with Nilesh or at the time of giving the funds to Nilesh, SPCL were aware that the Nilesh would be able to get any benefit from his brother who was a Government servant directly or indirectly..

¶198

It is not denied by the respondent no. 1 and Nilesh J. Thakur that the properties that are the subject matter of attachment have admittedly been purchased out of sum of Rs. 141.5 Crores received by the Appellant, Nilesh J. Thakur and his group concerns. The funds were transferred, through normal banking channels from legitimate accounts of SPCL, in furtherance of a written contract which is evidenced by the exchange of offer letter dated 16.07.2007 and acceptance letter dated 19.07.2007.

¶199

It is well settled that a contract can be formed by exchange of correspondence. In fact, even an oral exchange of promises is enough to form a contract. Section 10 of the Contract Act defines what agreements are contracts as under:

¶200

“ All agreements are contracts if they are made by the free FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 19 of 30

¶201

consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.

¶202

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 .”

¶203

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.

¶204

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.

¶205

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 other means. On the contrary, the monies have been transferred in an open and transparent manner as under:

¶206

I. To PRS Enterprises

¶207

FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 20 of 30

¶208

CHEQUE NO.	DATE	AMOUNT	DRAWN ON BANK/BRANCH
346049	26.09.2007	Rs.2 crores	Standard Chartered/Mumbai Metro Main Branch
346094	26.09.2007	Rs.3 crores	Standard Chartered/Mumbai Metro Main Branch
346193	01.10.2007	Rs.3 crores	Standard Chartered/Mumbai Metro Main Branch
346263	31.10.2007	Rs.5 crores	Standard Chartered/Mumbai Metro Main Branch
279998	29.11.2007	Rs.4.5 crores	Standard Chartered/Mumbai Metro Main Branch
005001	26.12.2007	Rs.9.5	Deutsche
		crores	Bank/DN Road, Fort
280050	10.01.2008	Rs.6.5 crores	Standard Chartered/Mumbai Metro Main Branch
280174	10.03.2008	Rs.10 crores	Standard Chartered/Mumbai Metro Main Branch
117653	07.04.2008	Rs.16.5	Standard

¶209

FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 21 of 30

¶210

		crores	Chartered/Mumbai Metro Main Branch
117801	09.06.2008	Rs.9.5 crores	Standard Chartered/Mumbai Metro Main Branch
117892	14.07.2008	Rs.5 crores	Standard Chartered/Mumbai Metro Main Branch
44743	21.07.2008	Rs.10 crores	Deutsche Bank/ Kodak House
	Total	Rs.84.50 Crores =========

¶211

II. To Ace Card Infrasol Pvt. Ltd (AIPL)

¶212

CHEQUE	DATE	AMOUNT	DRAWN ON
NO.			BANK/BRANCH
4744	04.11.2008	Rs.10	Deutsche Bank/
		crores	Kodak House
			Branch
659232	22.12.2008	Rs.2	Standard
		crores	Chartered/Mumbai
			Metro Main Branch
44749	23.01.2009	Rs.5	Deutsche

¶213

FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 22 of 30

¶214

		crores	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	Standard
		crores	Chartered/MG Road Branch
	Total	Rs.57 Crores =====

¶215

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.

¶216

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.

¶217

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 FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 23 of 30

¶218

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.

¶219

From the entire material available on record, it appears to this Tribunal that whatever property Shri Nilesh J. Thakur has purchased on behalf of SPCL or invested money for himself and his associate group of company, the said money is invested by Nilesh Thakur which is received from SPCL. There is no direct or indirect evidence available on the record that SPCL has ever taken the favour of the position of Nitish J. Thakur. No doubt, it appears that there is inter-se dispute between the two brothers. Nitish J. Thakur has been making statements against the SPCL also but from the record, it appears that it was merely the allegation raised by Mr. Nitish J. 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.

¶220

As far as the next argument of Mr. Atri with regard to the orders

¶221

FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 24 of 30

¶222

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.

¶223

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 Rs 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.

¶224

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 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.

¶225

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.

¶226

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, FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 25 of 30

¶227

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.

¶228

The PAO‟s issued by Respondent No. 1 are based entirely on the provisions of the Charge Sheet filed by the Anti Corruption Bureau. Raigad [“ACB”] which Charge Sheet in turn is based on the findings recorded by the Assessing Officer [ITO] under the provisions of the Income Tax Act, by way of the Assessing Officer‟s Orders dated 30.12.2010 [A.Y. 2008-09] and 28.12.2011 [A.Y. 2009-10], whereby, inter-alia, Appellant‟s statement and assertion that the amounts received by the Appellant from Shapoorji Pallonji & Co. Ltd. (“SPCL”) were towards land aggregation under agreement recorded in letters dated 16.7.2007 and 19.7.2007 [“the subject agreement”], was disbelieved and / or rejected and the Assessing Officer proceeded to make additions of these amounts to the Appellant‟s income and taxed the same invoking the provisions of Section 56 (2)(vi) of the Income Tax Act.

¶229

Against the Orders of the Assessing Officer dated 30.12.2010 and 28.12.2011 referred to above, the Appellant filed First Appeals before the Commissioner of Income Tax [Appeals] (“CIT Appeals”) who had confirmed the Orders of the Assessing Officer by way of Orders dated 31.01.2011 and 21.07.2011. Aggrieved by the same, the Appellant had filed Second Appeals with the Income Tax Appellate Tribunal [“ITAT”] being Appeal Nos. I.T.A. No. 3738/Mum/2013 [A.Y. 2008-09] and I.T.A. No. 3739/Mum/2013 [A.Y. 2009-10] which Appeals 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

¶230

FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 26 of 30

¶231

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.

¶232

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 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.

¶233

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.

¶234

“ 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.”

¶235

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

¶236

FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 27 of 30

¶237

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 that connection, the ITAT has also noted the Consent Decree dated 19.10.2011 passed by the Bombay High Court. Certified/True Copy of Order dated 17.11.2017 passed by the Hon‟ble Income Tax Appellate Tribunal, Mumbai Bench, Mumbai is annexed as Annexure A-10 along with the application which is allowed as these are subsequent events in order to decide the real disputes between the parties.

¶238

The said Order and Judgment dated 17.11.2017 of the ITAT has been rendered in November 2017 during the pendency of the present Appeal along with other Appeals before this Hon‟ble Tribunal. By reason of the findings in the ITAT‟s Order dated 17.11.2017 [which reiterates the findings in the earlier ITAT Bench‟s Order and Judgment dated 10.4.2015], the entire foundation of the ACB‟s Charge Sheet and consequently the PAO‟s issued by Respondent No. 1 has fallen and/or is demolished. It is clear from a perusal of the ITAT‟s Order and Judgment that the transactions under the subject agreement for land aggregation is legal, valid and legitimately earned monies of SPCL were advanced to the Appellant and his group companies for land aggregation and the monies received by the Appellant thereunder cannot by any stretch of imagination be termed as proceeds of crime.

¶239

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

¶240

FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 28 of 30

¶241

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.

¶242

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 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.

¶243

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.

¶244

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.

¶245

The following admitted facts and material already placed on record

¶246

FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 29 of 30

¶247

(including ACB Chargesheet dt. 14.03.2015) would show that from October 2005 onwards, Nitish J. Thakur was absent without leave from his official duties. He never resumed official duty after this date. On 12.11.2008 he was officially given leave without pay from his duties by the Government of Maharashtra. From 07.02.2011, Nitish J. Thakur was placed under suspension by the Government of Maharashtra.Nitish J. Thakur was dismissed from government service on 11.07.2012.

¶248

In the light of above, it is clear that 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 any nature is necessary on the part of ED to frustrate the decree.

¶249

In view of the above submissions, I allow all the appeals. The impugned orders passed by the adjudicating authority are set aside. This Tribunal also quash the orders of provisional attachments as against the subject properties. All MPs are disposed of.

¶250

( Justice Manmohan Singh) Chairman

¶251

New Delhi, 17^th January, 2019

¶252

„skb‟

¶253

FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 30 of 30

¶254

FPA-PMLA-937 to 941, 1000 to 1012, 1112 to 1116-2016 Page 31 of 30

FPA-PMLA-1012/MUM/2015 of Ace Card Reality Pvt. Ltd. v/s The Joint Director Directorate of Enforcement, Mumbai

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FPA-PMLA-1012/MUM/2015 of Ace Card Reality Pvt. Ltd. v/s The Joint Director Directorate of Enforcement, Mumbai

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