Allowed

FPA-PMLA-1105/MUM/2015 of Shapoorji Pallonji & Co. Pvt. Ltd. v/s The Joint Director Directorate of Enforcement, Mumbai

ATFP17 Jan 2019FPA-PMLA-1105/MUM/2015

Case brief

AI extract

What is this about?

The Appellate Tribunal allowed appeals filed by Shapoorji Pallonji & Co. Pvt. Ltd., setting aside orders that attached properties. The Tribunal held funds were legitimate proceeds from business activities and not proceeds of crime, ruling against the Enforcement Directorate.

What did the court decide?

Provisional Attachment Orders quashed; attached properties released; amounts detained by the Enforcement Directorate refunded to the appellant with interest.

FPA-PMLA-1105/MUM/2015 of Shapoorji Pallonji & Co. Pvt. Ltd. v/s… — Money Laundering | ATFP (2019)

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APPELLATE TRIBUNAL, PREVENTION OF MONEY LAUNDERING ACT AT NEW DELHI

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Date of decision: 17^th January, 2019

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(1) MP-PMLA-3081/MUM/2017 (Misc) MP-PMLA-2639/MUM/2016 (Stay) FPA-PMLA-1407/MUM/2016

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Shapoorji Pallonji & Co. Pvt. Ltd.

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Appellant

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Versus

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1. The Deputy Director Directorate of Enforcement, Mumbai	…	Respondent no.1
2. Nitish J. Thakur	…	Respondent no. 2.
3. Nilesh J. Thakur	…	Respondent no. 3
4. Mrs. Minal Nitish ThakuR	… Resp	ondent no. 4
5. Smt. Chayya J. Thakur	…	Respondent no. 5
6. M/s. PRS Enterprises	…	Respondent no. 6
7. M/s. PRS Developers	…	Respondent no. 7
8. M/s. Aishwarya Investments	…	Respondent no. 8
9. M/s. Acc Card InfrasolPvt. Ltd.	…	Respondent no. 9
10. M/s. Shoreline Exports	…	Respondent no. 10
11. Acc Card Trading Pvt. Ltd.	…	Respondent no. 11
12. Acc Card Agro Industries Pvt Ltd.	…	Respondent no. 12
13. Acc Card Power Pvt. Ltd.	…	Respondent no. 13
14. Acc Card Media Pvt. Ltd.	…	Respondent no. 14
15. Acc Card H.R. Pvt. Ltd.	… Resp	ondent no. 15
16. Acc Card Hotels & Resorts Pvt. Ltd	…	Respondent no. 16
17. Acc Card Construction Pvt. Ltd.	…	Respondent no. 17
18. Acc Card Reality Pvt. Ltd.	…	Respondent no. 18
19. Dhan Share Trading Pvt. Ltd.	… Resp	ondent no. 19
20. Thakur Family Trust	…	Respondent no. 20
21. Ace Card Reality Pvt. Ltd.	…	Respondent no. 21
22. Ace Card Power Pvt. Ltd.	…	Respondent no. 22

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FPA-PMLA-1104-1105, 1406-1410, 1479/MUM/2016, FPA-PMLA-1211 & 1491/MUM/2016 Page 1 of 60

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	23. Ace Card Media Pvt. Ltd	…	Respondent no. 23
	24. Ace Card Exports Pvt. Ltd.	…	Respondent no. 24
	25. M/s. Siddhivinayak Enterprises	…	Respondent no. 25
(2)	MP-PMLA-3046/MUM/2016 (Misc.) MP-PMLA-2344/MUM/2015 (Stay) FPA-PMLA-1104/MUM/2015
	Shapoorji Pallonji & Co. Pvt. Ltd.	…	Appellant
	Versus
	The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(3)	MP-PMLA-3047/MUM/2016 (Misc.) MP-PMLA-2345/MUM/2015 (Stay) FPA-PMLA-1105/MUM/2015
	Shapoorji Pallonji & Co. Pvt. Ltd.	…	Appellant
	Versus
	The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(4)	MP-PMLA-3080/MUM/2017 (Misc) MP-PMLA-2638/MUM/2016 (Stay) FPA-PMLA-1406/MUM/2016
	Shapoorji Pallonji & Co. Pvt. Ltd.	…	Appellant
	Versus
	The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(5)	MP-PMLA-3082/MUM/2017 (Misc) MP-PMLA-2640/MUM/2016 (Stay) FPA-PMLA-1408/MUM/2016
	Shapoorji Pallonji & Co. Pvt. Ltd.	…	Appellant
	Versus
	The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(6)	MP-PMLA-3083/MUM/2017 (Misc) MP-PMLA-2641/MUM/2016 (Stay) FPA-PMLA-1409/MUM/2016

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FPA-PMLA-1104-1105, 1406-1410, 1479/MUM/2016, FPA-PMLA-1211 & 1491/MUM/2016 Page 2 of 60

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Shapoorji Pallonji & Co. Pvt. Ltd.	…	Appellant
Versus
The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(7) MP-PMLA-3084/MUM/2017 (Misc) MP-PMLA-2642/MUM/2016 (Stay) FPA-PMLA-1410/MUM/2016
Shapoorji Pallonji & Co. Pvt. Ltd.	…	Appellant
Versus
The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(8) MP-PMLA-3085/MUM/2017 (Misc) FPA-PMLA-1479/MUM/2016
Shapoorji Pallonji & Co. Pvt. Ltd.	…	Appellant
Versus
The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(9) MP-PMLA-3079/MUM/2017 (Misc) FPA-PMLA-1211/MUM/2016
Shapoorji Pallonji & Co. Pvt. Ltd.	…	Appellant
Versus
The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
(10) MP-PMLA-2813/MUM/2016(Stay) FPA-PMLA-1491/MUM/2016
SRB Developers	…	Appellant
Versus
The Joint Director Directorate of Enforcement, Mumbai	…	Respondent
Advocates/Authorized Representatives who appeared For the Appellant (Shapoorji Pallonji & Co. Pvt. Ltd.) : Shri Gaurav	Agar	wal, Advocate

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For the Appellant (SRB Developers)	:	Shri Gurmehar S. Sistani, Advocate
For the Respondent	:	Mr. Neeraj Atri, Advocate
For the Respondent No. 5	:	Mr. Rahul Narayan, Advocate Mr. Shashwat Goel, Advocate

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CORAM

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JUSTICE MANMOHAN SINGH : CHAIRMAN

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JUDGEMENT

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FPA-PMLA-1104-1105, 1406-1410, 1479/MUM/2016, FPA-PMLA-1211 & 1491/MUM/2016

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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.

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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 Prevention of Corruption Act, 1988.

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Respondent No. 3 (Nilesh J. Thakur) is the Promoter / Director of the Firms / Companies which are arrayed to the Appeal bearing No. FPA-PMLA 1407 of 2016 as Respondent Nos. 6 to 25 above.

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The array of parties of FPA-PMLA No. 1407 of 2016 is shown above Includes all the Firms / Companies / entities comprising the Nilesh Thakur Group mentioned hereinafter of which Respondent No. 3 is the Promoter/ Director.

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The Annexures and page numbers of Annexures and Exhibits who would be referred in the later part of my order are referred to the Annexures and Exhibits of

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FPA-PMLA No. 1104 of 2015 (hereinafter for convenience sake referred to as “the 1104 Appeal”) and reference to the Annexures and page nos. at serial Nos. 23 to 27 below is of Appeal No. FPA-PMLA 1407 of 2016 the title whereof has been reproduced above.

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The brief facts as per appellant in appeal no. 1104/2016 and 1107/2016

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are:-

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a) The Appellant Company [hereinafter referred to as “SPCL”], was incorporated on 23.1.1943 under the Companies Act 1913.

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b) SPCL is a part of the well known Shapoorji Pallonji Group of Companies which is a well known and reputed corporate group of India.

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c) One of the specific objects of SPCL is to purchase, for investment or resale and to trade in land and to do various activities in relation to land.

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d) SPCL is a profit making Company and its turnover and profits have been increasing every year. For F.Y. 2008-09, SPCL‟s turnover was Rs. 3197.10 Crores, the Profit Before Tax was Rs. 183 Crores and Tax paid was Rs. 75 Crores. All the receipts, revenue / income of SPCL are purely from legitimate sources. The Annual Accounts of SPCL for F.Y. 2006-2007, 2007-08, 2008-09, 2009-10 and 2010-11 are filed in the above appeal.

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e) SPCL and Respondent No. 3 [Nilesh Thakur] entered into an agreement which is recorded in SPCL‟s letter dated 16.7.2007 addressed to Respondent No. 6 [M/s. PRS Enterprises] which is a proprietary concern of Nilesh Thakur. By the said letter dated 16.7.2007, SPCL awarded to Nilesh Thakur/ M/s. PRS Enterprises the task of acquisition of 900 acres of land at the maximum price of Rs. 30 lacs per acre within a period not exceeding five years.

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f) By his letter dated 19.07.2007, Respondent No. 3 duly accepted the agreement recorded in SPCL‟s letter dated 16.07.2007 mentioned above. Thus the letters dated 16.7.2007 and 19.7.2007 together constitute the agreement / contract between SPCL and Respondent No. 3 and is

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hereinafter called “the subject Agreement”. The said letters dated 16.7.2007 and 19.7.2007 are filed in the appeal.

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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.

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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”)

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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 by SPCL on Standard Chartered Bank and Deutsche Bank.The details of the payments made by SPCL to AIPL have been mentioned in paragraph 3.10 of the above Appeal. The same is also reflected in the Bank Statements of the Appellant‟s Bank Accounts.

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j) The payments of Rs. 57 Crores as aforesaid were deposited into the Bank Account of AIPL (Respondent No. 9) in its Bank Account with the GBCB.

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k) The aforesaid monies paid by SPCL to M/s. PRS Enterprises [Proprietor Nilesh Thakur] (Rs. 84.50 Crores) and to AIPL [Rs. 57 Crores] were paid for the specific purpose of purchase of properties for SPCL, under the subject Agreement. These monies which had been paid as aforesaid had been earned by SPCL from legitimate business activities.

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l) All the payments made by the Appellant to M/s. PRS Enterprises and to AIPL have been duly reflected in the Annual Accounts of the Appellant [which have been duly audited and filed before the Registrar of Companies]Under the Sub Head “Loan and Advances” appearing under the Head of Current Assets, Loans and Advances. The Appellants‟ Annual Accounts for F.Y. 2006-07, 2008-09, 2009-10 and 2010-11 are produced along with the 1104 Appeal and referred to above.

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m) In the year 2008-2010, Respondent No. 3 [Nilesh Thakur] used and utilized the aforesaid sum of Rs. 141.50 Crores:

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(i) For purchase of various immovable properties including landed propertiesat Panvel, Raigad District and also ownership Flats at Mumbai,

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(ii)Some amounts were used for purchase of vehicles,

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(iii) Some monies were invested in Fixed Deposits in the names of various entities / Companies of the Nilesh Thakur Group mentioned hereinafter,

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(iv) Some monies were retained in the Bank Accounts of the various entities/ Companies of the Nilesh Thakur Group mentioned hereinafter.

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It became known to the Appellant during the course of various Original Complaint proceedings filed by Respondent No. 1 with the Adjudicating Authority that some part of the monies advanced by SPCL were also utilized by Respondent No. 3 to make advances to Kalyani Group (Rs. 61.42 crores) as a loan and to M/s. SRB Enterprises (Rs. 1.15 Crores) towards advance for purchase of a ownership Flat

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n) Respondent No. 3 [Nilesh Thakur] is the Sole Proprietor of Respondent No. 6 [M/s. PRS Enterprises], Respondent No. 7 [M/s. PRS Developers], Respondent No. 25 [M/s. Siddhivinayak Enterprises]. Respondent 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

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controlled by Respondent No. 3 [Nilesh Thakur] are hereinafter collectively called “Nilesh Thakur Group”.

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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.

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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 the immovable properties and FDR‟s mentioned above, are transferred to SPCL. The said letters [both] dated 22.3.2010 along with annexures are file at pg. 480 to 485 of Volume II of the 1104 Appeal.

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q) Since 6.9.2011, Respondent No. 3 did not transfer the immovable properties and FDR‟s to SPCL, SPCL filed a Suit against Respondent No. 3, Respondent No. 6 [i.e M/s PRS Enterprises], AIPL and Respondent No. 5 [Chayya Thakur] in the Bombay High Court [being Suit No. 2576 of 2011] for a money Decree against them for Rs. 219.39 Crores along with further interest at the rate of 18% p.a on the principal sum of Rs. 141.50 Crores and also for transfer of the properties mentioned above which were also mentioned in the Schedule to the Plaint of the above Suit.

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r) The Bombay High Court passed Decree on admission/ Consent Decree against the Defendants to the said Suit No. 2576 of 2011 in terms of Consent Terms dated 6.9.2011. By the said Consent Decree, the Defendants to the said Suit [arrayed as Respondent Nos. 3, 5, 6 and 9 to Appeal No. 1407/06]] submitted to a Decree on admission for Rs. 141.50 Crores with interest and also bound themselves to transfer to

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SPCL the properties including immovable properties, FDR‟s, Vehicles and balances in Bank Accounts which were listed in Exhibits “A” to “D” of the Consent Terms. Copy of the Consent Decree dated 19.10.2011 is filed of the 1104 Appeal].

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s) In assessment proceedings during the period January to March, 2013, 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 Respondent No. 3 / PRS Enterprises for the purpose of acquisition of land under the subject Agreement.

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t) In Appeal, the CIT [Appeals] after considering all documents and records including the Consent Decree passed by the Bombay High Court by his Order dated 17.5.2013 had found the transactions for advances for purchase of land under the subject Agreement were lawful and correct and allowed SPCL‟s Appeal for A.Y. 2008-09, 2009-10 and 2010-11.Copies of the Orders of CIT [Appeals] dated 17.5.2013 for Assessment Year 2008-09, Assessment Year 2009-10 and Assessment Year 2010-11 are already filed.

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u) SPCL received Summons from Respondent No. 1 / Director of Enforcement requiring SPCL to produce some documents. The said documents were duly produced by SPCL.

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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.

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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.

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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.

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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 the ITAT is filed along with Appeal.

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The appellant SPCL has also mentioned facts in its pleadings which are mentioned as under:-

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7.1 In February, 2011, Crime Branch, CID, registered an FIR on 7.2.2011 against Respondent No. 3 [Nilesh] and his brother Respondent No. 2 [Nitish Thakur] on the complaint of one Mukesh Waghela and Pandurang Thakur under Sections 387, 467, 471, 420 IPC and a Charge Sheet was subsequently filed. The FIR registered on 7.2.2011 as aforesaid is for convenience sake hereinafter called “the first FIR”.

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7.2 On 10.5.2011, on the basis of the first FIR, Respondent No. 1 [Director of Enforcement] had also started proceedings under the PML Act 2002 and registered a FIR namely ECIR No. 03/2011 dated 10.05.2011 under Sections 3 and 4 of the PML Act.

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7.3 Another FIR dated 14.3.2012 was registered, this time by the Anti-Corruption Bureau [“ACB”] under Sections 13 (1)(e) & 13 (2) of the Prevention of Corruption Act read with Section 109 of the IPC, inter-alia, against Respondent No. 2 [Nitish Thakur] alleging that Respondent No. 2 had disproportionate assets to the tune of Rs. 118.39 Crores. The FIR registered

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on 14.03.2012 as aforesaid is for convenience sake hereinafter called “the second FIR”.

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7.4 On the basis of the second FIR, Respondent No. 1 [Director of Enforcement] had also started proceedings under the PML Act 2002 and registered an FIR namely ECIR No. 6/M20/2012 dated 18.5.2012 under Sections 3 and 4 of the PML Act.

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7.5 The ACB Thane filed Charge Sheet bearing No. 5/2014 on 15.3.2014, interalia, against Respondent Nos. 2 and 3 under Sections 13 (1) (e) 13 (2) of the Prevention of Corruption Act read with Section 109 of the IPC. It appears that by way of the Charge Sheet all properties of SPCL which are mentioned at 6 (a), (b), (c) and (d) above [having been acquired out of the aggregate sum totalling to Rs. 141.50 Crores advanced to Respondent No. 3 under the subject agreement for land aggregation] were alleged to be disproportionate assets of Respondent No. 2 [Nitish Thakur]. Translated copy of the ACB Thane‟s Charge Sheet is filed in FPA No.1407/2016.

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7.6 Respondent No. 1 during the period April, 2012 to January, 2013, issued the following Provisional Attachment Orders on the basis of the first FIR being: (i) PAO No. 3 of 2012 dated 17.4.2012

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PAO 3/12 was confirmed by the Adjudicating Authority by way of Order dated 31.8.2012 passed in Original Complaint No. 140 of 2012.

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(ii) PAO No. 7 of 2012 dated 27.11.2012

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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.

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(iii) PAO No. 2 of 2013 dated 24.1.2013

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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.

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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.

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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

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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.

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(ii) PAO No. 23 of 2014 dated 31.12.2014

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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.

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7.8 After becoming aware of the existence of the PAO‟s listed at serial nos. 21 and 22 above [five in all] and the confirmation of the said PAO‟s by Orders passed by the Adjudicating Authority on each of the respective Original Complaints concerning the PAO‟s, SPCL being the legal and beneficial Owner of the attached properties and being aggrieved by the respective PAO‟s and the Orders passed on the corresponding Original Complaints confirming the PAO‟s, SPCL filed Appeals with this Authority in connection therewith being the following:

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(i) FPA-PMLA 890 of 2015 arising out of O.C. No. 140 of 2012 and PAO 3 of 2012,

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(ii) FPA-PMLA 888 of 2015 arising out of O.C. No. 174 of 2013 and PAO 2 of 2013,

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(iii) FPA-PMLA 889 of 2015 arising out of O.C. No. 169 of 2012 and PAO 7 of 2012,

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(iv) FPA-PMLA 895 of 2015 arising out of O.C. No. 370 of 2014 and PAO 19 of 2014,

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(v) FPA-PMLA 896 of 2015 arising out of O.C. No. 408 of 2015 and PAO 23 of 2014.

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7.9 By Order dated 17.5.2015 passed in each of the five FPA-PMLA appeals mentioned in the preceding paragraph, in view of the Judgement of this Hon‟ble Tribunal in the case of Central Bank of India vs R. Mohandoss, this Tribunal permitted SPCL to withdraw the said 5 Appeals with liberty to file Applications before the Adjudicating Authority under the proviso to Section 8(2) of the PML Act in respect of the Orders passed in the Original Complaints concerning the PAO‟s [5 in all] which are listed at Sr. Nos. 21 and 22 above.Copy of the Order dated 17.07.2015 is filed as Annexure - “3” in Appeal no FPA-PMLA- 1407 of 2016).

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7.10 Pursuant to the Order dated 17.7.2015 passed by this Tribunal and mentioned above in the month of August, 2015, SPCL filed the Misc. Applications with the Adjudicating Authority under the proviso to Section 8(2) of the PML Act, to modify / set aside or recall / vacate the Orders passed by the Adjudicating Authority in the Original Complaints relating to the PAO‟s which are mentioned at Serial Nos. 20 and 21 above [5 in all]. The details of the five Misc. Applications referred to above are as under:

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(i) M.A 08 of 2015 in FPA-PMLA 890 of 2015 arising out of O.C. No. 140 of 2012 and PAO 3 of 2012,

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(ii) M.A 05 of 2015 in FPA-PMLA 888 of 2015 arising out of O.C. No. 174 of 2013 and PAO 2 of 2013,

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(iii) M.A 04 of 2015 in FPA-PMLA 889 of 2015 arising out of O.C. No. 169 of 2012 and PAO 7 of 2012,

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(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,

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(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.

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Copy of Misc. Application No. 07 of 2015 isfiled as Annexure – “4” in Appeal no. FPA-PMLA- 1407 of 2016).

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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:

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(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.

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(ii) that the Adjudicating Authority has no power to modify, recall or review any Order passed by him.

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(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 )

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7.12 SPCL filed its further Affidavit dated 12.1.2016 in the proceedings of the five 2015 M.A.‟s bringing on record certain facts of which it became aware only recently. By this Affidavit, it was brought on record that Respondent No. 2 [Nitish Thakur] had been absent from duties right from December 2002 and that Respondent No. 2 did not discharge any official function from December 2002 onwards. SPCL advanced monies to Nilesh Thakur Group for acquisition of land under the subject Agreement only during the period 2007 to 2009. Therefore, the advances made by SPCL to Respondent No. 3 could not have had any nexus with the discharge of duties by the public servant Respondent No. 2 [being Nitish Thakur].Copy of the Affidavit dated 12.01.2016 is filed as Annexure – “6” in Appeal no. FPA-PMLA- 1407 of 2016.

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7.13 SPCL also filed Written Submissions dated15.1.2016 in response to the preliminary submissions submitted by the Respondent No.1/ Director of Enforcement. By these Written Submissions, SPCL pointed out, inter-alia, that Respondent No. 1 had not filed any Reply Statement to the 2015 M.A.‟s and therefore the case and contentions of SPCL in the 2015 M.A.‟s remained

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uncontroverted and therefore admitted and therefore the 2015 M.A.‟s ought to be allowed. It was also pointed out that Respondent No. 1 had not challenged in any manner this Tribunal‟s Order dated 17.7.2015 passed in the five Appeals mentioned at Sr. No. 23 above and therefore it was not open to Respondent No. 1 from taking up the pleas which had been taken by Respondent No. 1 by way of the preliminary submissions, in the proceedings of the 2015 M.A.‟s.

¶110

7.14 The Appellant also filed an Addl. Affidavit before the Adjudicating Authority on 12.01.2016 by which the Appellant inter- alia analyzed the Bank Statement of M/s. PRS Enterprises to show that the properties purchased by M/s. PRS Enterprises were purchased out of the funds of the Appellant. ( Copy of Addl. Affidavit filed by the Appellant before the Adjudicating Authority dated 12.01.2016 is filed in FPA No.1407 of 2016.

¶111

7.15 By his common Order dated 16.6.2016 passed in the five 2015 M.A.‟s, the Adjudicating Authority directed that considering that no factual submission was made by Respondent No. 1 / Director of Enforcement and that in the PAO‟s / O.C.‟s in question, SPCL was not made party, it is considered 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.)

¶112

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.

¶113

(i) FPA-PMLA Appeal Nos. 1406 of 2016,

¶114

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¶115

(ii) FPA-PMLA Appeal Nos. 1407 of 2016,

¶116

(iii) FPA-PMLA Appeal Nos. 1408 of 2016,

¶117

(iv) FPA-PMLA Appeal Nos. 1409 of 2016,

¶118

(v) FPA-PMLA Appeal Nos. 1410 of 2016,

¶119

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”].

¶120

7.17 In each of the five M.A. Appeals of July 2016, SPCL filed Stay Applications, inter-alia, for stay of the impugned Order of the Adjudicating Authority dated 16.6.2016 passed in the five 2015 M.A.‟s and mentioned above. The Stay Applications have been numbered as

¶121

(i) MP-PMLA-2638/MUM/2015

¶122

(ii) MP-PMLA-2639/MUM/2015

¶123

(iii) MP-PMLA-2640/MUM/2015

¶124

(iv) MP-PMLA-2641/MUM/2015

¶125

(v) MP-PMLA-2642/MUM/2015

¶126

Respondent No. 1 did not file any Reply Statement to oppose the Stay Applications.

¶127

7.18 This Tribunal passed Order dated 19.10.2016 on the Stay Applications [five in all] mentioned above whereby the operation of the impugned Order dated 16.6.2016 was stayed till the next date of hearing which is fixed for 14.2.2017.

¶128

The narration of facts below concerns PAO Nos. 13 of 2015, 16 of 2015, 18 of

¶129

2015 and 3 of 2016 which came to be issued by Respondent No. 1 only noticed by the appellant after March, 2015 as per its case. The Original Complaints filed by Respondent No. 1 in connection therewith as also the steps and proceedings taken by SPCL in relation thereto.

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¶131

8.1 Respondent No. 1 (Director of Enforcement) issued the following further four Provisional Attachment Orders [“PAO‟s”] on the basis of the second FIR being: (i) PAO No. 13 of 2015 dated 26.3.2015

¶132

(In respect of PAO 13/15, Respondent No. 1 filed Original Complaint No. 465 of 2015 [“the O.C. 465/15”] with the Adjudicating Authority.

¶133

(ii) PAO No. 16 of 2015 dated 31.3.2015

¶134

(In respect of PAO 16/ 15, Respondent No. 1 filed Original Complaint No. 495 of 2015 [“the O.C. 495/15”] with the Adjudicating Authority.)

¶135

(iii) PAO No. 18 of 2015 dated 21.7.2015

¶136

(In respect of PAO 18/ 15, Respondent No. 1 filed Original Complaint No. 512 of 2015 [“the O.C. 512/15”] with the Adjudicating Authority.)

¶137

(iv) PAO No. 3 of 2016 dated 30.3.2016

¶138

(In respect of PAO 3/ 16, Respondent No. 1 filed Original Complaint No. 596 of 2016 [“the O.C. 596/16”] with the Adjudicating Authority.)

¶139

8.2 During the period June, 2015 and January,2016, in each of the Original Complaint Nos. 465/15, 495/15, 512/15 and 596/16, SPCL intervened and filed Misc. Applications under the proviso to Section 8(2) of the PML Act objecting to the attachment by way of the PAO‟s. By the said Misc. Applications, SPCL brought on record all the necessary facts and documents which established that it is the legal and beneficial owner of the properties sought to be attached by the Respondent No. 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.

¶140

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

¶141

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¶142

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.

¶143

8.4 Respondent No. 1 [Director of Enforcement] also filed Statements commenting on SPCL‟s Misc. Applications.

¶144

8.5 In the month of August, 2015, in the proceedings of O.C.465/15 and O.C. 495/15, the Adjudicating Authority passed separate Orders [both] dated 27.8.2015 holding that the properties attached by way of the PAO‟s are proceeds of crime, involved in money laundering and therefore confirmed the PAO No. 13/15 and PAO No. 16/15.

¶145

8.6 Being aggrieved by the Orders [both] dated 27.8.2015 passed in O.C. No. 465/15 and O.C. No. 495/15, SPCL filed Appeals in the month of October, 2015, in connection with the same with this Hon‟ble Tribunal being Appeal Nos. FPA-PMLA Nos. 1104 of 2015 [being the 1104 Appeal] and 1105 of 2015.In the proceedings of Appeal Nos. FPA-PMLA Nos. 1104 of 2015 and 1105 of 2015, SPCL filed Stay Applications, inter-alia, for the stay of the impugned Order of the Adjudicating Authority [both] dated 27.8.2015 passed in O.C. Nos. 465/15 and 495/15 as mentioned above. The Stay Applications have been numbered as

¶146

(i) MP-PMLA-2344/MUM/2015 (STAY)

¶147

(ii) MP-PMLA-2345/MUM/2015 (STAY)

¶148

8.7 In the proceedings of O.C.512/15, the Adjudicating Authority passed an Order dated 30.12.2015 holding that the properties attached by way of the PAO are

¶149

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¶150

proceeds of crime, involved in money laundering and therefore confirmed the PAO No. 18/15.

¶151

8.8 Being aggrieved by the Order dated 30.12.2015 passed in O.C. No. 512/15, SPCL on 15.2.2016, filed Appeal in connection with the same with this Hon‟ble Tribunal being Appeal No. FPA-PMLA No. 1211 / 2016.

¶152

8.9 In the proceedings of O.C. 596/16, the Adjudicating Authority passed an Order dated 11.08.2016 holding that the properties attached by way of the PAO‟sare proceeds of crime, involved in money laundering and therefore confirmed the PAO No. 03/16.

¶153

8.10 Being aggrieved by the Order dated 11.08.2016 passed in O.C. No. 596/16, SPCL filed Appeal in the month of September, 2016, in connection with the same with this Tribunal being Appeal Nos. FPA-PMLA No. 1479 / 2016 which Appeal is pending disposal before this Tribunal.

¶154

8.11 In November, 2016, Respondent No. 1 filed his Counter Affidavit to the Appeal Nos. FP-PMLA 1104/15 and 1105/15 filed by SPCL arising out of O.C. Nos. 465/15 and O.C 495/15 stating that the Appeals be dismissed with costs.

¶155

Details of various appeals filed by the appellant before this Tribunal along with description of properties which are subject matter of said appeals, are as follows:-

¶156

1. Appeal FPA-1406/16 (OC No.140/12):

¶157

Sr. No.	Particulars	Consideration mentioned in the 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, 2^ndFloor, NG Sun City, Thakur Village, Kandivali (E), Mumbai-101	39,54,170

¶158

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¶159

	[294 sq. ft]
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

¶160

2. Appeal No.FPA-1410/16 (OC No.169/12):

¶161

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, Murud- Janjira, Distt. Raigad.	45,10,000
3	Shop No.9, Parmar Complex, Pali, Raigad.	4,90,000
		89,00,000

¶162

3. Appeal No. FPA -1409/16 (OC No.174/13):

¶163

Sr. No.	Particulars	Consideration mentioned in the Documents
1	27.49% of the total property valued at Rs.19,19,25,000/- . The total property is the land admeasuring 76.62 acres (30.64.6 hectare) in four villages 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 in various surveynumbers.	5,27,52,859

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¶165

5,27,52,859

¶166

4. Appeal No.1407/2016 (OC No.370/14):

¶167

Sr. No.	Particulars	Consideration mentioned in the Documents
1	Land totally admeasuring 76.62 acres [30.64.6 hectare] in 3 villages in Alibagu namely, 26.91.40 Hectare in village Waghvira, 3.41.3 Hectare in Village Chikali and 0.31.9 Hectare in village Hemangar [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	13,91,72,141
		13,91,72,141

¶168

Details of fixed deposits:

¶169

Sr. No	Name of Bank	Bank Account No./ FD No.	Name of Entity / Company	On 08.09.2014
1	GBCB	1576	PRS Developers	41635.92
2	GBCB	1537	PRS Enterprises	2626.05
3	GBCB	30200761612	Aishwarya Investments	18522
4	GBCB	10216009856	AcecardInfrasol Pvt Ltd	1864100.75
5	GBCB	30200287913	Shoreline Exports	3124	19,30,008.7
6	GBCB	FDR 30201322722	AcecardInfrasol Pvt Ltd.	13290421.33	1,32,90,421
7	KAPOL	5295	Acecard Trading Pvt. Ltd.	3690134.58
8	KAPOL	5296	AcecardInfrasol Pvt Ltd	757.88
9	KAPOL	5326	Ace Card Export Pvt Ltd	166.76
10	KAPOL	5327	Ace Card Agro Ind Pvt Ltd	7859.57

¶170

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¶171

11	KAPOL	5328	Ace Card 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 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

¶172

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¶173

Bank a/c	9,32,39,174
balance
Gr Total	39,65,29,595

¶174

5. Appeal No.FPA-1408/16 (OC No.408/15):

¶175

Sr. No.	Particulars	Consideration mentioned in the Documents
1	Commercial Shop No.4, Shrutisarang Cooperative Society, Alibag Area 217 Sq. Ft. (10.16 sq. Mtrs) (Built up area)	1,50,000
2	Commercial Shop No.6, Shrutisarang Cooperative Society, Alibag Area 376 Sq. Ft. (Built up area)	6,78,000
3	Commercial Shop No.7, Shrutisarang Cooperative Society, Alibag Area 376 Sq. Ft. (Built up area)	6,74,000
4	Commercial Shop No.8, Shrutisarang Cooperative Society, Alibag Area 376 Sq. Ft. (Built up area)	6,74,000
5	Commercial Shop No.9, Shrutisarang Cooperative Society, Alibag Area 382 Sq. Ft. (Built up area)	6,74,000
6	Flat No.202, 2^ndFloor, Sapphire, Ram Mandir Road, MG Cross Road, Vile Parle (E), Mumbai-400057 area 622 sq.ft. (carpet area)	Agreement value- 1,15,50,000 + other charges Rs.92,661 + Stamp Duty, registration fee etc. Rs.6,23,955 Totalling to 1,22,66,616
7	Room/ residential plot admeasuring area 11.20 sq. Mt. (built up area) next to building No.10, Old MHB Colony, Borivali West, Mumbai-400091	6,00,000
8	Room/ residential plot admeasuring area 150 sq. ft. next to building No.10, Old MHB Colony, Borivali West, Mumbai- 400091	5,00,000

¶176

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¶177

9	Room/ residential plot admeasuring area	20,00,000
	10.40 sq. mt. next to building No.10, Old MHB Colony, Borivali West, Mumbai- 400091
		1,82,16,616

¶178

6. Appeal No.FPA-1104/15 (OC No.465/15):

¶179

Sr. No.	Particulars	Consideration mentioned in the Documents
1	Flat No. 3, „H‟ wing, FlowerValley, Mahad.	5,00,000
2	Flat No. 53, B Wing, Swapnashilp, situated at final Plot No. 52, Mahant Road, VilleParle (East), Mumbai.	2,63,95,100
3	Flat No.31, A-Wing, Swapnashilp, situated at final Plot No. 52, Mahant Road, VilleParle (East), Mumbai.	1,23,95,100
4	Flat No. 1- C Block- C Viceroy Court CHSL. ThakurVillage, Kandivali (East), Mumbai 400101	61,25,100
5	Flat 1208, B Wing, BorivaliDwarkanath CHS (Vijay Nagar), Borivali, Mumbai	47,37,600 5,01,52,900

¶180

7. Appeal No.FPA-1105/15 [OC No.495/15]:

¶181

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 TradingPvt. Ltd.	2,600,000
LAND ROVER	MH-02-BY-3900	AcecardInfrasolPvt. Ltd.	81,93,407

¶182

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¶183

Total: 1,64,93,407

¶184

8. Appeal No.FPA-1211/16 [OC No.512/15]:

¶185

A sum of Rs.61,42,00,000/- was given on loan by Nilesh Thakur Group to Kalyani Education Group and other connected 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:-

¶186

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& Gut No.45/3, 47/2 & 589 of village Vadholi, Tal. Trimbakeshwar, Distt. Nashik	14,16,73,249
		56,02,05,718

¶187

9. Appeal No.FPA-1479/16 (OC No.596/16):

¶188

S.	Location	Consideration
no.		mentioned in the deed
1	Balance lying in a/c No.703266871 of M/s. SRB	1,15,00,000
	Developers with Indian Bank,
	Belapur Branch, Navi Mumbai

¶189

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¶190

Details of payments made to M/s. PRS Enterprises [sole

¶191

proprietorship concern of Nilesh Thakur :-

¶192

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 crores	Deutsche Bank/DN Road, Fort
280050	10.01.2008	Rs.6.5 crores	Standard Chartered/Mumbai Metro Main Branch
280174	10.03.2018	Rs.10 crores	Standard Chartered/Mumbai Metro Main Branch
117653	07.04.2008	Rs.16.5 crores	Standard 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 =============

¶193

The details of payments made to M/s. AcecardInfrasolPvt. Ltd., company controlled by Nilesh Thakur :-

¶194

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

¶195

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¶196

¶197

44749	23.01.2009	Rs.5 crores	Deutsche Bank/Kodak House Branch
002482	24.04.2009	Rs.10 crores	Standard Chartered/MG Road Branch
243883	23.06.2009	Rs.10 crores	Standard Chartered/MG Road Branch
243848	18.08.2009	Rs.20 crores	Standard Chartered/MG Road Branch
	Total	Rs. 57 Crores ===========

¶198

The following properties were purchased by Nilesh Thakur Group:-

¶199

13. Properties attached in OC No.140/12 :

¶200

(The SPCL has challenged the aforesaid attachment in PMLA Appeal No.1406/2016)

¶201

Sr. No.	Date of Execution of Documents	Consideration mentioned in the Documents	Particulars
1	30.08.2010	74,00,000	Ro House/ 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, 2^ndFloor, 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

¶202

Properties attached in OC No.169/12:-

¶203

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¶204

(The SPCL has challenged the aforesaid attachment in PMLA Appeal No.1410/2016)

¶205

Sr. No.	Date of Execution of Documents	Consideration mentioned in the Documents	Particulars
1	11.05.2009	39,00,000	Plot of land at City Survey No.73, Hissa No.0.30.6 city survey No.1009 area 3388.88 sq.mtrs at Alibag.
2	16.06.2008	45,10,000	S. No.191/17, 1 for 21.7 gunthas land plot, opposite Koteshwari Temple, Murud- Janjira, Distt. Raigad.
3	25.04.2008	4,90,000	Shop No.9, Parmar Complex, Pali, Raigad.
	Total	89,00,000

¶206

15. Properties attached in OC No.1409/16:-

¶207

( The SPCL has challenged the aforesaid attachment in PMLA Appeal No.174/13)

¶208

Sr. No.	Date of Execution of Documents	Consideration mentioned in the Documents	Particulars
1	27.03.2008	5,27,52,859	27.49% of the total property valued at Rs.19,19,25,000/-. The total property is the land admeasuring 76.62 acres (30.64.6 hectare) in four villages 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 in various survey numbers.
	Total	5,27,52,859

¶209

Properties attached in OC No.370/14:

¶210

(The SPCL has challenged the aforesaid attachment in PMLA Appeal No.1407/2016)

¶211

Sr. No.	Date of Execution of Documents	Consideration mentioned in the Documents	Particulars
1	27.03.2008	13,91,72,141	Land totally admeasuring 76.62 acres [30.64.6 hectare] in 3 villages in Alibagu namely, 26.91.40 Hectare in village Waghvira, 3.41.3 Hectare in Village Chikali and 0.31.9 Hectare in village Hemangar [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. Thusremaining consideration for

¶212

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¶213

purchase of Surya Roshni land amounting to Rs.13,91,72,141 Total 13,91,72,141

¶214

Details of fixed deposits:

¶215

Sr. No	Name of Bank	Bank Account No./ FD No.	Name of Entity / Company	On 08.09.2014
1	GBCB	1576	PRS Developers	41635.92
2	GBCB	1537	PRS Enterprises	2626.05
3	GBCB	30200761612	Aishwarya Investments	18522
4	GBCB	10216009856	AcecardInfrasol Pvt Ltd	1864100.75
5	GBCB	30200287913	Shoreline Exports	3124	19,30,008.7
6	GBCB	FDR 30201322722	AcecardInfrasol Pvt Ltd.	13290421.33	1,32,90,421
7	KAPOL	5295	Acecard Trading Pvt. Ltd.	3690134.58
8	KAPOL	5296	AcecardInfrasol Pvt Ltd	757.88
9	KAPOL	5326	Ace Card Export Pvt Ltd	166.76
10	KAPOL	5327	Ace Card Agro Ind Pvt Ltd	7859.57
11	KAPOL	5328	Ace Card 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

¶216

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¶217

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

¶218

Properties attached in OC No.408/14:(The SPCL has challenged the aforesaid attachment in PMLA Appeal No.1408/2016)

¶219

Sr. No.	Date of Execution of Documents	Consideration mentioned in the Documents		Partic	ulars
1	11.09.2008	1,50,000	Commercial Cooperative Ft. (10.16 sq	Shop Society, . Mtrs) (B	No.4, Alibag uilt up	Shrutisarang Area 217 Sq. area)
2	11.09.2008	6,78,000	Commercial Cooperative Ft. (Built up a	Shop Society, rea)	No.6, Alibag	Shrutisarang Area 376 Sq.

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of 60

¶222

3	11.09.2008	6,74,000	Commercial Shop No.7, Shrutisarang Cooperative Society, Alibag Area 376 Sq. Ft. (Built up area)
4	11.09.2008	6,74,000	Commercial Shop No.8, Shrutisarang Cooperative Society, Alibag Area 376 Sq. Ft. (Built up area)
5	11.09.2008	6,74,000	Commercial Shop No.9, Shrutisarang Cooperative Society, Alibag Area 382 Sq. Ft. (Built up area)
6	Agreement dated 28.07.2009 &Rectification Deed dated 17.08.2009	Agreement value- 1,15,50,000 + other charges Rs.92,661 + Stamp Duty, registration fee etc. Rs.6,23,955 Totalling to 1,22,66,616	Flat No.202, 2^ndFloor, Sapphire, Ram Mandir Road, MG Cross Road, Vile Parle (E), Mumbai-400057 area 622 sq.ft. (carpet area)
7	15.07.2009	6,00,000	Room/ residential plot admeasuring area 11.20 sq. Mt. (built up area) next to building No.10, Old MHB Colony, Borivali West, Mumbai-400091
8	15.07.2009	5,00,000	Room/ residential plot admeasuring area 150 sq. ft. next to building No.10, Old MHB Colony, Borivali West, Mumbai-400091
9	20.05.2009	20,00,000	Room/ residential plot admeasuring area 10.40 sq. mt. next to building No.10, Old MHB Colony, Borivali West, Mumbai- 400091
		1,82,16,616

¶223

Properties attached in OC No.465/15:-

¶224

(The SPCL has challenged the aforesaid attachment in PMLA Appeal No.1104/2015)

¶225

Sr. No.	Date of Execution of Documents	Consideration mentioned in the Documents	Particulars
1	07.07.2008	5,00,000	Flat No. 3, „H‟ wing, FlowerValley, Mahad.
2	28.08.2009	2,63,95,100	Flat No. 53, B Wing, Swapnashilp, situated at final Plot No. 52, Mahant Road, VilleParle (East), Mumbai.

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¶227

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

¶228

Properties attached in OC No.495/15:-

¶229

(The SPCL has challenged the aforesaid attachment in PMLA Appeal No.1105/2015)

¶230

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	MH-092-BR-3993	M/s. Acecard	2,600,000
CRV		TradingPvt. Ltd.
LAND ROVER	MH-02-BY-3900	AcecardInfrasolPvt. Ltd.	81,93,407
		Total:	1,64,93,407

¶231

Total value of properties/ bank accounts/ FDs/ cars etc attached is Rs.1,32,33,16,406/-.

¶232

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, Sector 24, Kamothe, Navi Mumbai.

¶233

Properties attached in OC No.596/16:-

¶234

(The SPCL has challenged the aforesaid attachment in PMLA Appeal No.1479/2016)

¶235

S.	Date of	Consideration	Location
no.	execution of document	mentioned in the deed
		1,15,00,000	Balance lying in	a/c
			No.703266871 of M/s. Developerswith Indian	SRB Bank,

¶236

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¶237

Belapur Branch, Navi Mumbai

¶238

Schedule of Properties attached by PAO 3 of 2016 being subject matter of OC 596 of 2016.Balance lying in the Bank Account No. 703266871 of M/s SRB Developers (being Respondent No. 2 Firm) maintained with Indian Bank, CBD Belapur Branch, Navi Mumbai to the extent of Rs. 1,15,00,000/- (Rs. 1.15 Crores)

¶239

Respondent No. 2 Firm had agreed to issuance of Letters of allotment in respect of the ownership Flats after approval of the building plans by the Municipal Authorities.

¶240

24.1 Respondent No. 4 had made payment of a total sum of Rs. 1.15 Crores to Respondent No. 2 Firm out of monies of SPCL and investment had been made for SPCL‟s benefit.

¶241

24.2 Since the plot of land at Kamothe became subject matter of litigation, Respondent No. 2 Firm‟s Partners did not issue the Letters of Allotment in respect of the Flats. The deposit of Rs. 1.15 Crores made by Respondent No. 4 out of SPCL‟s funds continued to lie all this while with Respondent No. 2 Firm despite requests made by Respondent No. 4 to Respondent No. 2 Firm for refund of the said amount. This amount of Rs. 1.15 Crores or has to be refunded and made over to SPCL towards satisfaction of the Consent Decree passed by the Bombay High Court in the proceedings of Suit No. 2576 of 2011 as alleged by the SPCL.

¶242

24.3 During the period November, 2013 to November, 2015, Respondent No. 1 carried out purported investigation under the provisions of the PML Act and recorded the statements of Partners of Respondent No. 2 Firm who brought on record that the amount of Rs. 1.15 Crores had been received

¶243

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¶244

by Respondent No. 2 Firm for booking of Flats in their proposed real estate project at Kamothe, Navi Mumbai.

¶245

24.4 Respondent No.1 issued Provisional Attachment Order No 3 of 2016 dated 30.3.2016 attaching Respondent No. 2 Firm‟s Bank Account with Indian Bank, CBD, Belapur Branch to the extent of Rs. 1.15 Crores.

¶246

24.5 Respondent No. 1 filed Original Complaint No. 596 of 2016 (“O.C.

¶247

596/16”) with the Adjudicating Authority in the month of May, 2016.

¶248

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.

¶249

Being aggrieved by the Order dated 11.8.2016; SPCL filed the above Appeal before this Tribunal in September, 2016.

¶250

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.

¶251

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.

¶252

Dy Director, Directorate of Enforcement …Respondent No.1/ Org. Complainant

¶253

Ravindra G. Sapkal,

¶254

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¶255

Kalyani Charitable Trust,

¶256

Kalyani Education Pvt. Ltd,

¶257

Nitish J. Thakur,

¶258

Nilesh J. Thakur,

¶259

M/s. Ace Card Infrasol Pvt Ltd,

¶260

PRS Enterprises,

¶261

Bank of Maharashtra,

¶262

State Bank of India,

¶263

Bank of Maharashtra,

¶264

State Bank of India .… Respondent Nos. 2 to 12/ Org. Defendant Nos.1 to 11

¶265

Properties attached in OC No.512/15: -

¶266

(The SPCL has challenged the aforesaid attachment in PMLA Appeal No.1211/2016)

¶267

¶268

28.1 The properties which are subject matter of attachment are as

¶269

follows:-

¶270

s. no.	Date of execution of document	Consideration mentioned in the deed	Location
1	04.11.2011	65,00,000	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 Ravindra Sapkal purchased from the account of Kalyani Charitable Trust‟s Axis Bank account
2		65,00,000	Fixed Deposit Syndicate Bank Byuculla
		40,50,00,000	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.

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		Nashik.
4	5,32,469	Bank Balance account in RavindraSapkal‟s bank account in Axis Bank, PrabhadeviWorli Branch
	14,16,73,249	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& Gut No.45/3, 47/2 & 589 of village Vadholi, Tal. Trimbakeshwar, Distt. Nashik
Total	56,02,05,718

¶273

28.2 The Nilesh Thakur Group during the period 2007 – 2009 and 2011 to 2012

¶274

invested part of the monies advanced by SPCL under the land aggregation agreement (i.e. Rs. 141.50 Crores) in the Kalyani Group (Respondent Nos. 2, 3 and 4 herein) promoted by Ravindra G. Sapkal (being Respondent No. 2). The Nilesh Thakur Group advanced an aggregate sum of Rs. 61,42,00,000/- (Rs. 61.42 Crores) to Kalyani Group 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).

¶275

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

¶276

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¶277

the Kalyani Group is that it was merely a donation to the trust and no investment.

¶278

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/M20/2012 dated 18.5.2012) being PAO No. 18 of 2015 dated 21.07.2015 attaching the properties worth Rs. 56,02,05,718/(i.e. 56.02 Crores) standing in the name of the Respondents (i.e. the Kalyani Group) on the alleged basis that the said properties had been acquired out of proceeds of crime involved in money laundering.

¶279

28.5 Based on the aforesaid PAO No. 18/15, Respondent No. 1 filed O.C. 512/15 before the Adjudicating Authority.

¶280

28.6 Being aggrieved by the attachment of properties in question, SPCL filed a Misc. Application on 28.10.2015 under proviso to section 8 (2) of the PML Act for being impleaded as a party Defendant to the said Original Complaint as it is the case of SPCL that it is the beneficial and the legal Owner of the aforesaid immovable properties, bank balances and fixed deposits, provisionally attached by the Enforcement Department as the said properties have been purchased/ created from the funds made available by Nilesh Thakur Group to the Kalyani Group, which in turn were advanced by SPCL to the Nilesh Thakur Group under the subject Agreement for land aggregation.

¶281

28.7 In view of the said Misc. Application, the Adjudicating Authority directed that SPCL be made a party Defendant to the Original Complaint and accordingly SPCL was arrayed as Defendant No. 12 in the proceedings of the O.C. 512/15.

¶282

28.8 At the hearing before the Adjudicating Authority on 18.11.2015, Respondent No. 1 submitted a statement giving his comments to the Misc.

¶283

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¶284

Application praying therein that the Misc. Application filed by SPCL [Reply to SCN] be dismissed as it was devoid of merits and the attachment be confirmed.

¶285

28.9 SPCL filed a Response Statement to the statement filed by Respondent No.1 in November, 2015. By its Response Statement SPCL brought on record the correct facts of the matter and also thereby dealt with Respondent No. 1‟s comments and contentions set out in Respondent No. 1‟s Statement.

¶286

28.10 The Adjudicating Authority vide its Order dated 30.12.2015 confirmed the said PAO No. 18/15.

¶287

Being aggrieved by the Order dated 30.12.2015, SPCL filed the above Appeal before this Tribunal on 15.02.2016.

¶288

If the appeals filed by the SPCL are allowed, the appeals filed by Kalyani Groups are also liable to be allowed as they have received the amount whether loan or donation, the facts remained that the said amount was the part amount given by the SPCL to Mr. Nilesh and his associate firms and companies

¶289

It is undisputed fact that the Appellant Company engaged the services of Shri Nilesh Thakur to acquire 900 acres of land in various districts of Maharashtra, Nilesh Thakur being familiar 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 Appellant Company has placed on record detailed submissions on contract between the Appellant Company and Nilesh Thakur page no.823 of Appeal No.1104). The Appellant Company has also produced many judgments which clearly lay down the legal position that the exchange of letters form a contact,

¶290

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¶291

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.

¶292

In the admitted position between all the parties that in view of to the aforesaid agreement / contract contained in the letter dated 16.07.2007 and 19.07.2007 , the Appellant Company transferred Rs.141.50 crores to the Nilesh Thakur Group in 2007-2009. The said amount of Rs.141.50 crores is legitimately earned money of the Appellant and are not proceeds of crime. Since the transfer has been made by the Appellant Company to Nilesh Thakur under an agreement and for lawful purposes, the same does not become proceeds of crime in the hands of Nilesh Thakur. This fact has been admitted by the respondent no.1 as well as Nilesh Thakur, his brother Nitish Thakur and other parties.

¶293

Nilesh Thakur, either in his own name or in the name of groupcompanies/sole proprietorship concerns, acquired lands and had also invested some of the money in buying flats, cars, and also put some money in fixed deposits to earn interest. This fact is also denied by any party including Nilesh Thakur.

¶294

Properties acquired by the Nilesh Thakur Group from the funds advanced by SPCL to PRS Enterprises and AcecardInfrasolPvt. Ltd. between the period September 2007 to August 2009 are as below:-

¶295

Sr. No.	Date of Purch ase	Name of Purchaser	Consideration for the properties advanced from the bank account of:	Consideratio n price mentioned in the Deed / document [“Rs.”]	Descri	ption of property	O.C. NO.
1.	01.11. 2007	PRS Enterprises - Proprietor Nilesh Janardan Thakur	PRS Enterprises A/c No. 1537 of GBCB Bank	1,80,00,000/ -	Hotel Darbar Janjira,	Shoreline at Road, Murud, [700 sq. mtrs]	140/12

¶296

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¶297

2.	18.01. 2008	Nilesh Janardan Thakur	PRS Enterprises A/c No. 1537 of GBCB Bank	39,54,170/-	Flat No.1, D/201, 2^nd Floor, NG Sun City, Thakur Village, Kandivali (E), Mumbai-101 [294 sq. ft]	140/12
3.	19.03. 2008	Nilesh Janardan Thakur	PRS Enterprises A/c No. 1537 of GBCB Bank	3,44,40,000/ -	Land 0-49-2 (HR) at village Dhokawade, Taluka Dighodi, District. Alibaug, 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)	140/12
4.	27.03. 2008	Nilesh Janardan Thakur	PRS Enterprises A/c No. 1537 of GBCB Bank	5,27,52,859/ -	[Surya Roshni] Land totally admeasuring 76.62 acres (30.64.6 hectare) in four villages 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 in various survey numbers totally valued at Rs. 19,19,25,000/-. Property attached to the extent of 27.49% of the total value	174/13
5.	27.03. 2008	Nilesh Janardan Thakur	PRS Enterprises A/c No. 1537 of GBCB Bank	13,91,72,14 1/-	ofthe property. Land totally admeasuring 76.62 acres [30.64.6 hectare] in 3 villages 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. 11.	07.07. 2008 11.09. 2008	Nilesh Janardan Thakur Nilesh Janardan Thakur	PRS Enterprises A/c No. 1537ofGBCB Bank	5,00,000/- 24,00,000/-	Flat No. 3, „H‟ wing, Flower Valley,Mahad. Gala No.1 & 2, Puja CHS, City Surey No.1125,Alibaug [total	465/15 140/12

¶298

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¶299

					area 622 sq. ft.]
12.	11.09. 2008	Nilesh Janardan Thakur	PRS Enterprises A/c No. 1537 of GBCB Bank	1,50,000/-	Commercial Shop No.4, Shrutisarang Cooperative Society, Alibag Area 217 Sq. Ft. (10.16 sq. Mtrs) (Built up area)	408/15
13.	11.09. 2008	Nilesh Janardan Thakur	PRS Enterprises A/c No. 1537 of GBCB Bank	6,78,000/-	Commercial Shop No.6, Shrutisarang Cooperative Society, Alibag Area 376 Sq. Ft. (Built up area)	408/15
14.	11.09. 2008	Nilesh Janardan Thakur	PRS Enterprises A/c No. 1537 of GBCB Bank	6,74,000/-	Commercial Shop No.7, Shrutisarang Cooperative Society, Alibag Area 376 Sq. Ft. (Built up area)	408/15
15.	11.09. 2008	Nilesh Janardan Thakur	PRS Enterprises A/c No. 1537 of GBCB Bank	6,74,000/-	Commercial Shop No.8, Shrutisarang Cooperative Society, Alibag Area 376 Sq. Ft. (Built up area)	408/15
16.	11.09. 2008	Nilesh Janardan Thakur	PRS Enterprises A/c No. 1537 of GBCB Bank	6,74,000/-	Commercial Shop No.9, Shrutisarang Cooperative Society, Alibag Area 382 Sq. Ft. (Built up area)	408/15
17.	20.02. 2009	AcecardInfrasolPvt. Ltd	AcecardInfrasolPvt. Ltd A/c No. 10216009856 with GBCB bank	1,23,95,100/ -	Flat No.31, A-Wing, Swapnashilp, situated at final Plot No. 52, Mahant Road, Ville Parle (East), Mumbai.	465/15
18.	11.05. 2009	Nilesh Janardan Thakur	PRS Enterprises A/s No. 1537 of GBCB Bank	39,00,000/-	Plot of land at City Survey No.73, Hissa No.0.30.6 city survey No.1009 area 3388.88 sq.mtrs at Alibaug	169/12
19.	20.05. 2009	Nilesh Janardan Thakur	Cash payment	20,00,000/-	Room/ residential plot admeasuring area 10.40 sq. mt. next to building No.10, Old MHB Colony, Borivali West, Mumbai- 400091	408/15
20.	15.07. 2009	Nilesh Janardan Thakur	Cash Payment	6,00,000/-	Room/ residential plot admeasuring area 11.20 sq. Mt. (built up area) next to building No.10, Old MHB Colony, Borivali West, Mumbai- 400091	408/15
21..	15.07. 2009	Nilesh Janardan Thakur	Cash payment	5,00,000/-	Room/ residential plot admeasuring area 150 sq. ft. next to building No.10, Old MHB Colony, Borivali West, Mumbai- 400091	408/14
22.	Agree ment dated 28.07. 2009 & rectific ation deed dated 17.08. 2009	AcecardInfrasolPvt. Ltd.	PRS Enterprises A/s No. 1537 of GBCB Bank and AcecardInfrasolPvt. Ltd A/c No. 10216009856 with GBCB bank Note: Stamp duty and registration fees paid from AcecardInfrasolPvt. Ltd.	Agreement value- 1,15,50,000 + other charges Rs.92,661 + Stamp Duty, registration fee etc. Rs.6,23,955 Totalling to 1,22,66,616/ -	Flat No.202, 2^ndFloor, Sapphire, Ram Mandir Road, MG Cross Road, Vile Parle (E), Mumbai- 400057 area 622 sq.ft. (carpet area)	408/15
23.	28.08. 2009	AcecardInfrasolPvt. Ltd	AcecardInfrasolPvt. Ltd A/c No. 10216009856 with GBCB bank	2,63,95,100/ -	Flat No. 53, B Wing, Swapnashilp, situated at final Plot No. 52, Mahant Road, Ville Parle (East), Mumbai.	465/15
24.	28.08. 2009	Nilesh Janardan Thakur	PRS Enterprises A/c No. 1537 of GBCB Bank	61,25,100/-	Flat No. 1- C Block- C Viceroy Court CHSL. Thakur Village, Kandivali (East), Mumbai 400101	465/15

¶300

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¶301

25.	30.08. 2010	Acecard Trading Pvt. Ltd.	PRS Enterprises A/c No. 1537 of GBCB Bank	74,00,000/-	Row House/ Bungalow No.62/65, Road No.RSC-13, MHADA Layout, Gorai, Borivali West, Mumbai-92 [103 .70 sq. mtrs]	140/12
26.	13.09. 2010	Acecard Trading Pvt. Ltd.	Acecard Trading Pvt. Ltd. A/c No. CA/5295, of Kapol Bank, Vile Parle.	47,37,600/-	Flat 1208, B Wing, Borivali Dwarkanath CHS (Vijay Nagar), Borivali, Mumbai	465/15
27.	24.09. 2009 to 11.01. 2010	AcecardInfrasolPvt. Ltd.	AcecardInfrasolPvt. Ltd A/c No. 10216009856 with GBCB bank	35,00,000/- 35,93,407/- 11,00,000/-	Land Rover –MH-02- BR-3900	495/15
28.	23.06. 2010	Acecard Trading Pvt. Ltd.	Acecard Trading Pvt. Ltd A/c No. CA/5295 of Kapol Bank, Vile Parle.	57,00,000/-	Audi – MH-02-CH-777	495/15
29.	03.10. 2011	Acecard Trading Pvt. Ltd.	Acecard Trading Pvt. Ltd. A/c No. CA/5295, of Kapol Bank, Vile Parle.	26,00,000/-	Honda CRV – MH-092- BR-3993	495/15
30.	11.02. 2008 to 23.06. 2008	Kalyani Charitable Trust	PRS Enterprises A/s No. 1537 of GBCB Bank	22,55,00,00 0/-	Advances to Kalyani Charitable Trust – Rs. 22,55,00,000/- 11.2.2008- 4,00,00,000/- 5.3.2008 – 7,00,00,000/- 3.5.2008 – 2,00,00,000/- 11.6.2008 - 3,25,00,000/- 23.6.2008 – 6,30,00,000/- Note:These monies were advanced by the Nilesh Thakur Group to the Kalyani Group and the same were utilized for purchase of properties and construction of buildings/ structures, which buildings / structures have been subject matter of attachment in Original Complaint No. 512/15.	512/15
31. 32.	15.12. 2007 to 28.08. 2008 22.08. 2009	Kalyani Education Pvt. Ltd Kalyani Charitable Trust	PRS Enterprises A/s No. 1537 of GBCB Bank AcecardInfrasolPvt. Ltd A/cNo. 10216009856	18,97,00,00 0/- 1,00,00,000/ -	Advances to Kalyani Education Pvt. Ltd. – Rs. 18,97,00,000/- 15.12.2007 – 52,00,000/- 20.12.2007 – 3,80,00,000/- 21.1.2008 – 1,50,00,000/- 3.4.2008 – 1,00,00,000/- 15.4.2008 – 2,00,00,000/- 21.4.2008 – 2,65,00,000/- 12.7.2008 - 50,00,000/- 28.8.2008 – 7,00,00,000/- Note:These monies were advanced by the Nilesh Thakur Group to the Kalyani Group and the same were utilized for purchase of properties and construction of buildings / structures, which buildings / structures have been subject matter of attachment of Original Complaint No. 512/15. Advances to Kalyani ChartitableTrust:	512/15

¶302

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¶303

with GBCB bank
Note: These monies
were advanced by the
Nilesh Thakur Group to
the Kalyani Group and
the same were utilized
for purchase of
properties and
construction of buildings/
structures, which
buildings / structures
have been subject
matter of attachment in
Original Complaint No.
512/15.

¶304

Balances in Bank Accounts and Fixed Deposit Receipts

¶305

In addition to the above properties acquired out of SPCL‟s funds, the Nilesh Thakur Group also invested a portion of SPCL‟s monies in Fixed Deposit Receipts [“FDR‟s”] of certain Banks. The remaining monies continued to remain as unutilised balances in the Nilesh Thakur Group entities‟ Bank Accounts. These FDR‟s and Bank balances in Bank Accounts are subject matter of Provisional Attachment in Original Complaint No. 370 of 2014. Since the record relating to these FDR‟s and Bank Accounts are not available with SPCL, SPCL is unable to provide any details concerning the same. The total value of the FDR‟s and the amounts lying in the Bank Accounts as bank balances is Rs. 39,65,29,595/- as per the Original Complaint No. 370 of 2014.

¶306

05.01. M/s. SRB Developers PRS Enterprises A/c No. 1,15,00,000/ Advances to SRB 596/16
2008 1537 of GBCB Bank - Developers
and
16.08. And Note: These monies
2008 were invested in
PRS Enterprises A/c No. ownership flats by the
1576 of GBCB Bank Nilesh Thakur Group
and the same were paid
to to M/s SRB
Developers as advances
/ deposit for purchase of
these flats.

¶307

As per settled law, being innocent party and untainted money, the said purchases/investments cannot be termed as money laundering as defined under Prevention of Money Laundering Act, 2002 as the money used for purchase of land/ flats, cars or to invest in fixed deposits are not proceeds of crime as even admitted by the counsel for the respondent that entire money paid to Nilesh Thakur was clear and untainted amount. SPCL is admittedly not arrayed in FIR, no charge-sheet is filed nor any prosecution complaint under PML Act, 2002 is filed against the SPCL.

¶308

Counsel for the Enforcement Directorate (ED) tendered to this Tribunal and furnished to the appellant‟s Counsel, a Compilation of Documents (undated) (COD). At the hearing on 03.10.2018, the Counsel for ED sought to make submissions before this Tribunal on the basis of the purported documents annexed to the COD.

¶309

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¶310

36.1 The same was objected to by the Appellant‟s Counsel since the documents attempted to be brought on record by way of COD, were documents which were produced by the ED for the first time, at the final hearing of the above appeal. The said documents were not part of the record before the Adjudicating Authority who had rendered decision on the Original Complaints filed by the ED based on the Provisional Attachment Orders [PAOs] passed by the Dy. Director of Enforcement.

¶311

36.2. The alleged documents produced by way of COD were not part of the material based on which “reasons to believe” was formed by the Dy. Director of Enforcement for passing the PAOs. It is, therefore, submitted that the alleged documents produced by way of COD cannot be looked into and the ED is not entitled to produce or rely upon the same to oppose the above appeal.

¶312

This Tribunal despite of objection inclines to deal with the alleged documents produced by way of COD are alleged statements of Nilesh Thakur and Nitish Thakur purported to have been recorded by an officer of the ED during the year 2013/2014.

¶313

37.1 The alleged statements were never produced by the ED on any earlier occasion. Some of alleged statements do not appear 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.

¶314

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¶315

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.

¶316

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 Company and the relevant time during the years 2007 to 2010 or even thereafter. There is no person known as Gautam Patel in the employment of the Appellant Company. It is also deposed by him that there is no person by the name of Gautam Patel in the employment of the Appellant Company. The Appellant Company has nothing to do with the formation of Strategic Infrasol LLC and the purported statement of Nitish Thakur in that behalf is completely false, motivated and without basis.

¶317

It was also deposed that there was no material at all before the ED to arrive at a reason to believe that the subject properties were proceeds of crime involved in money laundering. Having realized the same, the ED has tried to bring in at this belated stage, certain alleged documents to somehow ensure confirmation of attachment. The attachment of the subject properties deserves to be revoked, the attachment under the PAOs raised and the properties released from attachment which will be achieved if the above appeals are decided in favour of the Appellant thus setting aside and reversing the orders of the Adjudicating Authority. In view of such position and any response to the said affidavit, the contention of ED cannot be accepted in the absence of any cogent evidence.

¶318

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¶319

It is true as found from the materials placed on record that there was inter-se disputes between two brothers and they were making right and left allegations against each other. Nitish even was making the statement against the SPCL in order to save him from the charges. However, the said allegations have consequences once it was admitted that SPCL has paid clean money to Nilesh who has invested in the properties as per agreement or other for his interest from the amount received from SPCL only. Thus, inter-se fight between two brothers and allegation against SPCL are false and irrelevant on the face of record.

¶320

After the conclusion at the hearing of the above Appeals on 22.11.2018, this Tribunal had required parties to give necessary details, particulars and information relating to the amount of Rs. 40 Crores or thereabouts which had been made over by Kapol Co-op Bank Ltd. [“Kapol Bank”] to the Respondent No. 1/ Enforcement of Directorate [“E.D.”] pursuant to confirmation of the PAO No. 19 /2014 and Original Complaint No. 370 of 2014, whereby, inter-alia, the balances in Bank Accounts and the FDR monies held 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”

¶321

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

¶322

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¶323

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.

¶324

As already mentioned that if the Appeals filed by the Nilesh Thakur Group entities are allowed and the properties attached by way of the various Provisional Attachment Orders issued by the E.D. vacated / raised and the properties freed from attachment, all the properties of which possession has been taken by the E.D. from the Nilesh Thakur Group entities have to be returned by the E.D. In that event, this Tribunal will have to provide and direct the return by the E.D. of these properties.

¶325

As far as the return by the E.D. of the amount of the subject investments is concerned, it is hereby brought to the notice of this Tribunal that Kapol Bank has been in financial trouble for the last two to three years and the Reserve Bank of India [“RBI”] had issued circular / press release dated 31.03.2017 under the provisions of Section 35A of the Banking Regulation Act 1949 read with Section 56 of the Reserve Bank of India Act whereby, inter-alia, the RBI has issued necessary directions concerning Kapol Bank.

¶326

The relevant portion of the circular / press release dated 31.03.2017 is reproduced below for convenience:

¶327

“The Reserve Bank of India (vide directive DCBS.CO.BSD-I/D09/12.22.111/2016-17 dated March 30, 2017) has placed The Kapol Co-operative Bank Ltd., Mumbai Maharashtra, under Directions. According to the Directions, depositors will be allowed to withdraw a sum not exceeding ₹ 3000 (Rupees Three Thousand only) of the total balance held in every saving bank or current account or any other deposit account by whatever name called, subject to conditions stipulated in the RBI Directions. The Kapol Co-operative Bank Ltd will, without prior approval in writing from the Reserve Bank, also not able to grant or renew any loans and advances, make any investment, incur any liability including borrowal of funds and acceptance of fresh

¶328

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¶329

deposits, disburse or agree to disburse any payment whether in discharge of its liabilities and obligations or otherwise, enter into any compromise or arrangement and sell, transfer or otherwise dispose any of its properties or assets except as notified in the RBI directions dated March 30, 2017. The Directions have been issued from the close of business on March 30, 2017.”

¶330

The operation of the circular dated 31.3.2017 has been continued till 31.1.2019 as per the RBI‟s subsequent circular / press release dated 27.7.2018. Thus RBI has severely restricted Kapol Bank‟s operations and restricted it from making payment in discharge of its liabilities. 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.

¶331

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.

¶332

The Consent Decree is under execution by SPCL in the proceedings of Execution Application No. 1580 of 2015 filed by SPCL against Nilesh Thakur and Others in the Bombay High Court as has also been stated by the Nilesh

¶333

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¶334

Thakur Group entities in the proceedings of the above Appeals. Under the Consent Decree Nilesh Thakur Group is required to make payment to SPCL of amounts more that Rs. 350 Crores as of today as per the case of decree-holder. By way of Chamber Summons No. 1554 of 2016 filed in the proceeding of the Execution Application, SPCL has specifically sought Orders against the E.D. relating to the amounts of the subject investments with Kapol Bank which have been lying with the E.D. since June 2015. The E.D. has been made party Respondent to the Chamber Summons. The prayer made against the E.D. by way of the Chamber Summons in connection with the amount / monies representing the subject investment amounts is as under:

¶335

“That Respondent No. 1 [being the Deputy Director, Directorate of Enforcement] be ordered and directed by this Hon’ble Court to deposit with the Applicants within two weeks or such other period as may be fixed by this Hon’ble Court the sum of Rs. 38,08,65,613/- [Rupees Thirty eight crores eight lacs sixty five thousand six hundred and thirteen only] along with the amount of interest accrued thereon, both received by the Respondent No. 1 from the Respondent No. 5 Bank [being The Kapol Cooperative Bank Ltd.] being the amounts which were held by the Respondent No. 5 Bank in various Bank Accounts and/or Fixed Deposits standing in the name/s of the Defendants and/or their various entities including the entities listed in the Schedule of this Chamber Summons.”

¶336

SPCL had already asserted its claim to the attached properties as legal and beneficial owner by filing necessary applications with the Adjudicating Authority and has also filed Appeals in connection therewith which have already been heard by this Hon‟ble Appellate Tribunal along with the above Appeals. SPCL is also party Respondent to the captioned Appeals filed by the Nilesh Thakur Group entities.

¶337

In view of the above and in the event the above Appeals are allowed and the attachment on the subject investments is raised, it would be just, necessary and appropriate that the E.D. be ordered and directed by this Tribunal to make over / transfer / pay over the said amount of about Rs. 44 Crores or thereabouts lying with itself, along with all interest accrued thereon, to SPCL for

¶338

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¶339

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.

¶340

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.

¶341

It is an undisputed and accepted fact that the attached properties had been purchased out of funds provided by the Appellant Company / SPCL. The funds provided by Appellant Company/ SPCL to the Nilesh Thakur Group are not proceeds of crime. Hence the attached properties, acquired out of the same, cannot be termed in any manner as “proceeds of crime”. All these factual position is not controverted by the counsel of ED and he admits that nothing contrary is available with ED. In view of admitted fact, I am of the view that the Provisional Attachment Order ought not to have been confirmed by the Adjudicating Authority.

¶342

The Adjudicating Authority failed to appreciate that the finding of the Respondent No. 1 / Org. Complainant regarding layering of transaction is not correct as the flow of untainted money from the Appellant Company/ SPCL and the transfers, for purchase of the properties in question, is not layering with a

¶343

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¶344

view to camouflage the origin of the tainted money. No tainted money is being projected as untainted money and therefore, the finding that there is money laundering is an incorrect finding and is completely perverse and liable to be set aside. The Adjudicating Authority failed to appreciate that the contract between the parties contained in the letters dated 16.7.2007 and 19.7.2007, constitute a legally valid, binding and enforceable contract.

¶345

Both authorities did not understand that it was a clean money. SPCL is an innocent party who is entitled to recover the entire amount. They have just ignored the decree passed by the court without application of mind. They were dealing the matters as SPCL has given tainted money to Nilesh J. Thakur which is generated from proceed of crime, the same is not correct as admitted by the counsel for the respondent. It was submitted by the ED‟s Counsel that the Decree dated 19.10.2011 passed by the Bombay High Court in Suit No.2576 of 2011 is a Consent Decree and not a Decree on contest and, therefore, the Consent Decree ought not to be looked into by this Authority.

¶346

The Consent Decree is as much a Decree as a Decree in invitum (meaning a Decree passed on contest) and has the same legal effect and trappings as a Decree passed in invitum. Both Decrees have the trappings of finality and operate as res-judicata on the matters covered by the Decree and the issues decided by the Consent Decree cannot be re-agitated in subsequent proceedings. ( See judgement of the Hon’ble Supreme Court in Shankar Sitaram Sontake v. Balkrishna Sitaram Sontakke, 1995 SCR 99 )

¶347

No Suit will lie for setting aside a Consent Decree (see Order XXIII Rule 3A of the Code of Civil Procedure, 1908). The law and statutory provisions is clear that a Consent Decree has the same

¶348

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¶349

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.

¶350

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 Appellant.

¶351

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 filed by the ACB, Thane on 15.03.2014 against Shri Nitish Thakur, Nilesh Thakur and others [including their family 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‟sCharge Sheet are the adverse observations made by the Assessing Officer under the Income Tax Act. The Assessing Officer‟s observations and Order were set aside on Appeal by the Appellant to the CIT (Appeals) and on further Appeal by the Income Tax Department, the Order and Judgment of the CIT (Appeals) was confirmed by ITAT.

¶352

The basis and foundation of the ACB‟s Charge Sheet has been dis-approved. The adverse observations of the Assessing Officer in the assessment of the Appellant no longer survives once the CIT (Appeals) Order which has been confirmed by the ITAT.

¶353

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¶354

It is wrong to hold that the Orders of the Income Tax Authorities have no connection with the proceedings under the PML Act. The contention of the ED is misconceived, contrary to the record and was incorrectly held by the Adjudicating Authority without consulting law and application of mind by way of the impugned Orders whereby the PAO‟s were confirmed.

¶355

The payments under the said agreement/contract made to Nilesh Thakur has no connection with Nitish Thakur, who was a Government servant. Simply because Nilesh Thakur is the brother of Nitish Thakur, the money paid by the Appellant Company to Nilesh Thakur and the properties acquired from the said money cannot be treated as disproportionate assets in the hands of Shri Nitish Thakur. Even counsel for the respondent no. 1 has admitted that there is no cogent evidence gathered to the effect which may link SPCL and Nitish Thakur directly or indirectly and any evidence to show where the SPCL has tried to take any favour from Nitish who was the Government employee.

¶356

A perusal of the Charge Sheet filed by the ACB, Mumbai would show that the properties acquired by Nilesh Thakur [from the monies made available by the Appellant Company] has been treated to be the disproportionate assets of Nitish Thakur without any basis whatsoever.

¶357

With regard to the objection about Nitish Kumar‟s link and nexus with his brother regarding the purchase of property with his hold as he was the Government employee, in fact, the Appellant Company has absolutely no concern or connection with Nitish Thakur (brother of Nilesh Thakur). The monies paid by the Appellant

¶358

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¶359

Company to Nilesh Thakur could not have had any connection with Nitish Thakur. The Appellant had filed an additional affidavit of Mahesh Gursale, Deputy Manager of SPCL pointed out factual position along with document evidence. There is no contrary evidence produced by ED. The counsel for ED maintain the silence once the documents were confronted with him.

¶360

The said details are as follows:-

¶361

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.

¶362

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.

¶363

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 letters of Divisional Commissioner, Konkan Division dated January and February, 2010, which are also annexed with the appeal.

¶364

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¶365

It is clear that Shri Nitish Thakur has not attended office effectively from 02.12.2002 and has barely discharged any official duties as a public servant from said date. He was also subsequently placed under suspension and removed from service in 2012. The said affidavit would show that Nitish Thakur was a Government servant in the State of Maharashtra from 1994, but he has been absent from duties right from December, 2002. Nitish Thakur did not discharge any official function from December, 2002 onwards.

¶366

The Appellant Company paid money to Nilesh Thakur Group for purchase of properties in the year 2007 to 2009. Obviously, the said payments cannot and did not have had any nexus with Nitish Thakur. When Nitish Thakur has not been attending office from December, 2002, the payments made by the Appellant Company to Nilesh Thakur (in 2007 to 2009), could not have had any nexus with the discharge of duties by the public servant. Therefore, it is clear and evident that the properties standing in the name of Nilesh Thakur Group have been wrongly and illegally treated as disproportionate assets of Nitish Thakur and have been wrongly attached by the complainant.

¶367

The properties have been acquired out of the funds of this Appellant, for the Appellant, under the legal agreement. The payments made by the appellant Company to Nilesh Thakur Group had nothing to do with Nitish Thakur. The attached properties are of the legal and beneficial ownership of the Appellant and those cannot be treated as alleged disproportionate assets of Nitish Thakur.

¶368

The Respondent No. 1 / mainly in the Original Complainant in the Provisional Attachment Orders was formed on the foundation that the Charge Sheet submitted by ACB states, inter-alia, that the income has been rejected by

¶369

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¶370

the Income Tax department as legitimate income in the form of receipt of funds for land aggregation.

¶371

The reasonable belief was formed in view of the findings of investigation by ACB that the said amounts are nothing but proceeds of crime in terms of Section 2 (1) (u) of PMLA. The Adjudicating Authority failed to appreciate that the Income Tax Appellate Tribunal [“ITAT”] by its Order dated 10.4.2015 passed in the proceedings of Income Tax Appeal Nos. 5766 and 5767 of 2013 filed 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.

¶372

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.

¶373

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.

¶374

The PAO‟s issued by the Directorate of Enforcement which were subject matter of the Original Complaints from which the above Appeals arise, are based on the following alleged scheduled offences under the PMLA:

¶375

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¶376

(i) The scheduled offences concerning Original Complaint Nos. 140 of 2012, 169 of 2012 and 147 of 2013. These relate to offences under Sections 387, 467, 471 and 420 of the IPC.

¶377

(ii) The scheduled offences concerning Original Complaint Nos. 370 of 2014, 408 of 2014, 465 of 2015, 495 of 2015, 512 of 2015 and 596 of 2016. These relate to offences under Sections 109 IPC, 13(2) r/w 13(1)(e) of the Prevention of Corruption Act [“the POC Act”].

¶378

The Appellant / SPCL had advanced to the Nilesh Thakur Group a total sum of Rs. 141.50 Crores from September 2007 to August 2009. A sum of Rs. 111.50 crores was advance between the period 26.9.2007 to 1.6.2009 while the remaining Rs.30 Crores was advance after 1.6.2009. It is the case and contention of the ACB that the advances / payment by SPCL of the said amount of Rs. 141.50 Crores to the Nilesh Thakur Group, constitutes an offence committed by Nilesh Thakur and Ors. under the provisions of Section 13 of the POC Act. Pertinently, the said offence under the POC Act came to be notified as a scheduled offence under paragraph 5 of Part A of the Schedule of the PMLA only by way of the PMLA Amendment Act of 2009 which was brought into force only on 1.6.2009.

¶379

Thus, the legal position is that the purported offence under Section 13 of the POC Act was not a predicate / scheduled offence under the PMLA prior to 1.6.2009 and since the Appellant / SPCL had advanced monies to Nilesh Thakur Group to the tune of Rs. 111.50 Crores prior to 1.6.2009, the provisions of PMLA could not have been applied to the said monies or the properties acquired out of the same and the said monies / properties cannot be treated as proceeds of crime for the purposes of the PMLA.

¶380

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¶381

Thus, it was beyond the jurisdiction of the authorities under the PMLA to issue PAO‟s or file Original Complaints in respect of the said monies of Rs. 111.50 Crores or the properties acquired out of the same.

¶382

[76. It is evident that the action of the Directorate of Enforcement is in violation of Article 20(1) of the Constitution of India which protects a citizen from being subjected to any penalty greater that what might have been inflicted under the law in force at the time of the commission of offence.

¶383

Thus, issuance of PAO‟s or attachment in respect of the said monies of Rs. 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.

¶384

In the light of above, there is absolutely no connection between the monies paid by the Appellant to Nilesh Thakur and the discharge of public duties by the brother of Nilesh Thakur [Nitish Thakur]. Nitesh Thakur had effectively not discharged any public duties since 2002.

¶385

The Enforcement Directorate has incorrectly attached the properties standing in the name of Nilesh Thakur Group only by making a bald statement that they are disproportionate assets of Nitesh Thakur. The said properties are of beneficial ownership of the Appellant.

¶386

The Appellant is entitled to the said properties to ensure that the said properties come back to the Appellant and has filed Execution Application for enforcement of the Consent Decree.

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¶388

However, the attachment made by the Enforcement Directorate is coming in the way of the Appellant enforcing the said Decree against Nilesh Thakur.

¶389

Therefore, in the light of above, all appeals filed by the appellants are allowed, all orders under appeal are set-aside. The provisional attachment orders are also quashed. All the attached properties, movable and immovable properties, are released forthwith.The entire amount detained by ED shall be refunded to the appellant with interest already accrued forthwith.

¶390

In view of allowing the appeals filed by EPCL, the appeals filed by SRB Developers being no. FPA-PMLA-1491/MUM/2016 and three appeals no. FPAPMLA-1220, 1221 & 1213/MUM/2016 filed by Kalyan Groups are also allowed in view of respective finding on the basis of facts arrived. The amount deposited by SRB Developers shall be refunded by the ED along with interest already accrued to the SPCL within one week from today.

¶391