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Judgment
,,,,
Manmohan Singh, J",,,,
FPA-PMLA-937-941, 1000-1012, 1112-1116/MUM/2015",,,,
The detailed separate judgement has been delivered in the ten appeals being no. 1104/2015 and others. Most of the facts and legal issues are,,,,
common. Thus the said judgement may also be read with the present judgement being passed in the above twenty three appeals filed by Nilesh J.,,,,
Thakur against various impugned orders passed by the Adjudicating Authority who has confirmed the provisional attachment orders. The details are,,,,
mentioned in the facts of the case.,,,,
Shri Nilesh J. Thakur has filed independent appeals challenging the impugned orders as well as provisional attachment orders. On his behalf,",,,,
separate arguments are addressed, however, on many facts and legal issues, he supported the case of SPCL. He has also narrated the facts as per his",,,,
own.,,,,
As per him, the facts are:-",,,,
a) M/s Shapoorji Pallonji & Co Ltd (“SPCLâ€) is a company engaged in real estate and construction business. In order to build a “land bankâ€,,,,
in various parts of the State of Maharashtra that were likely to see commercial development and, anticipating a future upward trend in land prices in",,,,
these areas, SPCL hired the services of the Appellant (Nilesh J. Thakur) to assist it in the process of acquisition of lands.",,,,
b) On 16.07.2007, SPCL issued a detailed offer letter to the Appellant for purchase of around 900 acres of land at the maximum price of Rs.",,,,
30,00,000/- per acre in different parts of Maharashtra within a period not exceeding five years",,,,
c) The said offer was accepted by the Appellant, Nilesh J. Thakur by letter of acceptance dated 19.07.2007.Upon exchange of offer and acceptance,",,,,
a legally binding and valid contract came to be formed between SPCL and the Nilesh J. Thakur.,,,,
d) Between 26.09.2008 and 21.07.2008, Nilesh J. Thakur received from SPCL, a sum of Rs. 87.5 Crore as a loan/advance for the purchase of lands",,,,
as specified in the contract between the parties. These funds were received through normal banking channels, in the form of cheques/drafts drawn on",,,,
Standard Chartered Bank and Deutsche Bank accounts of SPCL.,,,,
The cheques were deposited on various dates in the account of M/s PRS Enterprises (sole proprietary concern of Nilesh J. Thakur) held with Greater,,,,
Bombay Coop. Bank, Andheri, Mumbai A/c No. 1537. Statement of Account are filed in appeal no.FPA-PMLA NO. 941 of 2015.",,,,
e) Similarly, between 04.11.2008 and 18.08.2009, Nilesh J. Thakur received from SPCL, a further sum of Rs. 57 Crore as an advance for the",,,,
purchase of lands as specified in the contract between the parties.,,,,
f) These cheques were deposited in the account of M/s Ace Card Infrasol Pvt. Ltd (AIPL), which is a private limited company under the ownership",,,,
and control of Nilesh J. Thakur. These accounts were held with Greater Bombay Coop. Bank and Union Bank. Statement of Account are filed in,,,,
Appeal No. 941 of 2015. In this manner, and for the abovementioned purpose, Nilesh J. Thakur and/or his firms received a total sum of about Rs.",,,,
141.5 Crores from SPCL.,,,,
g) During the year 2008-2020, in furtherance of the contract with SPCL, Nilesh J. Thakur purchased various movable and immovable properties with",,,,
the funds received from SPCL. Since all the funds could not be directly invested in land as required by the contract, investments were made by Nilesh",,,,
J. Thakur either by himself or through his group entities. These investments fell into three broad categories:-,,,,
(i) Purchase of immovable property, including land, built-up residential and commercial buildings, etc.",,,,
(ii) Investment in fixed deposits in name of Nilesh J. Thakur or his group entities.,,,,
(iii) Movable property including bank balance and few vehicles.,,,,
h) By separate letters dated 22.03.2010, Nilesh J. Thakur, acting for PRS Enterprises and AcecardInfrasol Pvt. Ltd., assured SPCL that immovable",,,,
properties purchased by him along with unutilized funds would be transferred to SPCL in due course.,,,,
i) FIR NO. 56/2011 registered against Nitesh J. Thakur and Nilesh J. Thakur, Santosh Konekar, Sunil N. Bhayade, Ganibhai and Smt. Jayshree",,,,
Narayan Shesan on a complaint filed by Shri Mukesh Waghela and two others under Section 387, 467, 471 & 420 of the IPC on 7.2.2011.",,,,
j) Charge Sheet No. 403/PW/2011 filed before the ACMM 37th by the Mumbai Police on 7.5.2011after completion of Investigation wherein it was,,,,
held that Nitish Thakur, a Public Servant had undertaken the job of Project Management Consultancy in respect of a redevelopment project of 56",,,,
acres of land in Samata Nagar, Kandivali on behalf of SD Corporation in the name of PRS Enterprises with Sudhanshu Khot as the proprietor.",,,,
Mukesh Waghela and Panduranga Thakur were engaged to undertake a liasoning job for the said project with 5% commission to each (Demanded,,,,
Rs. 14.80 Crores being 10% of total amount of Rs. 148 Crore),,,,
k) SPCL filed Suit No. 2576 of 2011 before the Honâ€ble Bombay High Court against PRS Enterprises &Ors. Seeking inter alia, the following reliefs:",,,,
i) Payment of a sum of Rs. 219,39,19,165/- along with interest @ 18% p.a. on the principal amount of Rs. 141,500,000/-.",,,,
ii) Declaration that there is a valid, enforceable agreement between the defendants and the Plaintiffs whereby the defendants are bound to handover",,,,
and transfer the immovable properties and FDs, cars, monies standing to the credit of the bank accounts.",,,,
iii) Transfer of immovable properties in favour of the Plaintiff. Copy of plaint dated 06.09.2011 is filed in FPA-PMLA NO. 941 of 2015.,,,,
l) The parties entered into consent terms on 19.10.2011 in Suit No. 2576 of 2011, whereby Nilesh J. Thakur admitted his liability to return the amount",,,,
loaned/advanced to him. The Bombay High Court has passed the decree the Suit No. 2576 of 2011in terms of the above vide its consent decree dated,,,,
19.10.2011 and, inter alia, directed the Defendant No. 3 therein (Nilesh J. Thakur) to refund the monies to SPCL and hand over any properties",,,,
purchased with the fund of Rs 141.5 crores received from SPCL.,,,,
m) FIR dated 14.3.2012 was registered, by the Anti-Corruption Bureau [“ACBâ€] under Sections 1 (1)(e) & 13 (2) of the Prevention of",,,,
Corruption Act read with Section 109 of the IPC, inter-alia, against Nitish J. Thakur, the brother of Nilesh J. Thakur, alleging that Nitish J. Thakur had",,,,
amassed disproportionate assets to the tune of Rs. 118.39 Crores during his tenure as an officer of the Government of Maharashtra.,,,,
n) Provisional Attachment Order (PAO) No. 3/2012 passed in Original Complaint (OC) No. 140/2012 on 17.04.2012.,,,,
o) Respondent No. 1 [Dy. Director of Enforcement] initiated the present proceedings under the PML Act 2002 and registered a complaint being,,,,
ECIR No. 6/MZO/2012 dated 18.06.2012 under Sections 3 and 4 of the PMLA.,,,,
p) Impugned Order passed by the Respondent No. 1 in OC No. 14140/2012 on 31.08.2012 thereby confirming the attachment of the following,,,,
properties of the Appellant in PAO No. 3/2012 dated 17.04.2012:,,,,
i) Shop No. 9, Shri Complex, B Wing, Borivali West, 300 Sq. Ft purchased in the name of Nilesh Thakur valued at Rs. 21 Lakhs (Agreement dated",,,,
20.05.2008); [Subject matter of Consent Decree],,,,
ii) Flat No. 1D/201, 2nd Floor, NG Sun City, Kandivali East admeasuring 394.46 Sq. ft in the name of Nilesh Thakur valued at Rs. 39.54",,,,
Lakhs(Agreement dated 18.01.2008); [Subject matter of Consent Decree],,,,
iii) Hotel Shoreline, Darbar Road, Janjira admeasuring 700 Sq. Mts in the name of PRS Enterprises valued at Rs. 1.80 Crores (Agreement dated",,,,
01.11.2007);,,,,
iv) Office of Aishwarya Properties at Vandana CHSH, Alibaug -670 Sq. ft in the name of Nilesh Thakur valued at Rs. 11 Lakhs (Agreement dated",,,,
21.05.2008);,,,,
v) Land 0-49-2 at Village Dhokawade, Taluk, Dighodi, Distr. Alibaug with 2 houses No. 540 (area 741 Sqft) and No. 1663 (area 500 Sqft) in the name",,,,
of N.J. Thakur valued at Rs. 3.44 Crores (Agreement dated 19.03.2008);,,,,
vi) Gala No. 1 & 2, Puja CHS, Alibaug admeasuring 662 Sqft in the name of N.J. Thakur value at Rs. 24 Lakhs (Agreement dated 11.09.2008)",,,,
Following property of Ace Card Trading Pvt. Ltd. was attached:,,,,
vii) Bungalow No. 62/65, Gorai, Borivili West, Mumbai, 103.70 sqMtrs valued at Rs. 74 Lakhs (Agreement dated 30.08.2012);",,,,
TOTAL VALUE OF PROPERTIES- RS. 6,93,94,170/-",,,,
Against the Impugned Order 31.08.2012, Nilesh Thakur has preferred FPA-PMLA NO. 937/2015 and Ace Card Trading Pvt. Ltd. has",,,,
preferred FPA-PMLA NO. 1001/2015.,,,,
q) Provisional Attachment Order (PAO) No. 7/2014 passed in Original Complaint (OC) No. 169/2012 on 27.11.2012.,,,,
r) Provisional Attachment Order (PAO) No. 2/2013 passed in Original Complaint (OC) No. 174/2013 on 24.01.2013.,,,,
s) In assessment proceedings under the Income Tax Act concerning SPCL, the Assessing Officer [“the ITOâ€] had passed Order dated 11.2.2013",,,,
wherein the ITO had expressed doubt about the nature of transactions relating to the payments made by SPCL to the Appellant, Nilesh J.",,,,
Thakur/PRS Enterprises for the purpose of acquisition of land under the contract between the parties.,,,,
t) Impugned Order passed by the Respondent No. 1 on 05.04.2013 in OC No. 169/2012 thereby confirming the attachment of the following properties,,,,
of the Appellant in PAO No. 7/2014 dated 27.11.2012:,,,,
i) City Survey No. 73, Hissa No. 0.30.6, City Survey 1009, Alibag-Rs. 39 Lacs",,,,
ii) Plot no. 191/17.1 opposite Koteshwari Temple, Murudjanjira-Rs. 45.1 Lacs",,,,
iii) Shop No. 9, Parmar Complex, Pali- Rs. 4.9 Lacs",,,,
TOTAL VALUE OF PROPERTIES-Rs. 89,00,000/-",,,,
Against the Impugned Order 05.04.2013, Nilesh Thakur has preferred FPA-PMLA No. 940/2015.",,,,
u) In Appeal against the abovementioned Income Tax Assessments, the CIT [Appeals] after considering all documents and records, by its Order",,,,
dated 17.5.2013 found that the transactions between SPCL and the Appellant were “advances for purchase of land†and as such were made for,,,,
legitimate business purpose under the contract between the parties. The CIT (Appeals) allowed SPCLâ€s Appeal for A.Y.s 2008-09, 2009-10 and",,,,
2010-11.,,,,
v) Impugned Order passed by the Respondent No. 1 on 21.06.2013 in OC No. 174/2013 thereby confirming the attachment of the following,,,,
immovable properties of the Appellant in PAO No. 2/2013 dated 24.01.2013:,,,,
• Immovable properties admeasuring 76.62 acres (30.64.6 hectares) in the following villages of Alibaug:,,,,
a) 26.91.40 hectares in village Waghvira;,,,,
b) 3.41.3 hectares in village Chikali;,,,,
c) 0.31.9 hectares in village Hemnagar,,,,
• The Bank accounts from which the amount was debited for the purchase of the above lands forms part of the Consent Decree,,,,
TOTAL VALUE OF PROPERTY- Rs. 19,19,25,000/-",,,,
PROCEEDS OF CRIME- Rs. 5,27,52,859/-",,,,
Against the Impugned Order 21.06.2013, Nilesh Thakur has preferred FPA-PMLA NO. 938/2015.",,,,
w)ACB, Thane filed Charge Sheet bearing No. 5/2014 on 15.3.2014, inter-alia, against Nitish J. Thakur and his family members under Sections 13 (1)",,,,
(e) & 13 (2) of the Prevention of Corruption Act read with Section 109 of the IPC. In the charge sheet, it was alleged that properties purchased by",,,,
Nilesh J. Thakur and his group concerns out of the Rs. 141.5 Crores advanced by SPCL to him, were the disproportionate assets of Nitish J. Thakur",,,,
(brother of Nilesh J. Thakur).,,,,
The Provisional Attachment Order (PAO) No. 19/2014 passed in Original Complaint (OC) No. 370/2014 on 30.09.2014.The Provisional Attachment,,,,
Order (PAO) No. 23/2014 passed in Original Complaint (OC) No. 379/2014 on 31.12.2014.,,,,
x) The Impugned Order was passed by the Respondent No. 1 in OC No. 370/2014 on 1.1.2015; thereby confirming the attachment of the following,,,,
properties of the Appellant in PAO No. 19/2014 dated 30.09.2014:,,,,
• Immovable properties admeasuring 76.62 acres (30.64.6 hectares) in the following villages of Alibaug:,,,,
a) 26.91.40 hectares in village Waghvira;,,,,
b) 3.41.3 hectares in village Chikali;,,,,
c) 0.31.9 hectares in village Hemnagar,,,,
• Total valued at Rs. 19,95,25,000/- out of which Rs. 5,27,52,859/-already attached by POA 3/2011.",,,,
• TOTAL IMMOVABLE- RS. 13,91,72,141/-",,,,
Movable Properties,,,,
(Bank A/c with Balance as on 08.09.2014):,,,,
• KAPOL- 5330 (Rs. 2862.64/-) [Ace Card HR],,,,
• KAPOL- 5326 (Rs. 166.76/-) [Ace Card Export],,,,
• KAPOL- 233 (Rs. 46,20,179.23/-) [Ace Card Export]",,,,
• KAPOL- 5392 (Rs. 98,71,770.97/-) [Dhan Shree Trading]",,,,
• GBCB-10216009856(Rs.18,64,100.75/-) [Ace Card Infr.]",,,,
• GBCB-FD-30201322722(Rs.1,32,90,421/-) [Ace C. Infr]",,,,
• KAPOL- 5296 (Rs. 757.88/-) [Ace Card Infrasol],,,,
• UBI- 441601010036441 (Rs. 13,219.5/-) [Ace C. Infr]",,,,
• UBI- 546410110050207 (Rs. 1,00,000/-) [Ace C. Infr]",,,,
• KAPOL- 5328 (Rs. 3,32,393.07/-) [Ace Card Power]",,,,
• KAPOL- 230 (Rs. 15,39,810.23/-) [Ace Card Power]",,,,
• KAPOL- 5329 (Rs. 182.76/-) [Ace Card Media],,,,
• KAPOL- 231 (Rs. 15,39,801.23/-) [Ace Card Media]",,,,
• KAPOL- 5332 (Rs. 50,31,732.65/-) [Ace Card Const.]",,,,
• KAPOL- 211 (Rs. 25,02,710.87/-) [Ace Card Const.]",,,,
• KAPOL- 5331 (Rs. 182.76/-) [Ace Card Hotels],,,,
• KAPOL- 232 (Rs. 15,39,810.3/-) [Ace Card Hotels]",,,,
• KAPOL- 5327 (Rs. 7859.57/-) [Ace Card Agro Ind.],,,,
• HSBC-3014412001(Rs.3,18,519.66/-) [Ace C. Agro Ind.]",,,,
• KAPOL- 5295 (Rs. 36,90,134.58/-) [Ace Card Trading]",,,,
• KAPOL- 5333 (Rs. 675.76/-) [Ace Card Reality],,,,
• KAPOL- 212 (Rs. 76,99,480.87/-) [Ace Card Reality]",,,,
TOTAL VALUE OF PROPERTIES- Rs. 53,57,01,736/-",,,,
Against the Impugned Order 01.01.2015 the following appeals have been preferred:,,,,
Impugned Order,POA No.,Date of POA,OC No.,Appeals filed
31.08.2012,3/2012,17.04.2012,140/2012,"i . FPA-PMLA
937/2015
i i . FPA-PMLA
1001/2015
21.06.2013,2/2013,24.01.2013,174/2013,"i . FPA-PMLA
938/2015
01.04.2015,23/2014,31.12.2014,408/2015,"i . FPA-PMLA
939/2015
i i . FPA-PMLA
1000/2015
Impugned Order,POA No.,Date of POA,OC No.,Appeals filed
27.08.2015,13/2015,26.03.2015,465/2015,"i . FPA-PMLA1113-
1115/2015
27.08.2015,16/2015,31.03.2015,495/2015,"ii.
FPAPMLA1112/2015
i i i . FPA-PMLA
1116/2015
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",
280174,10.03.2008,"Rs.10
crores","Standard
Chartered/Mumbai
Metro Main Branch",
117653,07.04.2008,Rs.16.5 crores,"Standar
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
=========",,
Mr.Neeraj Atri who is appearing on behalf of the respondent has argued the above appeals and other connected appeals filed by Shapoorji Pallonji,,,,
& Co. Pvt. Ltd. as well as Kalyani Education Pvt. Ltd.by stating that, no doubt, the amount paid by SPCL is untainted amount who is also innocent",,,,
party against whom no proceedings are pending. It is submitted by him that SPCL is the victim and is merely a lender to Nilesh J. Thakur. However,",,,,
his argument is that Nilesh J. Thakur has signed the agreement with SPCL mainly in order to purchase the various properties at the instance of SPCL,,,,
by taking the favour/ advantages from his brother, Nitish J. Thakur, who was the Government servant and he could have helped Nilesh J. Thakur to",,,,
purchase the properties. He has also referred various statements made by Nitish J. Thakur against his brother and SPCL. The said issue has already,,,,
been discussed in the batch of appeals filed by SPCL. The same may also be read as part of this judgement.,,,,
From the entire material available on record, it appears to this Tribunal that whatever property Shri Nilesh J. Thakur has purchased on behalf of",,,,
SPCL or invested money for himself and his associate group of company, the said money is invested by Nilesh Thakur which is received from SPCL.",,,,
There is no direct or indirect evidence available on the record that SPCL has ever taken the favour of the position of Nitish J. Thakur.,,,,
No doubt, it appears that there is inter-se dispute between the two brothers. Nitish J. Thakur has been making statements against the SPCL also but",,,,
from the record, it appears that it was merely the allegation raised by Mr. Nitish J. Thakur in order to save his skin from the various authorities",,,,
initiated against him, but the fact remains that the entire money is owned by SPCL. The inter-se dispute between two brothers cannot be decided in",,,,
the present cases. Similarly, the inter-se dispute between the Nilesh J. Thakur and Kalyani Education Pvt. Ltd. and the connected matters, the same",,,,
can only be determined in other forum in accordance with law. The scope of these cases is very limited as to whether the amount paid by SPCL to,,,,
Nilesh J. Thakur is tainted amount or it is a proceed of crime. No such evidence is available on record. Even Mr. Atri admits that it is a clean money,,,,
and is not a proceed of crime and no case is made out against SPCL for prevention of money laundering.,,,,
As far as the next argument of Mr. Atri with regard to the orders dated 30.12.2010 passed by the Assessing Officer which is helping the case of ED,",,,,
the same has already been set- aside by the Order and Judgement dated 10.4.2015. passed by the ITAT.,,,,
Admittedly, as the performance of the Appellant had not proceeded satisfactorily, SPCL filed a suit before the Bombay High Court being Suit No.",,,,
2576 of 2011 [SPCL Vs. Nilesh Thakur &Ors.]. The Bombay High Court, by its consent decree dated 19.10.2011 directed the Defendant No. 3 to",,,,
refund the monies to SPCL and hand over any properties purchased with the fund of Rs 141.5 crores received from SPCL. It may be noted that even,,,,
under the Contract between the parties dated 19.07.2007, the Appellant was obligated to refund the amounts to SPCL in event of his failure to",,,,
perform the contract.,,,,
Under the consent decree dated 19.10.2011, the Appellant is bound to return the monies and properties as directed by the Honâ€ble Bombay High",,,,
Court. However, as a result of the attachment in the present proceedings, the decree of the Honâ€ble Bombay High Court could not be given effect to",,,,
by the Appellant and the present proceedings come in the way of the Appellant discharging his liabilities under the binding decree passed by the,,,,
Honâ€ble High Court. It may be noted that the properties named in the schedules to the decree passed by the Bombay High Court are the same as,,,,
the subject properties in the present cases.,,,,
Hence, on the face of record, subject properties purchased under a valid and binding contract, the Appellant is under obligation to return the",,,,
funds/properties under a legal and valid decree passed by a court of competent jurisdiction i.e. the Honâ€ble Bombay High Court.,,,,
It is not denied by the respondent that the decree of the Honâ€ble Bombay High Court was passed much before the filing of FIR by ACB, Thane,",,,,
and also prior to commencement of proceedings by Respondent No. 1. Hence the mutual inter-se obligations between the Appellant and SPCL had,,,,
crystallized much before the commencement of criminal proceedings, and are therefore beyond the pale of suspicion.",,,,
The PAOâ€s issued by Respondent No. 1 are based entirely on the provisions of the Charge Sheet filed by the Anti Corruption Bureau. Raigad,,,,
[“ACBâ€] which Charge Sheet in turn is based on the findings recorded by the Assessing Officer [ITO] under the provisions of the Income Tax,,,,
Act, by way of the Assessing Officerâ€s Orders dated 30.12.2010 [A.Y. 2008-09] and 28.12.2011 [A.Y. 2009-10], whereby, inter-alia, Appellantâ€s",,,,
statement and assertion that the amounts received by the Appellant from Shapoorji Pallonji & Co. Ltd. (“SPCLâ€) were towards land aggregation,,,,
under agreement recorded in letters dated 16.7.2007 and 19.7.2007 [“the subject agreementâ€], was disbelieved and / or rejected and the",,,,
Assessing Officer proceeded to make additions of these amounts to the Appellantâ€s income and taxed the same invoking the provisions of Section 56,,,,
(2)(vi) of the Income Tax Act.,,,,
Against the Orders of the Assessing Officer dated 30.12.2010 and 28.12.2011 referred to above, the Appellant filed First Appeals before the",,,,
Commissioner of Income Tax [Appeals] (“CIT Appealsâ€) who had confirmed the Orders of the Assessing Officer by way of Orders dated,,,,
31.01.2011 and 21.07.2011. Aggrieved by the same, the Appellant had filed Second Appeals with the Income Tax Appellate Tribunal [“ITATâ€]",,,,
being Appeal Nos. I.T.A. No. 3738/Mum/2013 [A.Y. 2008-09] and I.T.A. No. 3739/Mum/2013 [A.Y. 2009-10] which Appeals finally came to be,,,,
decided by the ITAT in November 2017 by way of a common Order and Judgment dated 1711.2017. By way of the said Order and Judgment dated,,,,
17.11.2017, the ITAT reversed the findings of the Assessing Officer and the CIT Appeals and held that the monies received by the Appellant from",,,,
SPCL was a business advance received under the subject agreement and was not income of the Appellant. Therefore, the ITAT set aside the Order",,,,
passed by the CIT Appeals and directed the Assessing Officer [ITO] to delete the addition made under Section 56 (2)(vi) of the Income Tax Act with,,,,
regards to the advance received by the Appellant from SPCL. Thus by the said Order and Judgment the ITAT has confirmed and upheld the,,,,
Appellantâ€s statement and assertion that the monies received by me from SPCL was a business advance under the subject agreement for land,,,,
aggregation and was not income.,,,,
In April 2015, by way of Order and Judgment dated 10.4.2015 passed by the ITAT in the Orders passed relating to the assessment of SPCL, in",,,,
relation to the same transaction under the subject agreement for land aggregation, it was, inter-alia, held by the ITAT that the amounts were advanced",,,,
by SPCL to the Appellant towards legitimate business advances which has been noted by the ITAT bench which delivered the said Order and,,,,
Judgment dated 17.11.2017 on the Appellantâ€s Income Tax Appeals.,,,,
The ITATâ€s earlier Order dated 10.4.2015 had been brought to the notice of the Adjudicating Authority. However, since at that time, the",,,,
Appellantâ€s Appeals were still pending before the ITAT, the Adjudicating Authority had held that there was no corresponding Order in the",,,,
Appellantâ€s case and had held as under.,,,,
“12. The fact remains the issue in case of other Defendants that is Nitish J. Thakur, Nilesh J. Thakur etc. has not been considered",,,,
favourably as on date by the Income Tax Department.â€,,,,
The ITATâ€s Order and Judgment dated 17.11.2017 concerning the Appellantâ€s assessment has upheld his case that the amount of Rs. 141.50,,,,
Crores had been advanced by SPCL to him under the subject agreement for land aggregation and that the properties acquired out of these funds along,,,,
with the remainder of these funds have to be made over by me to SPCL. In that connection, the ITAT has also noted the Consent Decree dated",,,,
19.10.2011 passed by the Bombay High Court. Certified/True Copy of Order dated 17.11.2017 passed by the Honâ€ble Income Tax Appellate,,,,
Tribunal, Mumbai Bench, Mumbai is annexed as Annexure A-10 along with the application which is allowed as these are subsequent events in order",,,,
to decide the real disputes between the parties.,,,,
The said Order and Judgment dated 17.11.2017 of the ITAT has been rendered in November 2017 during the pendency of the present Appeal,,,,
along with other Appeals before this Honâ€ble Tribunal. By reason of the findings in the ITATâ€s Order dated 17.11.2017 [which reiterates the,,,,
findings in the earlier ITAT Benchâ€s Order and Judgment dated 10.4.2015], the entire foundation of the ACBâ€s Charge Sheet and consequently the",,,,
PAOâ€s issued by Respondent No. 1 has fallen and/or is demolished. It is clear from a perusal of the ITATâ€s Order and Judgment that the,,,,
transactions under the subject agreement for land aggregation is legal, valid and legitimately earned monies of SPCL were advanced to the Appellant",,,,
and his group companies for land aggregation and the monies received by the Appellant thereunder cannot by any stretch of imagination be termed as,,,,
proceeds of crime.,,,,
The said Order and Judgment dated 17.11.2017 of the ITAT is a subsequent event which has occurred during the pendency of the above Appeals,,,,
and is important fact and event in order to decide the real controversy between the parties. Therefore, it is vital decision which would go and decide as",,,,
to whether the attachment under the PAOâ€s issued by Respondent No. 1 is to be vacated and the properties covered thereby freed from attachment.,,,,
The said Order and Judgment had not been passed at the time of filing of the present Appeal, otherwise the same could not have been produced",,,,
earlier. The same has not been set-aside by any court as informed by the parties. Therefore, the said subsequent event is taken on record which is",,,,
brought by the appellant. There is also no opposition to this respect by the ED.,,,,
There is no basis for the allegation of the Respondent No. 1 that the funds were tainted proceeds of crime, and that were paid by SPCL to the",,,,
Appellant in consideration for alleged favours done by the Appellantâ€s brother, Nitish J. Thakur while discharging his official functions. Rather,",,,,
during the hearing of appeals, it was admitted on behalf of respondent no. 1 that the funds were not connected to any criminal activities. It was a pure",,,,
money. The Respondent No. 1 does not even allege or specify as to what alleged illegal acts/omission were performed by Respondent No. 1 to favour,,,,
SPCL, in exchange for which the funds were transferred to the Appellant.",,,,
The charges against Nitish J. Thakur are in respect of alleged amassing of assets disproportionate to known sources of income for the period June,,,,
1998 to October 2005 (period of his service), whereas the transfer of funds from SPCL to the Appellant under the contract dated 19.07.2007 took",,,,
place much later i.e. between 26.09.2007 to 18.08.2009.,,,,
The documents on record before this Tribunal establish that at the time when the funds of Rs. 141.5 Crores were transferred by SPCL to the,,,,
Appellant or his group concerns, the brother of the Appellant (Nitish J. Thakur) was not even in government service, leave alone being in a position to",,,,
render any illegal favour to SPCL during the said period.,,,,
The following admitted facts and material already placed on record (including ACB Chargesheet dt. 14.03.2015) would show that from October,,,,
2005 onwards, Nitish J. Thakur was absent without leave from his official duties. He never resumed official duty after this date. On 12.11.2008 he",,,,
was officially given leave without pay from his duties by the Government of Maharashtra. From 07.02.2011, Nitish J. Thakur was placed under",,,,
suspension by the Government of Maharashtra.Nitish J. Thakur was dismissed from government service on 11.07.2012.,,,,
In the light of above, it is clear that there is not even prima-facie evidence produced by the Respondent No. 1 in order to show that the subject",,,,
properties are proceeds of crime and are liable to be attached under the provisions of the Prevention of Money Laundering Act 2002. The question of,,,,
money laundering does not arise in the present case. Subject matter is a civil dispute. It has already been decided by the Bombay High Court by,,,,
passing the Decree. No hindrance of any nature is necessary on the part of ED to frustrate the decree.,,,,
In view of the above submissions, I allow all the appeals. The impugned orders passed by the adjudicating authority are set aside. This Tribunal",,,,
also quash the orders of provisional attachments as against the subject properties. All MPs are disposed of.,,,,