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TMI Blog2019 (12) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... s in accordance with the terms and conditions i.e. after development of the land etc. and what happens to the maintenance aspect. In fact, we are told by the learned counsel for the SEBI that a large number of plots are still being maintained by the appellant which is not disputed. If that be the case the contention that land parcels have been handed over to the investors as ultimate beneficiaries and as full and final transfer is not correct. Therefore, in the absence of appropriate and complete evidence relating to full refund of the investors' amount, either in the form of money or in the form of developed land and maintenance amount we are unable to interfere with the impugned directions in the various orders. - Appeal No. 49 Of 2017 - - - Dated:- 18-10-2019 - Justice Tarun Agarwala, Presiding Officer, Dr. C.K.G. Nair, Member And M.T. Joshi, Judicial Member Somasekhar Sundaresan, Adv. and Amey Nargolkar, Adv. for the Appellant. Gaurav Joshi, Sr. Adv., Mihir Mody and Sushant Yadav, Advs. for the Respondent. ORDER Dr. C.K.G. Nair, This appeal has been filed aggrieved by various orders and recovery certificates is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent dated February 26, 2013. Pursuant to this, a recovery certificate (no. 847 of 2015) was issued by the Recovery Officer of SEBI on December 30, 2015 which was challenged by the appellant in Appeal No. 383 of 2016. This Tribunal allowed the appellant to withdraw the said appeal on January 10, 2017 with liberty to file a fresh appeal. The present appeal before us is the same filed by the appellant on February 3, 2017 thereby challenging various directions relating to depositing specific amount and/or various directions relating to attachment and/or alienating the properties etc. 4. The basic contention of the appellant is that it was conducting a genuine weekend farming business wherein 891 contributors provided funds for acquisition of land, developing it and transferring it to the contributors. A total sum of ₹ 23.44 crore was collected from these 891 contributors. Vide its order dated November 23, 2003 SEBI held that the scheme mooted by the appellant was a CIS and directed that the contributions made to the scheme must be returned. Though the appellant has challenged this order questioning the decision that it was a CIS the same was dismissed by this Tribunal an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied for and obtained an initial/provisional registration from SEBI for the scheme. 7. Learned counsel for the appellant further contended that the objective of Section 226 of the Income Tax Act, 1961 is not to be dogmatic about the certificate once drawn up; the Recovery Officer has the power to cancel or modify the certificate issued by him in the case of fresh evidence. Therefore, when 690 contributors were actually provided with parcels of land through registered sale deeds and some of those who received the land have further sold those land pieces (105 of the 690) and made profits with an appreciation of 422% of the amounts contributed by them, the Recovery Officer could not have directed refund of the amount collected from these contributors. One cannot direct to give the land as well as to return the amount collected for the same. Further, 122 contributors have been paid cash soon after the SEBI order in 2003. 8. As regards the remaining 79 contributors with a total due of ₹ 2.37 crore the said amount has been deposited with the Recovery Officer. In addition, title deed for free and marketable land worth ₹ 5.95 crore has also been deposited with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on this Tribunal's order in the case of PACL Ltd. v. SEBI [2015] 60 taxmann.com 285/132 SCL 1 (Sat. - Mum.) 11. In 2003 the appellant never stated that part of the amount collected was returned to the investors in cash nor they had given any land, neither before SEBI nor when they came on appeal before this Tribunal. Such a stand was not taken even before the Supreme Court. After more than 16 years, in the present appeal, they are taking this stand for the first time. Therefore, the submissions of the appellant lack veracity and credibility. Multiple opportunities have been given to them to show the relevant documents to SEBI. What is available on the other hand is evidence relating to the fact that the land supposedly given to 690 investors are mostly being held under the overall management of the appellant. In this context, it is important to note that the amount collected for buying, developing and maintaining the land and what is supposed to be returned in the form of land is only the raw land, not the developed one as per the scheme floated. Therefore, the appellant's contention that money or land has been given to majority of the investors and therefore the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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