CHAPTER: VI

RECOMMENDATIONS

1. Misuse of exemption on Long Term Capital gains tax for

money laundering ( Reference p. 82-84 of the Third SIT
Report)

This issue was deliberated by SIT during a series of meetings

held on 07t January, 14th March, 08th April and 30th April. In this
regard, it is pertinent to mention the observations of the
Committee headed by Chairman, CBDT on Measures to tackle
Black Money in India and Abroad which submitted its report
in 2012 and which read as follows :3.22 Investments are made in the secondary share markets with
a view to capturing gains. In this market, out of nearly 8,000
listed companies, several scrips are not traded regularly. With the
collusion of

promoters, some brokers arrange for price(s) with

purchase of such scrips at nominal costs, and sales at

exorbitant prices, with a view to receiving money on sale as
capital gain when the long term gain is subjected to a nil or
nominal rate of tax. The advantage for manipulative taxpayer is
that he can launder such sale receipts through payment of no
tax.

SEBI has recently barred

more than 250 entities, including

individuals and companies, from the securities market for

suspected tax evasion and laundering of black money through
stock market platforms.

In one such instance price of a scrip

rose from Rs. 10.20 to Rs. 489 in 150 trading days a rise of
4694% ! The SIT obtained the background details of these cases
and studied them. A typical pattern is observed to be followed in
such cases.
A company with very poor financial fundaments in terms of
past income or turnover is able to raise huge capital by
allotment of

Preferential allotment of shares is made to

various entities.
There is a sharp rise in price of scrip once the preferential
allotment is done. This is normally achieved through
circular trading of shares among a select group of
companies. These group of companies often have common
promoters/directors.
The scrips with thus artificially inflated price are offloaded
through companies whose funding is provided by the same
set of people who want to convert black money into white.

There is an urgent need for having an effective preventive and

punitive action is such matters to prevent recurrence of such
instances.

We recommend the following measures in this regard :

(i)

SEBI needs to have an effective monitoring mechanism to

study such unusual rise of

stock prices of Companies

while such a rise is taking place. We understand that

SEBI has a strong IT infrastructure which can generate
red flags for such instances. Such red flags could be built
upon trading volumes, entities which contribute to
trading volume, financial background of firms through
their annual returns and any other indicators SEBI may
develop. We believe that with effective and timely
monitoring by SEBI a significant number of such
instances can be checked in time.
(ii)

Once such instances are detected, SEBI should invariably

share this information with CBDT and FIU.

(iii)

Barring such entities from securities market would not be

of strong deterrence in itself. In case it is established,
that stock platforms have been misused for taking LTCG
benefits, prosecution should invariably be launched
under relevant sections of SEBI Act. Section 12A read
with section 24 of the Securities and Exchange Board of
India Act 1992 are predicate offences.

(iv)

Enforcement Directorate should then be informed to take

action under Prevention of Money Laundering Act for the
predicate offences.

2. Misuse of Participatory notes for money laundering

(Reference p. 79-81 of Third SIT Report)

The Report of the Committee headed by Chairman, CBDT on

Measures to tackle Black Money in India and Abroad
submitted in 2012 observed as follows :
3.43 A Participatory Note (PN) is a derivative instrument issued
in foreign jurisdictions, by a Foreign Institutional Investor (FII) /
sub-accounts or one of its associates, against underlying Indian
securities. PNs are popular among foreign investors since they
allow these investors to earn returns on investment in the Indian
market without undergoing the significant cost and time
implications of directly investing in the India. These instruments
are traded overseas outside the direct purview of Securities &
Exchange

Board of India (SEBI) surveillance thereby raising

many apprehensions about the beneficial ownership

and the

nature of funds invested in these instruments. Concerns have

been raised that some of the money coming into the market via
PNs could be the unaccounted wealth camouflaged under the
guise of

FII investment. SEBI has been taking measures to

ensure that PNs are not used as conduits for black money or
terrorist funding. As per SEBI regulations, PNs can be issued to
only those entities that are regulated by an appropriate regulator
in the countries of their incorporation and are subject to
compliance of Know Your Client norms. FIIs are also required
to declare that these PNs have not been issued to

Indian

residents or non-resident Indians. Entities issuing PNs are

required to submit to SEBI a monthly

report which includes

details of subscribers and details of securities underlying PNs.

Though, the information sought from FIIs issuing PNs are being

submitted regularly, the reporting requirements mandated by

SEBI presently do not capture details of ultimate beneficial
owners of these instruments.

As per SEBI(Foreign Portfolio Investor) Regulations, 2014,

Foreign Portfolio Investors (FPIs) can issue ODIs to only those
entities that are regulated by an appropriate foreign regulatory
authority subject to compliance with Know Your Client norms.
SEBI, vide its circular dated November 24, 2014 has further
listed set of criteria for the subscribers of P notes or Offshore
Derivative Instruments(ODIs).

SEBI has informed that the outstanding value of Offshore

Derivative Instruments(ODIs) at the end of February 2015 stood
at Rs. 2.715 lakh crores. SEBI has further informed that the top
five locations of end Beneficial owner of ODIs were Cayman
Islands, USA, UK, Mauritus and Bermuda contributing to
31.31%, 14.20 %, 13.49 %, 9.91 % and 9.10 % respectively of
total ODIs outstanding.

It is clear from above than a major chunk of outstanding ODIs

invested in India are from Cayman Islands i.e. 31.31 %. This
translates to roughly Rs. 85,006 Crores. The Cayman Islands had
a population of 54,397 in 2010 according to Wikipedia. It does
not seem conceivable that a jurisdiction with a population of less
than 55,000 could invest Rs. 85,000 crores in one country.

The main point of the above elaboration is just that it does not
appear possible for the final beneficial owner of ODIsoriginating
from Cayman Islands to be from that jurisdiction.

The following recommendations are made in this regard :

(i)

It is clear that obtaining information on beneficial

ownership of P notes is of crucial importance to prevent
their misuse. SEBI needs to examine the issue raised
above and come up with regulations where the final
beneficial owner of P notes/ODIs are known.

(ii)

The information of beneficial owner with SEBI should

be in form of individual whose KYC information is known
to SEBI. In no case should the KYC information end with
name of a company. In case a company is the holder of P
notes/ODIs,

SEBI

should

have

information

of

its

promoters/directors who exercise effective control over

the company. In case of Companies/Trusts represented
by service providers like lawyers/accountants SEBI
should have information on the real owners/effective
controllers of those Companies/Trusts. not end with
name
(iii)

P notes are transferable in nature. This makes tracing the

true beneficial owner of P notes even more difficult since
layering of transactions can be made so complex so as to
make it impossible to track the true beneficial owner.
SEBI needs to examine if this provision of allowing
transferring of P notes is in any way beneficial for easing

foreign investment. Any investor wanting to invest

through P notes can always invest afresh through an
Foreign Portfolio Investor(FPI) instead of buying from a P
note holder.

3. Shell Companies and beneficial ownership( Reference p.

73-76 of the Third SIT Report)

The Report of the Committee headed by Chairman, CBDT on

Measures to tackle Black Money in India and Abroad
submitted in 2012 observed as follows :
3.4 The primary method of generation of black money remains
suppression of receipts and inflation

of expenditure. The

suppression could be over a range of businesses and industrial

activities which are

covered by what may be called primary

enactments to regulate sale receipts, actual production, charging

amount in excess of statutory amounts, etc. ..

3.6 However, as manipulation of income is not always possible by

suppression of receipts, tax-payers may try to inflate expenses
by obtaining bogus or inflated invoices from bill masters, who
make bogus vouchers and charge nominal commission. As these
persons are of very modest means, upon investigation, they tend
to leave the business and migrate from the city where they
operate. This is one of the reasons for a proportion of income tax
arrears attributed to assessee not traceable.

3.7 Similarly, there are other categories of small entry operators,

who provide accommodation entries by accepting cash in lieu of
cheque/ demand draft given as loans / advances / share capital,
etc and

thereby launder large sums of money at miniscule

commissions. Due to frequent migration, such entry operators

escape prosecution under the Income Tax Act. The appellate tax
bodies also tend to tax their income at nominal rates. There is no
effective deterrence, except for taxing commission on such bogus
receipts and tax in the hands of beneficiaries. Providing fake bills
and entries need to be dealt with

strongly and as criminal

offence under the tax laws.

Use of shell companies to provide accommodation entries to

launder black money has been observed in a number of high
profile cases investigated or under investigation in the recent
past.

The strategy to curb this menace has to be two fold :

(i)

Proactive detection of creation of shell companies : This

would involve intelligence gathering through regular data
mining and dissemination of information gathered to
various law enforcement agencies for active surveillance.

(ii)

Deterrent penal action against persons involved in

creation

of

shell

accommodation entries.

companies

and

providing

The following recommendations are made in this regard :

(i)

Proactive detection of creation of shell companies: Serious

Frauds

investigation

office(SFIO)

under

Ministry

of

Company needs to actively and regularly mine the MCA

21 database for certain red flag indicators. These red flag
indicators could be based on common DIN numbers in
multiple companies, companies with same address, same
contact numbers, use of only mobile numbers, sudden
and unexpected change in turnover declared in returns
etc. These indicators are

illustrative in nature and the

SFIO office can prepare a set of indicators based on its

own

experience

and

consultation

with

other

law

enforcement agencies like CBDT, ED and FIU.

(ii)

Sharing of information on such high risk companies with

law enforcement agencies : Once certain companies are
identified through data mining above, the list of such
high risk companies should be shared with CBDT and
FIU for closer surveillance.

(iii)

In case after investigation/assessment by CBDT, a case

of creating accommodation entries is clearly established,
the matter should be referred to SFIO to proceed under
relevant sections of IPC for fraud. SFIO should also refer
the matter to Enforcement Directorate for taking action
under PMLA for all such cases of money laundering.

(iv)

It has also been observed that in many cases of creation

of shell companies the shareholders or directors of such
Companies are persons of limited financial means like

drivers, cooks or other employees of main persons who

intend to launder black money. Section 89(1) and 89(2)
of the Companies Act, 2013 provides for persons to
declare if they have beneficial interest in the shares of
the Company or not. Section 89(4) enjoins the Central
Government to make rules to provide for the manner of
holding and disclosing beneficial interest and beneficial
ownership under this section. The Ministry of Company
Affairs may frame such rules at the earliest.

4. Action under PMLA for Trade Based Money laundering :

Section 132 of the Customs Act has been made a predicate
offence through the Finance Bill 2015. Section 132 of the
Customs Act reads as follows :
132. False declaration, false documents, etc.Whoever
makes, signs or uses, or causes to be made, signed or used,
any declaration, statement or document in the transaction
of any business relating to the customs knowing or having
reason to believe that such declaration, statement or
document is false in any material particular, shall be
punishable with imprisonment for a term which may extend
to 1[two years], or with fine, or with both.
Thus any declaration of mispriced goods is a punishable
offence under this Act.
SIT realizes that Trade Based Money laundering through
mispricing of imports/exports is a major means of taking

money out of this country. A strong deterrent action is

needed to curb this menace. The SIT thus recommends
that

all cases of Trade based money laundering

detected by DRI where violation of section 132 of

Customs Act ,above the threshold provided for in Part B
of Schedule of PMLA, has been found must be shared by
DRI with the Enforcement Directorate to enable ED to
take action under Prevention of Money Laundering Act.
5. Use of cash in Black economy ( Reference p. 4-6 of Third
SIT Report)
Suggestions, made in Paras: 4 & 5 at Chapter: III of the
Second Report of SIT, are reproduced as under:
(i)

4.

It is suggested that for regulating the possession

and transportation of cash, particularly putting a limitation on

cash holdings for private use and including provisions for
confiscation of cash held beyond prescribed limits, provision
in the Act should be made. It is to be stated that a number of
European countries bar any cash transaction above a
particular limit. This can be done in India too. Again, while
implementing

the

suggestions,

to

ensure

that

small

transactions, which make a bulk of common mans daily

transactions, are not affected and for that, a threshold limit
could be kept.
Further, for holding of cash/currency notes
also, there should be a limit, by prescribing a reasonable
threshold, may be Rs.10 lacs or Rs.15 lacs. This would
control holding of unaccounted money to a large extent. This
would also control transfer of unaccounted cash from one

destination to other, which at present is rampant, may be by

Angadias or by other means.
5.

The aforesaid suggestion is also in conformity with

the observations in the case of Rajendran Chingaravelu vs.

UoI, in CA No.7914 of 2009; ORDER DATED November 24,
2009 (320 ITR 1)) by the Honble Supreme Court. Therein, it
had been observed that The nation is facing terrorist threats.
Transportation of large sums of money is associated with
distribution of funds for terrorist activities, illegal pay offs,
etc. There is also rampant circulation of unaccounted black
money destroying the economy of the country.
This is known to all concerned and, therefore,
suggestion made above, be implemented.
(ii)

On the aforequoted suggestions, the response,

given in the aforesaid Office Memorandum of CBDT, is

reproduced as under:

The recommendation has been referred to Department of

Economic Affairs (DEA) for taking appropriate action and
submitting feedback to the SIT. It was ascertained from Shri
Manoj Joshi, Joint Secretary concerned on 7th April 2015 that
the

proposal

has

been

sent

by

DEA

to

various

Departments/Ministries (including MHA) for inputs which are

awaited.
(iii)
SIT is awaiting the response of the concerned
Departments, as the large cash amount is normally used
in illegal transactions such as, those involving, payment
for drugs/narcotics deals, corruption/bribery, cricket
betting and use of huge cash during elections, etc.

(iv) According to SIT, if holding of cash is restricted and

regulated, to a large extent, it would control circulation of
black money within the country and discourage stashing of
money abroad.
(v)
In the meeting held on 30th April, 2015, the
concerned Joint Secretary, Mr. Manoj Joshi remained
present and he stated that the aforesaid issue would be
decided as early as possible.

6. Generation of black money in education sector and

through donations to religious institutions and charities
(Reference p. 84-86 of the Third SIT Report)
SIT sought the response of the Government through the
Revenue Secretary on the following points:
1.

It is a known fact that wellknown schools and colleges

are accepting large donations by cash. That cash
normally would be unaccounted money. For controlling
such transactions, there should be specific provision
that donation shall not be accepted by cash and
whosoever accept it, would be punishable under the
Prevention of Corruption Act, as if he is deemed to be a
public servant.

2.

Large amount is donated to various religious institutions

or charities. Nobody can object for charity donation but
at the same time, that when large amount is donated, it
should be only accounted money and that payment
should be by accountpayee cheque to the charity or the
institution. Even if gift of jewelry is made to the charity

or institution, it should be by mentioning donors name

and his PAN Number.
CBDT informed on details of searches / surveys
conducted by them with respect to above points related to
Education sector and Trusts. In short, the substance of the
brief findings of searches / surveys conducted by the
Department of various entities engaged in area of education
through the Trust reveals that large unaccounted amount is
accepted as donation and in a number of cases, such
donations are used for personal benefits and also for tax
evasion which results into generation of black money. The
report of the said searches in short is at Annexure: A to this
report.

As stated earlier, the person who accepts the donation

and the donor requires to be prosecuted under Prevention of
Corruption Act. For this, itwould require legislative change
which is necessary because now a days, donation to
educational institutions which are in demand, is rampant.
In some cases, it goes to Rs.1 crore and more. This would go
long way in curbing the generation and circulation of black
money.

Further, considering the aforesaid report, it appears

that in number of cases, assessment is not finalized. Hence,
CBDT should take appropriate action for expeditious
finalization of the assessment, and if required, punitive

action may be taken.

CBDT

shall

also

share

the

aforesaid

report/information with the concerned agencies so that

other agencies can also take appropriate action under the
relevant law.

7. Necessity for establishment of additional Courts for

deciding the pending cases under the Income Tax Act,
1961 (I.T. Act) (Reference : Page IV of Executive
Suumary of Third SIT report and extracts from First and
Second SIT reports)
(a)

In Para: 4 at Chapter: VI of the First Report dated 13th

August, 2014, it was interalia reported that,

approximately 4,939 cases are pending for
disposal before the Metropolitan Magistrate, Mumbai since
more than 10 years. If these cases are decided immediately,
it would have its own deterrent effect. For this purpose,
Additional Chief Judicial Magistrates are required to be
appointed, as there is heavy work load in the Metropolitan
Magistrate Courts, Mumbai.
For expediting the cases, if five additional Courts
of Additional Chief Judicial Magistrate are constituted which
try the aforesaid pending cases under Income Tax Act, 1961,
the decision in the said cases would have its own impact.
After deciding income tax cases, cases under Customs &
Excise Act, 1996 can be dealt with by the said Courts..
(b)

In Para: 13 at Chapter: III of the Second Report

(December, 2014), it was reiterated to constitute five

additional Courts of Additional Chief Judicial Magistrate.
Said Para is reproduced as under:
13. As suggested in first report, at least 5
Additional Chief Judicial Magistrates Courts in
Mumbai are required to be established for deciding
approx. 5000 pending IT prosecution cases.
It appears that without direction by the
Honble Court, it would be difficult to establish 5 Courts as
suggested. For the establishment of 5 courts, Central
Government shall bear the entire cost.
(c) In view of the recommendations made by the SIT in the
First and Second Reports, to constitute five additional
Courts of Additional Chief Judicial Magistrate; The Revenue
Secretary, DoR, MoF, GoI, vide D.O. Letter No.K
11022/27/2014Ad. ED, dated 09th March, 2015, requested
the Chief Secretary, Government of Maharashtra to consult
the High Court of Mumbai for setting up of five additional
Courts of Additional Chief Judicial Magistrate.
Thereafter, Chairman, SIT, by a letter dated 26th March,
2015, requested the Honble Chief Justice of High Court of
Mumbai, to look into the matter and give suitable
administrative directions for expeditious setting up of the
Courts which can continuously try the prosecution under
the I.T. Act so that it would have its own deterrent effect.
Action is awaited and it is submitted that if appropriate
direction is issued by the Honble Apex Court, the
suggestion would be implemented at the earliest.

In addition, in view of the SIT, a suitable direction is

required to be issued by the Honble Apex Court to all High
Courts and State Governments to allocate suitable number

of Judges in the trial Courts trying the Income tax,

Customs, Central Excise, Service Tax, PMLA, FEMA, FERA
cases to ensure that these cases are disposed off within one
year of filing the chargesheet. Similar directions may be
issued to trial Courts to conclude the proceedings of all
foreign asset related prosecutions within one year of their
launching. This would have its own deterrent effect.

8. Need

for

establishment

of

Central

KYC

Registry

(Reference p. XVI of Executive Summary of the Third

SIT Report)

The Second SIT Report in its third chapter had observed as

follows :

At present for entering into financial/business transactions

persons have option to quote their PAN or UID or Passport
number or driving license or any other proof of identity.
However, there is no mechanism/system at present to
connect the data available with each of these independent
proofs of ID.
interconnected.

It is suggested that these data bases be

This would assist in identifying multiple

transactions by one person with different IDs.

A central

KYC Registry should be established with all law enforcement

agencies, Registrar of Companies and financial institutions
having access to its database.

The Department of Revenue has informed that rules for the

Central KYC Registry to be framed under Prevention of
Money Laundering(Maintenance of Record) Rules have been
finalized by the Department and have been sent to
Legislative Department for vetting. The rules are expected to
be notified shortly. This is expected to expedite the setting
up of this Central KYC Registry which shall be an important
office to tackle the menace of

black money and money

laundering more effectively.

SIT insists that Central KYC Registry(CKYC) should be

notified as early as possible.

9. GENERATION OF BLACK MONEY DUE TO CRICKET

BETTING (Reference p.68 -71 of the Third SIT Report)

1.

In the report (February, 2015) namely, A study on

widening of tax base and tackling black money of

Federation of Indian Chambers of Commerce and Industry
(FICCI), generation of black money in various sectors of
Indian Economy is discussed in detail. Substance of the
said Report in relation to generation of black money due to
betting is as under:
Betting in sports is illegal in the country, and hence,
creates a wide scope for black money generation. In India,

only betting on horse racing, lotteries conducted by state

governments and casinos in certain states are permissible.
According to 2012 FICCI and KPMG report, betting in
India is a INR 3,00,000 crore (Rupees Three Lacs Crores)
market and if taxed at a rate of 20 percent, the exchequer
can earn revenue of INR 12,000 crore to INR 19,000 crore
every year.
Cricket betting is widespread in the country. As there
are no legitimate means on placing bets, hence, people
resort to illegal channels such as bookies/bookmaker that
facilitate gambling by setting odds, accepting and placing
bets and paying out winnings on behalf of other people.
Illegal betting leads to malpractices such as matchfixing or
spotfixing wherein the bookie fixes the outcome of the
event in his favor by having an illegal agreement with the
sportsperson. This leads to bettors being cheated at the
hands of bookmakers, thereby enabling them to earn huge
sums of black money.
The Indian Premier League (IPL) has been marred by
betting and spot fixing scandals and involvement of huge
amount of black money. As per news reports, some of the
players are paid more than the payment slabs prescribed by
the Board of Control for Cricket in India (BCCI), with certain
amount paid through legitimate means and some in black.
During the IPL 2013 season, in a sport fixing scam, several
cricketers were arrested for accepting money from bookies

to throw away matches.

2.

In the aforesaid context, in the Judgment rendered in

the case of Board of Control for Cricket in India v/s.

Cricket Association of Bihar & Ors. [JT 2015 (1) SC 526],
the Honble Supreme Court observed that,
Allegations of sporting frauds like match fixing and betting
have for the past few years cast a cloud over the working of
the Board of Cricket Control in India (BCCI). Cricket being
more than just a sport for millions in this part of the world,
accusations of malpractices and conflict of interests against
those who not only hold positions of influence in the BCCI but
also own franchises and teams competing in the IPL format
have left many a cricketing enthusiasts and followers of the
game worried and deeply suspicious about what goes on in
the name of the game. There is no denying the fact that
lowers the threshold of tolerance for any wrong doing higher
is the expectation of the people, from the system. And cricket
being not only a passion but a great unifying force in this
country, a zero tolerance approach towards any wrong
doing alone can satisfy the cry for cleansing.

Further, the Court referred to fundamental sporting

imperatives stated in the Anti Corruption Code, which is
claimed to have been adopted by BCCI. One
imperatives is:

of

the

1.1.3

Advancing technology and increasing popularity

have led to a substantial increase in the amount, and the

sophistication of betting on cricket matches. The development
of new betting products, including spread-betting and betting
exchanges, as well as internet and phone accounts that allow
people to place a bet at any time and from any place, even
after a cricket match has started, have all increased the
potential for the development of corrupt betting practices
3.

Involvement of huge illegal, unaccounted money in

cricket betting has been noticed by ED, where betting was

being done over internet or using electronic gadgets. It is
also stated that some websites (may be outside the country)
are providing online betting facilities for various sport
events, such as cricket, football, etc.
4.

Considering the aforesaid discussions, it is apparent

that illegal activity of cricket betting requires to be

controlled by some provisions which are deterrent to all the
concerned.
It is true that betting in gambling is a subject on which
State Governments have to pass appropriate law, as it is a
State subject in the State List (Entry 34). However,
considering the fact that large amount of black money is
generated and used in this sector, it is suggested that some
appropriate legislative directions or rules or regulations are
required to be put in place to curb the menace of such
betting.

10.

Empowerment of DRI under section 20,21 and 22

of SEZ Act ( Reference p. XVI of Executive Summary of

Third SIT Report)
One limitation faced by Directorate of Revenue Intelligence
(DRI) in investigating cases of misinvoicing or violations of
Customs Act is that presently DRI is notempowered under
section 20,21 and 22 of the SEZ Act, to carry out
investigation, inspection, search or seizure in the Special
Economic

Zone

or Unit without prior intimation or

approval of the Development Commissioner. Department of

Commerce has so far issued only entry passes for some DRI
officers for certain SEZs.

Further, as per the Foreign Trade Policy 2015-2020

announced recently, SEZ has been allowed to avail benefits
of Chapter 3 on par with Domestic Tariff Area Units. In
effect, SEZ units would avail export incentives available
under (i) Merchandise Exports from India scheme (MEIS) or
(ii) Service Exports from India Scheme (SEIS). In view of the
same, now it has become even more imperative to notify the
DRI under the 2nd proviso of section 22 of the SEZ Act to
safeguard the interest of Revenue.

SIT has been informed that this matter has been taken up
with the Ministry of Commerce by Revenue Secretary and
DRI in the past.

In light of above, it is recommended that Ministry of

Commerce looks into the matter urgently and issues
necessary notifications u/s 20,21 and 22 of the SEZ Act
empowering DRI to carry out investigation, inspection,
search or seizure in the Special Economic

Zone

or Unit

without prior intimation or approval of the Development

Commissioner.

MR. JUSTICE M. B. SHAH (RETD.)

CHAIRMAN

DR. JUSTICE ARIJIT PASAYAT (RETD.)

VICECHAIRMAN