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5. Mr. Joshi, Learned Senior Advocate appearing on behalf of the appellants submitted that the schemes floated by the appellants are basically similar to the schemes floated by PACL Limited and therefore, the appellants would adopt the arguments advanced by PACL Limited in their appeal to contend that the schemes floated by the appellants do not constitute CIS. Apart from the above, it is submitted by the counsel for the appellants that the schemes floated by the company are distinguishable from the case of PACL Ltd., for the following reasons:-

Even in such cases, the development charges were not separately taken as in the case of PACL Ltd.

g) The schemes floated by the appellants do not contain any clause for increase in the land price from year to year, whereas in case of PACL Ltd., there was a clause for increase in the land price.

h) Unlike in the case of PACL Ltd., the Sale Deeds executed by the company in favour of investors were handed over to them and there was no custodian to whom the sale deeds were to be handed over. Only in case of joint ownership, sale deeds were to be held by mutually approved trustees (as per clause 23 of Terms and Conditions).

16. We have carefully considered the rival submissions.

17. It is not in dispute that the schemes floated by the appellants are basically similar to the schemes floated by PACL Ltd. Hence, for the reasons stated in our order passed in case of PACL Limited (Supra) we uphold the decision of WTM of SEBI that the schemes floated by the appellants constitute CIS under the CIS Regulations and since the appellants have operated the said schemes without seeking prior registration from SEBI, the appellants are bound and liable to wind up the schemes and refund the money collected with promised returns.

24. In case of PACL Ltd. relying on the decision of this Tribunal in case of Alchemist (Supra) PACL Ltd. sought registration of the schemes whereas, SEBI contended that the decision in Alchemist was per incuriam. This Tribunal noticed that in case of Alchemist (Supra) SEBI had held that the CIS floated by Alchemist after the CIS Regulations came into force without obtaining certificate of registration from SEBI were liable to be wound up under regulation 65 read with regulation 73 of the CIS Regulations and this Tribunal had merely upheld that decision of SEBI. When the Tribunal had upheld the decision of SEBI it was not open to SEBI to contend that the decision of this Tribunal in case of Alchemist was per incuriam. In that context, this Tribunal held that SEBI is not justified in contending that the decision of this Tribunal in case of Alchemist was per incuriam, without first admitting that its decision in case of Alchemist directing winding up under regulation 73 was per incuriam. Thus, it can be seen that in case of PACL Ltd. this Tribunal had not endorsed the view taken in case of Alchemist.