TMI Blog2019 (12) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... transferred to the Appellant by M/s Veena Industries Ltd. Even after coming into possession of such documents the Respondent had chosen not to give any opportunity to the Appellant to explain its case in the proceedings before the Respondent. Appellant had moved an application for intervention and as such the Adjudicating Authority has powers u/s 26(6) to add name of the party whose presence before the Adjudicating Authority may be necessary to enable it to adjudicate upon and settle all questions involved in the reference. Adjudicating Authority did not exercise it powers and did not implead the Appellant as a party to the proceedings even after application was made before it by the Appellant, and the Respondent had also admitted in its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of impugned order passed by the Adjudicating Authority as well as Provisional Attachment Order passed u/s 24(4) of the PBPT Act, 1988 by the Respondent in respect of the property purchased and owned by the Appellant i.e. Gat. No.1051 and 1052 at village Wake Budruk, Pune, described as Property-I in the impugned order. 3. It is submission of Mr. Taneja, Learned counsel appearing on behalf of the appellant that the Respondent failed in its basic duty to investigate and find out as to who has the actual possession and title (the ownership) of the subject property before issuance of the SCN and passing of the Provisional Attachment Order. 4. The Section 24(3) of the PBPT Act is reproduced as hereunder: 24(3): Where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellant herein. The notice must show cause that in the opinion of the IO, the person who is in possession of the property holding the property as benami. 8. In the present case, it appears that the Respondent had passed the Provisional Attachment Order dated 23.03.2018, without conducting enquiry and ascertain the facts of the person in actual possession and holder of present title of the subject property, which is a fundamental and mandatory requirement as prescribed u/s 24(3) of the PBPT Act, 1988 and a prerequisite for passing an attachment order u/s 24(3). It is special act. All the provisions have to be applied very strictly. Different meaning cannot be given if the language of the section is plain simple and und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 24(3) as is obligated upon him in the discharge of his function) , other than that no investigation or communication has been made by the Respondent even with the Sub-Registrar who is supposed to safeguard the interest of the state. Admittedly, the title documents are registered as per law. 14. The communication sent by the Respondent to Joint Sub Registrar, Pune, which is titled as Provisional Attachment Order passed u/s 24(4)(a)(i) of the PBPT Act, 1988 , even the name of the owner or alleged benamidar as per the Respondent has not been mentioned. 15. The issue of serving notice u/s 24(1) to the interested party has been well settled in the order of this Tribunal as passed in the matter of Virgo Buildestate (P.) Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the fact that the Appellant had paid the full applicable stamp duty of ₹ 44,30,000/- (Rupees Forty Four Lakhs Thirty Thousand) for registration of the sale deed. There is no contrary evidence is available on record that the said money is not owned by the appellant but it was benami transaction. 18. The Adjudicating Authority and the Respondent did not consider that the possession, title and all the beneficial interest in the subject property was with the Appellant long before the issuance of the Show Cause Notice (dated 28.12.2017) and Attachment Order (dated 28.12.2017)issued by Respondent. They have failed to recognize and protect the rights of the Appellant as provided in the section 27(2) of the PBPT Act, 1988 which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellant of the subject property is not bona-fide. 22. The Respondent in its rejoinder dated 27.12.2018 at has itself admitted that it was in the possession of the information and documents that the subject property had been sold/transferred to the Appellant by M/s Veena Industries Ltd. However even after coming into possession of such documents the Respondent had chosen not to give any opportunity to the Appellant to explain its case in the proceedings before the Respondent. 23. The Appellant had moved an application for intervention and as such the Adjudicating Authority has powers u/s 26(6) to add name of the party whose presence before the Adjudicating Authority may be necessary to enable it to adjudicate upon and s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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