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2022 (8) TMI 933 - AT - Insolvency and BankruptcyAttachment of Immovable property - attachment during the period when Moratorium under Section 14 of the Insolvency & Bankruptcy Code, was in force - evasion of duty - benami transactions - HELD THAT:- It must be borne in mind that in the act / transaction of Money Laundering, there is Washing the Money. In case of a Benami Transaction, to evade or avoid Tax or defrauding the Revenue, the Victim is the State and not the individual, which in Law is species of fraud - The onus of establishing that a particular sale is Benami and the apparent purchaser is not the real owner, rests upon the person asserting it to be so. The burden is to be strictly discharged by letting in evidence of a definite character, which will either directly prove the fact of Benami or establish circumstances, unerringly and reasonably and raising an inference of that fact, as per decision of the Hon’ble Supreme Court in Jeydayal Poddar V Bibi Hazre [1973 (10) TMI 55 - SUPREME COURT]. It comes to be known that the provisional Attachment dated 01.11.2019 was affirmed on 10.11.2021 by the Competent Authority, under Section 24 (3) of The Benami Transactions (Prohibition) Act, 1988. Also, it is crystalline clear that the Applicant / Appellant cannot embark upon a method to avoid / evade / supplant or circumvent the procedural hierarchy, as envisaged under the The Benami Transactions (Prohibition) Act, 1988, to be fulfilled by an aggrieved / affected person - the ingredients of Section 29 (A) of the The Benami Transactions (Prohibition) Act, 1988 (Amended 2016 by Act 43) deals with the aspect of Benami Transactions. This Tribunal on a careful consideration of divergent contentions, keeping in mind, the entire gamut of the facts and circumstances of the instant case in a conspectus and holistic fashion / manner comes to an inevitable, irresistible and inescapable conclusion that the Applicant in Law is not entitled to prefer an Application before the Adjudicating Authority. Suffice it for this Tribunal to pertinently observe that the said Miscellaneous Application is misconceived one, in the eye of Law, and the same is per se is not maintainable. Application dismissed.
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