|
Advanced Search Options
Benami Property - Case Laws
Showing 81 to 100 of 302 Records
-
2022 (2) TMI 601 - MADRAS HIGH COURT
Benami transaction - suit properties were the properties purchased by Kannapiran in the name of his wife as benami, for his benefit - independent right over the suit properties - Whether the plaintiff is entitled to divide their suit properties into seven equal shares as prayed for? - HELD THAT:- When there is a subsequent Will dated 05.02.2007, in respect of the suit properties, in the absence of production of Will dated 05.02.2007, Kannapiran cannot claim an independent right over the suit properties. May be there is no evidence produced by the respondent to show that the suit properties were purchased by her mother either from the funds provided to her by her parents or through money mobilized through chit transaction, recitals in Exhibits A8, A9 to A11, show that the suit properties are the self-acquired properties of deceased Lakshmi Ammal. Thus, it can be concluded that the appellants had treated the suit properties are the self-acquired properties of Lakshmi Ammal. The judgment reported NAND KISHORE MEHRA VERSUS SUSHILA MEHRA [1995 (7) TMI 64 - SUPREME COURT] relied in support of the case that the suit properties were purchased by Kannapiran in the name of his wife Lakshmi Ammal, this Court finds that it is not applicable to this case for the reasons stated above.
This finding is fortified by the fact that Exhibit A8 release deed was executed by Kannapiran and defendants 4 to 6, only after getting a consideration of ₹ 18,00,000/- for releasing their right in the suit properties. If Exhibit B1 Will is true, what is the necessity for Kannapiran to relinquish his right in favour of his sons. When there is a release deed executed then, what is the necessity for again executing the settlement deeds. Thus, it is clear that the appellants had created documents one after other to deny the respondent, her right of share in the suit properties. From the oral and documentary evidence produced in this case, it can be concluded that suit properties are the self acquired properties of deceased Lakshmi Ammal and therefore, as a daughter, respondent is entitled to claim her share in the suit properties. The First Appellate Court considered the evidence in detail, reached right conclusion and decreed the suit. This Court finds no reason to take a different view of the matter and confirms the judgment of the First Appellate Court. Thus, substantial question of law is answered.
-
2022 (1) TMI 918 - MADRAS HIGH COURT
Prohibition of benami transactions - plaintiff entitled for the suit property - Whether the settlement deed executed by the 1st defendant in favour of the 3rd defendant is not valid and genuine? - Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?? - HELD THAT:- No person shall enter into any benami transaction and no suit, claim or action to enforce any right in respect of any property held benami shall lie.
Appellate Judge also found from the evidence that the Appellant gave a complaint to the police through Ex.A7 on 26.08.2013, subsequent to the filing of the suit. In which the appellant has claimed ½ share in the suit property, thereby appellant admitted that his father is the owner of the property. There is absolutely no evidence produced by the appellant to show that he contributed the money for the purchase of the suit property in his father's name and therefore, this Court finds no reason to interfere with the findings of the Courts below that the Appellant has failed to establish that he contributed money for the purchase of the suit property in his father's name.
Appellant submitted that the appellant is in possession and enjoyment of the property and that is admitted by the 1st Respondent. Even in the written statement, the possession of the appellant in the suit property is admitted but it is claimed that it is a forcible possession taken by the Appellant. When there is no legal claim to the title of the suit property, on the basis of forcible possession of the suit property, appellant cannot claim any right. No substantial question of law.
-
2021 (12) TMI 1162 - BOMBAY HIGH COURT
Benami transaction - suit property is ancestral property - Suit property was purchased in the name of grandmother of the plaintiff by grandfather - what was the reason for the defendant to purchase the property in the name of mother and not in his own name? - HELD THAT:- Whether the transaction in question was a Benami and whether the defence of the defendant that in fact he is the exclusive owner and not his mother, though the property was standing in her name, could have been allowed to be raised in view of Section 4 of Benami Transactions (Prohibition) Act, 1988, was not considered by both the Courts below. But, definitely, that point which is the law point, which can be framed here, will have to be gone into because if the defendant could not have been allowed to raise that defence, then his entire defence fails.
Here, we are concerned with whether defendant can take such defence and to that extent, the observations in paragraph No.13 would be required to be considered. However, since the categories have been made, we will have to consider its interpretation. Further, the real intention whether was brought on record is also a question. Another fact to be appreciated on the basis of the same is, if the property was in the name of mother, then whether defendant could have raised any loan from any institution/bank/ Patsanstha is also required to be considered. On this point, in fact, the Courts below have considered that the said construction would have been made by the defendant as per his choice and will. It does not deprive the plaintiff of his right. The documents on record were considered by both the Courts below and it was observed that those documents appear to be fabricated. The defendant was the Secretary of the Patpedhi, from whom it was shown that he had raised loan. Therefore, as regards factual aspect is concerned, it is not giving any rise to a substantial question of law, however, the nature of the property and whether the defendant could have raised defence of exclusive ownership, though the property stood in the name of his mother, deserve to be resolved/adjudicated in this case. Hence, the second appeal stands admitted. Following are the substantial questions of law :-
I) What was the nature of the suit property i.e. as to whether ancestral or of exclusive ownership of defendant No.1?
II) Whether the defendant could have been allowed to take defence that though the suit property was purchased in the name of his mother but he was in fact the real owner (Benami Transactions) in view of Bar under Section 4 of the Benami Transactions (Prohibition) Act, 1988?
Issue notice to the respondents. Mr. M. S. Kulkarni waives notice for respondent Nos.1 to 3.
-
2021 (12) TMI 1161 - ORISSA HIGH COURT
Applicability of the Benami Transactions (Prohibition) Act, 1988 - Single Judge while concurring with the findings of the Trial Court held that under Section 3 (2) of the said Act there was no prohibition to the property being purchased in the name of the ostensible owner's wife and unmarried daughter - Appellants herein are the successors-in-interest of the original Defendant - Single Judge discussed the evidence led and disbelieved the case of the Defendant that the registered sale deed was vitiated by fraud and coercion - HELD THAT:- This Court is unable to come a conclusion different from that reached by the trial Court as well as the First Appellate Court on any of the above issues, in which concurrent findings have been rendered against the Appellants, both by the Trial court as well as the learned Single Judge.
Indeed, the concept of unilateral cancellation of a sale deed, which has been duly registered, is unheard of. Even otherwise, it lacks legal sanctity. The only way to prove that a sale deed was not duly executed would be by leading evidence in the civil court.
Despite being provided with sufficient opportunity, the Appellants- Defendants have been unable to establish their case that the registered sale deed in question had been executed through undue influence or coercion.The Court is unable to find any error committed by the learned Single Judge and therefore declines to interfere with the judgment and decree of the Trial Court.
-
2021 (12) TMI 298 - KARNATAKA HIGH COURT
Benami transaction - joint family property - Whether the plaintiff proves that the suit schedule property is the joint family property of the plaintiff and the defendants? - HELD THAT:- The first defendant - mother is also no more and she also passed away on 24.08.2017 and this application is filed prior to death of the mother and the reasons assigned in the application that by oversight she was not made as a party to the proceeding. It has to be noted that the appellant claims that the suit schedule property belongs to the joint family and other respondents have also not disputed the fact that she is not the daughter of Kumaran Nair and also the first defendant - Thangamma. When the suit is filed for the relief of partition and separate possession, the appellant ought to have made her a party to the proceeding but there was a delay in filing the application. It is also not in dispute that the matter was also remanded from the Apex Court. But on perusal of the entire objection statement except stating that there was a delay in filing the application, whether she is necessary party or not has not been disputed by the proposed respondent in the objection statement. Hence, the appellant has made out a ground to allow the application filed under Order 1 Rule 10(2) read with Section 151 of CPC to implead his sister as respondent No.5.
Plaintiff proof that he has got 1/5th share in the suit property - HELD THAT:- As noted that the suit is filed for the relief of partition and also the suit was dismissed prior to execution of these documents. In order to decide the issue whether the suit schedule property is the joint family property or not, these documents are not necessary and germane issues are involved between the parties only whether the suit schedule properties are the joint family properties or not even if any documents are created during the pendency of the appeal that will not take away the case of the appellant/plaintiff. While allowing the application filed under Order 41 Rule 27 read with Section 151 of CPC, the Court has to be kept in mind whether those documents are necessary to adjudicate the issues involved between the parties. I have already pointed out that the issue involved between the parties is whether the plaintiff is entitled for the relief of partition in proving the suit schedule property is the joint family property or not. Hence, we do not find any ground to allow the application filed Order 41 Rule 27 read with Section 151 of CPC permitting him to produce the additional documents. Hence, answered point No.2 as 'negative'.
Whether the first defendant proves that the suit property belongs to her exclusively? - HELD THAT:- As in this case, document - Ex.P1 - Agreement to Sell was in the name of the father. Sale Deed was in the name of the mother and all are family members. Hence, the question of Benami transaction does not arise. Only the mother is the name lender and the mother also may be contributed by selling her native place property which was given to her, but that does not mean that all the family members have not joined in purchasing the property and making the construction. Admittedly, the plaintiff also joined the Police Department in the year 1972 and the house was constructed in the year 1978-79 and D.W.1 also though contend in her evidence that he was residing separately, but in the cross-examination categorically admitted that she was stayed along with her husband and the plaintiff in Bengaluru. Hence, it is clear that the plaintiff also residing along with the family till his marriage i.e., 1980. When such being the case, the question of Benami transaction does not arise and the property was only purchased in the name of the mother. Hence, the material available on record in toto both oral and documentary evidence placed on record is clear that it was the joint family property and the plaintiff also substantiated before the Court by marking Ex.P4-Canara Bank Pass Book in which an amount of ₹ 500/- was paid to the Vendor.
Trial Court failed to consider both oral and documentary evidence placed on record and committed a material illegality in considering the evidence and material evidence also not considered and lost sight particularly, documents - Exs.P1 to P5 and also the conduct of the defendants i.e., DWs.1 and 2 and mainly carried away accepting the case of the defendants that she has sold the property belongs to her native place property and failed to take note of the evidence available on record in toto. Hence, it requires an interference of this Court.
The subsequent development mother is no more and she passed away during the pendency of this appeal and one of the sister of the plaintiff is also brought on record by allowing the application - I.A.No.1/2013. Hence, the plaintiff is entitled for 1/5th share in the suit schedule property.
Order: - The impugned judgment and decree passed on the file of the XV Additional City Civil Judge at Bengaluru City, is set aside.The plaintiff is entitled for 1/5th share in respect of suit schedule property.
-
2021 (11) TMI 1063 - DELHI HIGH COURT
Prohibition Benami Property Transactions - change of the Adjudicating Authority - Grievance raised by the petitioners is that vide the impugned order, the respondent no.1 has transferred more than 80 officers in the grade of Commissioner of Income Tax/Directors of Income Tax with immediate effect, including officers who were serving as Members, Adjudicating Authority at New Delhi, for the Prohibition Benami Property Transactions Act, 1988 without taking into consideration the fact that those officers had reserved judgment in a number of cases and therefore while appropriate directions ought to have been passed to deal with this aspect - HELD THAT:- Issue notice. Ms. Nidhi Raman, CGSC accepts notice. She prays for, and is granted, two weeks’ time to obtain instructions and file a reply, explaining the stand of the respondent as also how this issue can be resolved. In its reply, the respondent will also give a comprehensive list of the matters in which judgment has been reserved by the then incumbent officers holding the post of Member, Adjudicating Authority under the Prohibition Benami Property Transactions Act, 1988.
Response thereto, if any, be filed before the next date.
In case, before the next date, the matters are once again listed for arguments before the Adjudicating Authority, it will be open for the petitioners to make a request to the said Authority for adjourning the matter to await the outcome of the present petition, which request, if made, will be considered favourably by the Adjudicating Authority.
List on 22.12.2021.
-
2021 (11) TMI 520 - PUNJAB & HARYANA HIGH COURT
Benami transaction - sufficient cause of action for continuation of the suit at the instance of respondent Nos. 1 & 2. - HELD THAT:- Perusal of clause A(a)(ii)(ibid) clearly reveals that where a property is transferred to or held by a person and the consideration for such property has been provided or paid by another person and it is held by a person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capacity then it is not covered within the ambit of benami transaction and as such, contention to that effect is liable to be rejected. For declaring the transfer of property as benami transaction, proper procedure has been prescribed under the Benami Act and mere assertion at the instance of petitioner would not abort the claim of respondent Nos. 1 & 2 at the threshold.
The plea raised on behalf of the petitioner regarding compulsory registration of property, having value of more than ₹ 100/-, is also not helpful in view of the fact that both the properties were transferred in terms of section 17 of the Registration Act by way of Sale Deeds in name of the petitioner with an oral understanding that same shall be transferred in favor of respondent Nos. 1 & 2 on attaining the age of 20 years. Again, this is the plea of defence and as such, the same cannot be looked into while deciding the application under Order 7, Rule 11 CPC. It is one thing to say that there is no cause of action for the plaintiffs to file the suit and it is another thing to say that plaint does not disclose any cause of action.
Plaint discloses sufficient cause of action for continuation of the suit at the instance of respondent Nos. 1 & 2.
-
2021 (10) TMI 1380 - MADRAS HIGH COURT
Benami transactions - Notice and attachment of property involved in benami transaction - Reason to believe - whether the transactions in question constituted benami transactions, and merely adopt the identical contents of the communication of the forwarding authority? - petitioner argues that no material was available with the Department to discharge such onerous burden and thus the assumption of jurisdiction was itself bad in law - HELD THAT:- The nature of the transactions in question have to be established by the petitioner before the authorities upon the respondents discharging the initial burden cast upon them to furnish the primary evidences available with them to the effect that the property is benami in nature. This is a rebuttable presumption and the effectiveness of the rebuttal will depend on the evidences furnished by the noticees to the authorities.
In our considered view, therefore, the enquiry contemplated at the stage of initial investigation is only preliminary, based upon prima facie reasons and conclusions. A detailed verification of the evidences as regards whether the transactions were benami or otherwise can, and must only be undertaken in the course of adjudication and not at the stage of preliminary enquiry.
The thrust of the petitioner's case is the alleged insufficiency of materials as well as the fact that the evidences gathered are unreliable. However, and at the risk of repetition, the enquiry conducted under Section 24 is only a preliminary enquiry and the use of the phrase 'reason to believe' only indicates a prima facie satisfaction that all was not well as regards a particular transaction. In the present case, the trajectory of events as has been noticed by me in the preceding paragraphs of this order do not lead to the conclusion that the respondents had no reasons at all to justify the invocation of Section 24.
Denial of opportunity to cross examine the parties at the stage of investigation - As regards this, the respondents deny that such opportunity was sought for by all petitioners. In any event, they reiterate that opportunity for cross examination will be granted, as appropriate, in the course of adjudication proceedings.
In the present case, the testimony of the parties is one among other material that the respondents claim to be in possession of. The petitioners also rely upon a decision of the learned single Judge in Thilagarathinam Match Works Vs. Commissioner of Central Excise, Tirunelveli [2013 (11) TMI 535 - MADRAS HIGH COURT] to the effect that where the assessee asks for a request for cross examination, such request must be acceded to.
Thus, the process and procedure as envisaged for provisional attachment under Section 24 is of a narrower compass when compared with the process of adjudication to follow thereafter. That apart, not all the petitioners before me appear to have sought an opportunity to cross examine witnesses. It would thus suffice to state that it is open to the petitioners to make such request for cross-examination once they have been supplied with the relied upon documents at the time of adjudication, and such request, if and when made, will be considered by the respondents in accordance with law.
The mode of payment employed as between the parties and the actual amount transacted are pure questions of fact that are best left for verification and determination by the authorities concerned. This question is also left open for decision in the course of adjudication by the authorities.
The challenge to the impugned orders under Section 24(4) fails and the respondents are directed to proceed in line with Sections 25 and 26 forthwith. All writ petitions are dismissed. The petitioners were protected during the pendency of these Writ Petitions by virtue of an undertaken given by learned Standing Counsel for the respondents that there would be no escalation of the matter to the stage of adjudication. With the passing of this order that undertaking does not continue any longer.
The respondents will continue with adjudication under Section 25 and complete proceedings in light with the mandate of that Section. Notices under Section 26 of the PBPT Act will be issued within a period of 30 days from date of issue of these orders accompanied with all material that the respondents rely on and proceedings under Section 26 shall be conducted scrupulously in line with the mandate thereof.
The petitioners shall be afforded full opportunity to put forth all contentions before the adjudicating authority who shall take note of the same and pass speaking orders in accordance with law. Connected Miscellaneous Petitions are closed and the order of interim protection, if any, stands vacated forthwith. No costs.
-
2021 (10) TMI 899 - BOMBAY HIGH COURT
Benami Transactions - ownership in the property - ancestral property - when respondents (original Plaintiffs) approached the concerned authority for mutation, it was realized that the name of the ancestor i.e. father/father in law of the original defendants was found on record, along with the name of the mother of the respondent no. 1, on the strength of sale deed dated 29.3.1993 in respect of the suit property - whether the plaint deserved to be rejected as being hit by the provisions of the aforesaid Act? - whether the statement made in paragraphs 7 and 8 would be enough to conclude that the suit itself stood barred by the provisions of the said Act and therefore, the plaint deserved to be rejected under Order 7 Rule 11(d) of the CPC? - HELD THAT:- A perusal of the plaint shows that there is reference to an order dated 16.8.2017, passed by the competent Court in the inventory proceedings wherein the suit property came to be allotted to the respondent nos. 1 and 2. It is then stated that when the said respondents approached the competent authority for mutation of their names in respect of the suit property on the strength of the order passed in the Inventory proceedings, they came to know that the sale deed dated 29.3.1993 consisted of the name, not only of the mother of the respondent no. 1 as purchaser, but also the name of the father/father in law of the original defendants which led to respondent nos. 1 and 2 to approach the Court by filing the suit for declaration and consequential reliefs. It is specifically stated in the plaint that the cause of action arose in September 2017, after the order dated 16.8.2017 was passed in the Inventory proceedings.
It is significant that the statement made in the plaint indicates that cause of action arose in September 2017 and that the respondent nos. 1 and 2 became aware about the existence of the name of the father/father in law of the original defendants in the sale deed dated 29.3.1993, only at the stage when they approached the competent authority for mutation of their names in respect of the suit property.
When the pleadings in paragraphs 7 and 8 are read in conjunction with the contents of the entire plaint, it appears that the aspect as to whether the respondent nos. 1 and 2 were all along aware about the details of the sale deed dated 29.3.1993 and whether their claim of accrual of cause of action in September 2017, is correct or not, are matters that would need evidence and trial. At this stage, it would be inappropriate to jump to the conclusion that statements made in paragraphs 7 and 8 would be enough to demonstrate that the plaint itself deserved to be rejected, as being barred under the provisions of the said Act. In any case, the question as to whether the suit is hit by Section 4 of the aforesaid act would have to be decided only after sufficient material is brought on record by way of evidence to demonstrate that the ingredients of Section 4 read with Section 9A of the aforesaid Act are satisfied, in the facts and circumstances of the present case. The reliefs sought in the prayer clause are relatable to the pleadings made on behalf of the respondent nos. 1 and 2 in the context of the inventory proceedings and the right claimed by the respondent nos. 1 and 2 on the basis of inheritance.
The approach adopted by the Court below cannot be found fault with and that the contentions raised on behalf of the applicants require to be tested by way of trial and by allowing the parties to lead evidence in support of their respective stands.
-
2021 (10) TMI 898 - KERALA HIGH COURT
Benami transaction - claim on FD amount - Transfer of interest on FD to stranger - whether such deposits are permissible under the Banking Regulations? - Legal requirement that the Bank has to get a consent from a third party to the contract for the purpose of setting the amounts due under the fixed deposit account with the petitioner - order of the Ombudsman that interest is being credited to the 5th respondent and the petitioner had not objected to the same - Can a public sector Nationalised Bank, refuse to pay the proceeds of a fixed deposit, to the holder of the deposit, on the ground that a consent is required from a person from whose account the amount for opening the fixed deposit account was debited? - HELD THAT:- As the relief claimed in the writ petition does not involve any detailed analysis of disputed facts. As the 1st respondent Bank is a debtor of the petitioner, with regard to amounts held in fixed deposit, the Bank cannot have a stand that they will not pay the amounts due on maturity of the fixed deposit to the deposit holder. The monetary claims if any, of the 5th respondent against the petitioner, are not matters on which the 1st respondent Bank, which is a public sector bank, can intermeddle. It is for the 5th respondent to agitate such claims in appropriate proceedings.
Admittedly, the 5th respondent who claims to have advanced money to the petitioner has not initiated any legal proceedings for realisation of the same, even after all these years. So also, the 1st respondent cannot transfer any funds that accrue to the fixed deposit of the petitioner, to any stranger, so long as there are no specific instructions to that effect from the petitioner. The petitioner has specifically pleaded that they have not issued any such instructions. The Bank has not produced any instructions issued either by the petitioner or any other person authorised by the petitioner to transfer the interest accrued on the fixed deposit to the 5th respondent. The Bank could not have acted on instructions of the 5th respondent, since the 5th respondent is a stranger to the contract. In view of the authoritative pronouncements of the Apex Court which have been extracted above and that of a Division Bench of this Court that the Bank owes a public duty to pay the amounts due on a fixed deposit which has matured, I am of the opinion that the writ petition is maintainable and the petitioner is entitled to the relief prayed for.
In the result, the writ petition is allowed. The 1st respondent is directed to pay the maturity value of Ext.P3 Fixed Deposit with the applicable interest as per the Reserve Bank of India Circulars from the date of deposit, to the petitioner within two weeks from the date of receipt of this judgment. Ext.P3 order of the Ombudsman is set aside.
-
2021 (10) TMI 775 - MADRAS HIGH COURT
Benami purchase - real owner - onus to prove - property was the joint family property - Hindu Succession Act - right of daughters in property in partition - whether the title is presumed to vest with the person, in whose name the sale deed stands, and the burden of proof lies heavily on the person who sets up benami plea? - HELD THAT:- The appellants have not filed partition suit or issued notice till the demise of their father. Only after the demise of their father, the partition suit was instituted. The plaintiffs never claimed that the entire property was their absolute property. Their only contention was that the property was the joint family property and they are entitled to a particular share.
The Courts below have completely glossed over the material evidence in this case. When Ex.A.1 stands in the name of the late wife, the burden to show that it was purchased benami was only on the person who asserted that it was a benami transaction. The Courts below failed to take note of the fact that the defendants have failed to discharge the burden cast on them. The Courts below glossed over the fact that Ex.A.2 and Ex.A.3 were executed jointly by Sabapathy Iyer and his sons. Recitals in Ex.A.3 that the suit property is a joint family property has also been overlooked. If material evidence is ignored, that vitiates the findings. The Courts below have also failed to apply statutory presumption set out in Section 3(2) of the Benami Transactions (Prohibition) Act, 1988 - no hesitation to set aside the impugned judgment and decree and answer the substantial question of law in favour of the appellants.
Certain subsequent developments will have to be taken note of. Even according to the plaintiffs, the property in question was a joint family property. They concede that Sabapathy Iyer had a share in the suit property. When the suit was instituted, only sons could have been a part of the co-parcenery. In view of the amendment to Section 6 of the Hindu Succession Act vide Central Act 39 of 2005, as interpreted by the Hon'ble Supreme Court in Vineeta Sharma Vs. Rakesh Sharma [2020 (8) TMI 571 - SUPREME COURT] the daughters also will be entitled to equal share in the property. In that event, the share of Sabapathy Iyer was reduced to 1/7th share in the suit property. There is no dispute that Sabapathy Iyer had executed a Will in favour of defendants 2 to 4. The said Will had also been duly proved by the defendants in the manner known to law. No serious argument was advanced before me impeaching the said finding.
Thus confirm the finding of the Courts below that Ex.B.21 had been duly proved. 1/7th share of Sabapathy Iyer would devolve on defendants 2 to 4. Thus the plaintiffs as well as the fifth defendant Chandra Bai will be entitled to 6/63rd share each. Defendants 6 and 7 also will be entitled to 6/63rd share each. Defendants 2 to 4 will be entitled to 6/63rd share each and also will be entitled to Sabapathy Iyer's 1/7th share.
-
2021 (10) TMI 343 - RAJASTHAN HIGH COURT
Benami transaction - provisional attachment orders passed by the Initiating Officer u/s 24(4) of the Prohibition of Benami Property Transactions Act, 1988 - Real owners of property - transaction under the Companies Act of transferring shares of one shareholder to another - commercial complex as been leased out to the company by the JDA - HELD THAT:- As in the present case, all the properties in question being in the name of petitioner No.1-company and all applications which have been moved to the JDA authorities for surrendering land under Section 90B of the Rajasthan Land Revenue Act and for setting up a commercial building, have been made in the name of the company. The contention of the respondents with regard to intentions of petitioner Nos.2, 3 and 4 to own the plot of land adjacent to the plot owned by another company called "Paradise Complex Ltd." and therefore, the petitioner No.1-company was set up, is clearly a misreading of the provisions of the Companies Act. Merely because the petitioner nos.2, 3 and 4 can be said to be shareholders of the company, the Paradise Complex Ltd. would not make them owners of land of the company.
So far as the ownership of land is concerned, each company has right to purchase property. The Benami Act, 1988, in the opinion of this Court, would not extend to properties purchased by the company.
The transactions of the company are independent transactions which are only for the purpose of benefit of the company alone. It is a different aspect altogether that on account of benefit accruing to the company, the shareholders would also receive benefit and they may be beneficiaries to a certain extent. This would however not make shareholders as beneficial owners in terms of the definition as provided under Section 2(12) of the Benami Act, 1988. 'Company' as defined under the Companies Act, 1956 and incorporated thereunder, therefore, cannot be treated as benamidar as defined under the Benami Act, 1988. The company cannot be said to be a benamidar and its shareholders cannot be said to be beneficial owners within the meaning of the Benami Act, 1988.
The entire fulcrum of this case, therefore, rests on misinterpretation of the provisions of the Benami Act, 1988. All the transactions in the corporate world made by the company would become benami transaction if the interpretation of definition as understood by the respondents is accepted by this Court. The entire proceedings initiated under the Benami Act, 1988 deserve to be quashed and set aside.
The proceedings initiated under the Benami Act, 1988 are found to be based on income tax proceedings initiated and the statement recorded of one Madan Mohan Gupta. As per record, it is noticed that statement of Madan Mohan Gupta has not been accepted by the Income Tax Authorities for initiating any proceeding of evasion as against Rajendra Kumar Jain. The affidavits given by Madan Mohan Gupta are also not found to be reliable and he has changed his version from time to time. Transferring of shares by Madan Mohan Gupta to the petitioner nos.2, 3 and 4 could not be a ground to draw inference of benami transaction. It is opinion of the Court, the transactions done legally under the Companies Act of transferring shares of one shareholder to another, the benefit, if any, which may accrue on account of legally allowed transactions cannot be made as a ground to draw presumption of benami transaction under the Benami Act, 1988. The strict proof is required to be produced and there is no room for surmises or conjectures nor presumption can be made as the Benami Act has penal consequence.
This Court also finds strength in the arguments made by learned counsel for the petitioners regarding provisions of Section 90B of the Rajasthan Land Revenue Act. Once the land has been surrendered and the order has been passed by the JDA under Section 90B of the Rajasthan Land Revenue Act, 1956 and the land has been converted from agriculture to commercial and registered lease deed has been executed by the JDA in favour of the company, the transaction is not a benami transaction.
This Court concludes that action of the respondents in attaching commercial complex which has been leased out to the company by the JDA is illegal and unjustified and without jurisdiction.
The provisional attachment orders dated 12.01.2018 passed by the Initiating Officer under Section 24(4) of the Benami Act, 1988 and the orders passed by the Adjudicating Authority dated 30.01.2019 confirming the orders under Section 26(3) of the Benami Act, 1988 are set aside with all consequential benefits. The property shall be handed over to the company.
-
2021 (10) TMI 125 - CHHATTISGARH HIGH COURT
Suit maintainable under the provisions of Benami Transactions (Prohibition) Act, 1988 - Whether suit barred under Section 4(1) of the Benami Act, 1988?- HELD THAT:- The suit property was in possession of late Hariprasad Agrawal until his death, therefore, Savitri Devi was a benami holder of the property. There is no such pleading in the plaint that the suit property was purchased for the benefit and improvement of Joint Hindu family property. In fact, there is no mention of the Joint Hindu family property in the whole plaint. Neither there is any mention of Hindu undivided family nor the joint property of such undivided family. In this circumstance, the absence of such pleadings, which are the requirement under sub-section (3) of Section 4 of the Act, 1988, for the maintainability of the suit as an exception to the provision under Section 4(1) of the Act, 1988, is totally missing.
The prayer under Order VII Rule 11 of the CPC for rejection of plaint has to be considered only on the basis of the plaint averments and nothing else. The plaint averments as disclosed herein-above clearly shows that nothing has been pleaded to show that the suit property was held by Savitri Devi as coparcener of a Hindu undivided family and the same was for the benefit of all the coparceners of the Joint Hindu family. This being the position on the basis of the facts and pleadings in the plaint, there is no material to draw conclusion that the suit filed by the respondents is covered under the exception as provided under Section 4 (3) of the Act, 1988. This being the conclusion, the suit filed by the respondents appears to be clearly barred under Section 4(1) of the Benami Act, 1988 and in such a case the plaint of the respondents is liable to be rejected under Order VII Rule 11(d) of the CPC.
As held that the impugned order passed by the learned trial Court is erroneous and unsustainable, therefore, the same is set aside. The application of the petitioners under Order VII Rule 11 of the CPC is allowed.
-
2021 (9) TMI 317 - SC ORDER
Benami transaction - benami ownership of the plaintiff over the suit property taken by the defendant in his written statement - right of coparcener in the Hindu Undivided Family - claiming a decree for mandatory and permanent injunction for directing the defendant, the present appellant to hand over vacant possession of the property in question and mesne profits - The plaintiff had pleaded that she became the owner of property by virtue of gift deed executed on 03.09.1984 by her father- Late Sh. K.B. Midha - HELD THAT:- The husband of the plaintiff and the defendant are real brothers being sons of Late Sh. Krishna Lal Gulati. The property in question was gifted by the father of the plaintiff to her daughter i.e. the plaintiff. The defendant in the written statement pleaded many other facts relating to joint business of the family and the partition of the assets of family of Late Sh. Krishan Lal Gulati. The assertion made by the defendant in the written statement was denied by filing a rejoinder.
The plea raised by the appellant is that the plaintiff was a Benami holder of the property. Such plea is barred in terms of Section 4(2) of the Act. Since such plea was not available in law, the High Court was justified in passing a decree on the basis of the written statement filed.
The arguments that the plaintiff was holding the property in fiduciary capacity is not tenable in as much as the averment made by the defendant is of passing the consideration in favour of father of the plaintiff. The father of the plaintiff was not holding the property in a fiduciary capacity for the defendant. Still further, the defendant has not pleaded that the Plaintiff or her father had any fiduciary capacity as against the defendant is concerned.
In the present case, the father of the plaintiff had no fiduciary relationship with the defendant falling in Section 4(3)(b) of the Act.
The finding recorded by the Division Bench of the High Court in respect of blending of the property by the plaintiff in the Joint Hindu Family will arise only if it is a case falling under Clause (a) of sub-Section (3) of Section 4 of the Act, 1988. Such was not the case set up by the defendant. In view thereof, we do not find any merit in the present appeal. The appeal is dismissed.
As the plaintiff is giving up her claim of mesne profits. The amount of ₹ 12,00,000/- (Rupees Twelve Lakhs) deposited in terms order dated 06.11.2015 of this Court be refunded to the defendant subject to the condition that the defendant hands over vacant physical possession of the property in question to the plaintiff within two months from today.
-
2021 (9) TMI 311 - MADRAS HIGH COURT
Benami Transactions - provisional attachment of property - beneficial owner of the property - Scope of amendment Act - HELD THAT:- In the present case, investigations and search were conducted prior to the amendment Act. The alleged benami transactions were also occurred prior to the amendment. But, the provisional attachment under Section 24 was made after the amendment, which is certainly permissible under Section 1 Sub- Section (3) of the Act. Thus, the reference made by the learned counsel for the petitioner regarding Sub-Section (3) to Section 3 cannot have any application in respect of the facts and circumstances of the case on hand.
In the present case, it is not in dispute that the impugned order dated 12.05.2017, is an order of provisional attachment passed under Section 24(4)(a)(i) of the Benami Transactions (Prohibition) Amendment Act, 2016 and the second amendment order dated 26.05.2016 is the notice to show-cause under Section 26(1) of the Act.
Thus, for all purposes, it is only the commencement of proceedings under the Act and the petitioner has to respond to the show cause notice by submitting their explanations/objections along with the documents and evidences and thereafter, the authorities are bound to adjudicate the matter in the manner provided and take appropriate decision. This being the scope of the Act, the petitioner has misconstrued the provisions based on certain incorrect interpretations, filed the present Writ Petition. Now, the impugned show cause notice dated 26.05.2017 is to be responded by the petitioner by submitting their explanations/objections, if any and thereafter, the authorities are bound to take a decision, considering the documents and the objections, if any filed by the petitioner. Thus, the petitioner has approached this Court at the initial stage and the adjudication is yet to be completed.
Petitioner is at liberty to submit his objections/defence statements, evidences and documents, if any, within a period of three weeks from the date of receipt of copy of this order and on receipt of such objections etc., the respondents are bound to continue the proceedings and complete the same by following the procedures as contemplated as expeditiously as possible, since the matter is pending for a long time and the petitioner is directed to co-operate for the completion of proceedings instead of making an attempt to prolong and protract the issues on flimsy grounds.
-
2021 (8) TMI 820 - MADRAS HIGH COURT
Benami transaction - real owner of bus and route permit - plaintiff purchased the bus and route permit in the name of the first defendant out of love and affection - bar of the suit under Section 4 of Benami Transactions (Prohibition) Act, 1988 - Plaintiffs have claimed the relief of declaration that the suit bus and route permit are belonging to them and for permanent injunction originally claimed against the first defendant restraining her from alienating or encumbering the bus and route permit and also restraining her from interfering with peaceful possession and enjoyment of the bus by the plaintiffs - Availiability of bar under Section 94 of the Motor Vehicles Act - HELD THAT:- Plaintiffs have claimed the relief of permanent injunction restraining the defendants 2 to 4 from transferring the suit schedule route permit to any third party without the consent of the plaintiffs, by impleading the transport authorities as defendants 2 to 4. During the pendency of the suit, the first defendant has filed a petition for withdrawal of her counter claim and the same was allowed and that thereby, the counter claim was permitted to be withdrawn without liberty and consequently, the counter claim of the first defendant was ordered to be dismissed as withdrawn.
The plaintiffs also filed a memo stating that they had impleaded the defendants 2 to 4 as formal parties and as such, the relief claimed against them is given up. It is further evident that since the defendants have not raised any objection, the said memo was ordered to be recorded. As rightly contended by the learned counsel for the plaintiffs and as rightly observed by the learned Trial Judge, since the relief claimed as against the transport authorities were already given up and the reliefs claimed against the first defendant alone are pending, the question of bar under Section 94 of the Motor Vehicles Act does not arise at all.
Benami transaction - Available evidence clearly indicates that the case of the plaintiff that the property was purchased by her from and out of the income from the 'B' schedule property is more probable and acceptable and the fact that the mother had contributed funds for the purchase of the property in the name of her son having been proved, the claim of the first plaintiff with reference to 'A' property could not be said to be barred by the provision of Benami Transactions (Prohibition) Act, 1988.
Transaction was between the mother and the son and the mother has claimed that she has purchased the property in the name of her son. In the case on hand, the transaction is also between the mother and the sons but here, the sons are claiming that they have purchased the property in the name of their mother - the plaintiffs had taken a stand that the first defendant/mother is depending on them and she has no other income - as rightly pointed out by the plaintiffs' side, they have been alleging that the transactions were of the year 1997 and 2011 and the suit was laid in the 2013 and as such the Benami Transactions (Prohibition) Act, has no application. As rightly observed by the Trial Court, the issue is not a pure question of law but mixed question of fact and law and the same can be gone into only at the main trail.
As not in dispute that the plaintiffs' side witnesses were already examined and when the first defendant's side evidence was in progress, the first defendant has come forward with the above petition. As already pointed out, the suit was filed in the year 2013 and when the trial was at the fag end, she has filed the above petition in the year 2018 for rejecting the plaint. Considering the facts and circumstances, as already observed by the learned Trial Judge, the above petition came to be filed only to drag on the proceedings.
The decision of the Trial Court in dismissing the petition for rejection of the plaint cannot be found fault with and this Court is entirely in agreement with the same.
-
2021 (8) TMI 245 - CHHATTISGARH HIGH COURT
Benami Transaction - Prohibition of the right to recover property held benami - disputed joint family property - acquisitions by and in the name of a coparcener in a Hindu undivided family or the benefit of such coparceners in the family - HELD THAT:- The pleading of the plaintif Yakub Mohammad is that disputed property is a joint family property and appellants/defendants are his real brother but the disputed property is on his name and this dispute cannot be decided only by advancing argument while deciding the application under Order 7 Rule 11 of CPC. It is clear from order sheets that appellants/defendants did not file written statement and they had only filed an application under Order 7 Rule 11 of CPC.
Hon'ble the Supreme Court has already held in Pawan Kumar [2019 (4) TMI 232 - SUPREME COURT] that the disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintif in the plaint, without any doubt or dispute shows that the suit is barred by any law in force.
Lower appellate Court has rightly observed that the order of learned trail Court being not sustainable in the eye of law set-aside and remitted back the case to the trial Court for deciding afresh. The order of the learned appellate Court is based on proper appreciation of law laid down by Hon'ble Supreme Court in Pawan Kumar Vs. Babulal since Deceased Through Legal Representatives and Others which does not calls for interference by this Court.
-
2021 (6) TMI 553 - MADRAS HIGH COURT
Benami transactions - declaration to declare the suit schedule properties as properties of the plaintiff - Firm/Company file a suit for partition on behalf of one of the partners to claim his share - plaintiff is claiming the rights by virtue of amending the pleadings - HELD THAT:- The Court, ultimately is going to decide the right of the parties to the suit, in the 27 items of the suit schedule property even without amending and subsequent to the amendment also, the Court will decide the same. As long as when the Court is not going to decide the right against any of the properties not mentioned in the suit schedule, it would not amount to bringing a new case to change the character, nature and basic structure. In the present case, no such right is going to be decided against the properties which are not mentioned in the original suit schedule properties before the amendment. Therefore, the amendment of the pleadings is not going to change the character, nature and basic structure of the suit.
Even this Court is of the view that the right claimed by the plaintiff in the suit is not proper. Subsequent to the amendment of pleadings only, it would be proper. Initially, one of the partners viz., P.Sivanantham claimed that he is entitled for 22.5% shares in the Firm and therefore the said share should come to the Company. This way of laying the claim is not proper.
This Court is of the considered view that a Firm/Company cannot file a suit for partition on behalf of one of the partners to claim his share and thereafter to treat it as firm/company property. Firm/Company can file suit to determine its right in the properties but not the right of partner in the firm's/company's property. The partner's right in the firm/company will accrue only in the event of dissolution of the Firm or he will get dividend for his share in the Company in the event of dissolution of the Company. No such situation that arose in the present case. Thus, the suit was originally not filed in a proper manner. Now, by virtue of amendment, the plaintiff is not going to introduce any new plea, but by ignorance, the suit was filed and same has to be corrected legally. Further, without amendment, the right of the parties cannot be adjudicated in a proper manner and allowing this amendment will no way prejudice the right of any of the parties of the suit. Therefore, this Court feel that the amendment in the pleadings is necessary to adjudicate the rights of the parties.
The amendment sought for in the relief is only for declaration to declare the suit schedule properties as properties of the plaintiff. This is the consequential relief. This Court does not find any irregularity in allowing this relief and with the amendment of pleading and the prayer, the Court can render complete justice to the parties. Accordingly, the amendment is necessary.
When question of limitation was raised before the Court below, the Court below, instead of considering the limitation on merit, it has simply rejected the plea of the revision petitioners stating that the plea of limitation would be considered at the time of trial. As far as this finding is concerned, this Court does not find any error.
Benami Transactions (Prohibition) Act, 1988 will not apply. As far as this finding is concerned, this Court is not agreeing with the finding of the Court below. In an amendment petition, the Court below cannot come to the conclusion whether Benami Transactions (Prohibition) Act, 1988 will apply or not without allowing the parties to let in evidence. Therefore, the finding of the Court below with respect to the claim of the plaintiff would not be affected in view of Section 4(9)(b)(2) of amended Benami Transactions (Prohibition) Act,1988 is set aside and the same can be decided by the trial Court by framing appropriate issue and decide the same in accordance with law after allowing the parties to let in evidence. Therefore, the finding of the Court below on the aspect of non- application of Benami Transactions (Prohibition) Act,1988, alone is set aside.
-
2021 (6) TMI 552 - ANDHRA PRADESH HIGH COURT
Benami transaction - real owner of the property - continuation of the joint Hindu family - Whether items No. 1 of the plaint 'A' schedule was purchased by the deceased 1st appellant in the name of the 1st respondent benami and if the claim so set up by the appellants in respect of this property is hit by the provisions of the Prohibition of Benami Property Transactions Act, 1988? - HELD THAT:- A suit or claim or action basing on a plea of benami in respect of its subject matter shall not lie against the person who claims being the real owner of this property.
The 1st respondent is the owner, who purchased this property in terms of Ex. A1 and Ex. A2 title deeds. It should be noted that execution of Ex. A1 and Ex. A2 sale deeds by the erstwhile owners is not disputed and the fact that they stand in the name of the 1st respondent. The prohibition envisaged in terms of Section 4(1) of the Act is absolute and imperative in its effect.
There is a different version in the written statement of the 1st respondent that, when there was a notice issued by Registration Department after registration of these sale deeds, when he sought an advice from his father, these sale deeds were retained by him. Nonetheless, these circumstances are indicative of the fact that these brothers were given to keeping these records with their father and in his custody. Further to note in this context is that they were all living and staying in the same premises during that time. Therefore, there is nothing unusual either for the 1st respondent or the 2nd appellant to hand over these title deeds or documents to their father.
Even otherwise, participation of the 1st appellant in bargaining to acquire this house or the site, which the 2nd appellant purchased from the very same vendors, cannot be an unusual factor.
When the burden is on the appellants to establish the nature of these sale transactions of such tainted nature to call the 1st respondent an ostensible owner, who held them benami for the joint family, it is for them to place cogent and convincing material of acceptable nature. The material on record indicates that the appellants failed to discharge this burden in terms of Section 104 of the Evidence Act. In these circumstances, any deficiency in the evidence of the 1st respondent is not a factor by itself, to assist them.
Trial Judge held that the 1st respondent failed to produce satisfactory evidence to show that he himself has contributed funds to purchase this house. When Ex. A1 and Ex. A2 themselves are the title deeds by which the 1st respondent had acquired this house as per their recitals, they bear a presumption in his favour. This presumption is not discharged by the evidence adduced by the appellants. Failure of the 1st respondent to examine any of the attestors or scribe to these sale deeds as pointed out by the learned trial Judge, is not sufficient to accept the version of the appellants. In fact, it was for the appellants to have had examined them to support their contention that the funds had flown from the 1st appellant to acquire this property, to prove and demonstrate that he had taken active role in those circumstances including at the time of registration of the documents.
One of the contentions of the appellants is that Ex. A1 and Ex. A2 sale deeds were obtained in the name of the 1st respondent on account of an astrologer's advice. This reason is obviously false. If contents of Ex. X1 Will and testimony of the 2nd appellant as P.W. 2 are considered for argument sake, it is clear that it was with a view and intention to get over and avoid any difficulty or liability in terms of Income Tax Act, these sale deeds were obtained in the name of the 1st respondent. Thus, one of the strong circumstances sought to rely on by the appellants and to explain the purpose behind in obtaining Ex. A1 and Ex. A2 in the name of the 1st appellant, falls to ground on their own showing.
One of the contentions advanced in this appeal for the appellants is that there is sufficient proof of continuation of the joint Hindu family of these parties and retention of certain property for the benefit of this joint family is a strong indicator. There is nothing on record to indicate that this erstwhile joint Hindu family continued and leaving aside certain properties was for common benefit and enjoyment. Apparently, items 2 and 3 of the plaint 'A' schedule were retained where the firewood business was continuing even when the 1st appellant was attending to it, after the partition in the year 1979. Beneficial enjoyment of certain items of the property of the erstwhile joint Hindu family after partition and division in status, mind and kind, cannot clothe the entire set up to call an unity in right, possession and enjoyment, as joint tenants.
On twin grounds that the suit as such could not have been maintained in respect of item 1 of the plaint 'A' schedule viz., on the ground of benami set up by the appellants and on another ground that the evidence adduced by them at the trial is not sufficient to support their stand in respect of this house qua the 1st respondent, all the contentions of the appellants should be rejected.
Findings of the learned trial Judge in this context with reference to application of Section 4(1) of the Prohibition of Benami Property Transactions Act, 1988 should be upheld and that item No. 1 of the plaint 'A' schedule thus be held that it is the property of the 1st appellant, who has right, title and interest to it by virtue of Ex. A1 and Ex. A2 sale deeds. Thus, this point is answered.
Whether Ex. A24 Will is true, valid and binding on the respondents? - 1st appellant died during pendency of the suit - HELD THAT:- While considering issue No. 2 and additional issues 1 and 2 framed on 15.03.1996 and issues 1 and 2 framed on 20.02.1997 the learned trial Judge accepted this Will. The entire process of acceptance of Ex. X1 by the learned trial Judge is bereft of any reasons. The requirements of law as discussed above in the context of application of Section 68 of the Evidence Act and Section 63 of the Indian Succession Act, more importantly to dispel such serious suspicious circumstances surrounding execution of Ex. X1, were not at all considered or discussed. The learned trial Judge jumped to the conclusion that it was executed by the deceased 1st appellant in a sound and disposing state of mind basing on the evidence of P.W. 3 alone. Therefore, the findings so recorded on these issues in Para-81 of the Judgment of the trial Court require interference holding that the appellants failed to establish and prove the original of Ex. X1-Will. Therefore, the testamentary disposition of the property claimed by the appellants, as if by the deceased 1st appellant cannot stand. Consequently, it has to be held that there is no proof offered by the appellants that the original of Ex. X1 Will is true or valid nor it binds the respondents 1 to 4. Therefore, the cross-objections of the 1st respondent stand accepted.
Whether the plaint 'A' and 'B' schedule properties are amenable for partition among the appellants 1 and 2 and respondents 1 and 2? - HELD THAT:- There is no reference to these two items in Ex. A11 legal notice issued by the 1st and 2nd appellants to the 1st respondent claiming that they are the properties of the then joint family.
It is an undisputed fact that prior to the partition of 1979 all other movable properties of the family were divided among all the members of this erstwhile joint family. Either acquisition or retention of these two items was never an issue among these parties and of their enjoyment later. The material on record also established that these two items were always enjoyed by the 1st respondent himself.
Considering the reasons assigned by the learned trial Judge and on re-appraisal of the evidence on record, these findings have to be confirmed. Thus, these two items in plaint 'B' schedule and item 1 of the plaint 'A' schedule are not available or amenable for partition among the appellants and the respondents. Thus, this point is answered.
Whether the judgment and decree of the trial Court are proper and if require interference? - HELD THAT:- As a consequence, the ultimate relief granted by the learned trial Judge in substance, did not get altered since preliminary decree passed is confined only with reference to items 2 and 3 of plaint 'A' schedule. The findings relating to devolvement or distribution of 1/4th share allottable to the deceased 1st appellant, gets altered. In the sense in terms of Section 6 of the Hindu Succession Act prior to amendment in the year 2005, 1/4th share of the 1st appellant in items 2 and 3 of the plaint 'A' schedule shall be divided among the 1st appellant, the 2nd appellant, 1st respondent and 2nd respondent notionally. Since the 2nd appellant and 2nd respondent are no more, their respective legal heirs are entitled to the share allottable to them in respective proportions. Therefore, items 1 and 2 of plaint 'A' schedule be divided into three (03) equal shares and the 1st respondent is entitled for one such share, legal heirs of the 2nd appellant viz., the appellants 3 and 4 and respondents 7 and 8 are entitled for one such share and whereas the legal heirs of the 2nd respondent are entitled for one such share. Accordingly, there shall be modification of the preliminary decree granted by the trial Court.
Appeal is dismissed and cross objections are allowed. Consequently, the preliminary decree passed by the trial Court is modified as follows:
(1) items 2 and 3 of the plaint 'A' schedule shall be divided into three (03) equal shares. One such share shall be allotted to the 1st respondent and whereas one such share shall be allotted to the legal heirs of the 2nd appellant viz., the appellants 3,4 and respondents 7 and 8 together. Similarly, legal heirs of the 2nd respondent including respondents 4 and 5 are entitled for one such share.
(2) The decree and judgment of the trial Court in respect of item 1 of plaint 'A' schedule and items 1 and 2 of plaint 'B' schedule stand confirmed.
(3) The parties including all the legal heirs whether on record or not of the deceased 2nd appellant and 2nd respondent are at liberty to file separate applications for passing of final decree in terms of this preliminary decree.
(4) In the circumstances, the parties are directed to bear their own costs throughout
-
2021 (6) TMI 6 - MADRAS HIGH COURT
Benami transaction - orders barred by limitation - SCN alleging that the petitioner is a benamidhar for Marg, its parent company, which beneficially owns the property - whether the impugned orders dated 26.08.2019, 27.08.2019 and 28.08.2019 are barred by limitation - HELD THAT:- In this case, the records are lacking to prove that after the matters were reserved for orders on 17.07.19, the orders were, in fact, passed prior to 31.08.19. The matters were not listed for pronouncement. The despatch of the orders to the petitioners was only on 04 and 11.09.19 and there is no record to establish transfer of files to the registry/office of the authority in the interim before 31.08.2019.
The provision imposes a ban upon the passing of an order beyond the period stipulated, a prohibition. It is a burden cast upon the respondent and one that the respondent must comply with, and prove that it has satisfied, within the statutory timeframe provided. In this case, it is of the view that this burden has not been discharged. In fact, the attempt to establish compliance is also lukewarm. R1 the Adjudicating Authority, has chosen not to file a counter and the only counter filed is by the Deputy Commissioner of Income Tax, Chennai, on his and on behalf of R1. Being a matter involving the internal records of R1, particularly one that has serious repercussions and ramifications on the veracity of the orders passed, it would have been appropriate for R1 to explain the exact position.
The object and purpose of the enactment as well as the rigour it imposes, and the serious civil consequences that it carries require that the procedure and times lines set out there, are followed scrupulously. There must be no shadow cast upon the processes followed in decision making and rendition, that must be unimpeachable and cast-iron. In the paragraphs leading to this conclusion, I have set out the narrative in regard to the decision making process as well as the gaps, lapses as well as mismatch in the dates of the intervening events, prior to dispatch of the orders. We are of the view that the prohibition imposed by the provisions of Section 26(7) will apply squarely in this case and the impugned orders cannot be said to have been passed within the period of limitation, as provided. Writ Petitions are allowed and the impugned orders quashed.
........
|
