TMI Blog2019 (8) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... as not said anything substantial against the present appellant and that the appellant has nothing to do with the M/s. Apsara Merchandise Pvt. Ltd. or the amount lying in the bank account of benamidar which is not legally claimed by the appellant, the Adjudicating Authority ought to have held that the appellant is not a Beneficial Owner with regards to the amount of ₹ 28,10,625/- lying in the aforesaid account of SBI and attached by the Initiating Officer and that the appellant‟s name ought to have been removed as a Beneficial Owner - It is clear from the impugned order that the learned Adjudicating Authority, on the basis of material, facts and circumstances has held that the Initiating Officer has not said anything substantial against the appellant and also has considered the plea of the appellant that it is not claiming the amount lying in the bank account of benamidar.The most important aspect is also that the Initiating Officer has not challenged the aforesaid findings of the learned Adjudicating Authority. The appellant is not a Beneficial owner within the meaning of the definitions defined under Sections 2(12) of PBPT Act, 1988 - appeal allowed. - FPA-PBPT-13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant contested the matter before the Ld. Adjudicating Authority. It is the consistent stand of the appellant that the appellant is not the beneficial owner much less in any alleged benami property. It does not have any connection or dealing with the M/s.Apsara Merchandise Pvt. Ltd. That there is no relation or connection of the appellant herein with the referred bank account or money lying in the said account of M/s. Apsara Merchandise Pvt. Ltd. 4. CASE OF THE M/s. ISCON CERAMIC PVT. LTD. A. M/s. Iscon Ceramic Pvt. Ltd. are the manufactures of ceramic wall tiles since 2007. They have more than 250 dealers on all India basis and are exporting ceramic tiles also. Their turnover for the year ended on 31.03.2015 and 31.03.2016 was ₹ 27.09 crores and ₹ 16.47 crores respectively. They are selling goods in various states of India. They received an enquiry to supply Ceramic tiles in Kolkata against which they provided rates and other terms to M/s. Daintree Metal Pvt. Ltd. The party confirmed an order for value of more than ₹ 75 lakhs against which the appellant asked the party to make advance payment of ₹ 75 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e immediately returned to the company from which the amount was received. The said transaction is not covered under the definition of benami transaction under Section 2(9) of the PBPT Act, 1988. The appellant also do not lay any claim on the seized amount lying in the Bank. 5. CASE OF THE RESPONDENT On the other hand, the Initiating Officerhas filed reply to the appeal in which, inter-alia , contended as follows: ( i) The Adjudicating Authority has rightly and correctly passed the order and that on the basis of facts and documentary evidences the appellant was held as beneficial owner. In the instant case, it was observed from the cash/banking transaction trail of AMPL that huge amount of cash was deposited in the bank account of the benamidar, M/s. AMPL and within no time the same got routed through bank account of DMPL to reach its final destinations and that one of such destinations was M/s. Iscon Ceramic Pvt. Ltd. Further as per the statement given by Mr. AbhaySultania, son of Pawan Kumar Sultania, recorded on 24.02.2017 u/s 19 of the PBPT Act, 1988 and also his statement recorded u/s 131 of the Income Tax Act, 1961 on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nefit of such asset in some other disguised form. Hence, the Ld. Adjudicating Authority had rightly and correctly passed the order and on the basis of facts and documentary evidences the appellant was held as beneficial owner and the point raised by the appellant was not acceptable. ( ii) The plea taken by the appellant that the nature of amount so received by it was advance against purchase is clearly an afterthought. In this regard, it is apt to bring on record that the appellant is a manufacturer of ceramic wall tiled and as such, for its sales transactions it is not under any kind of statutory obligations to such the background of the buyers specially when it was not required to make credit sales and it had received the funds in advance through banking channel. Without prejudice it is also apt to put on record that had it be the case; the appellant would have produced any cogent documentary evidence viz. purchase order, rate enquiry correspondence either through post or email as the so claimed purported buyer company was located at Kolkata. Though the appellant claims that the advance was made after oral agreement; it failed to furnish any cogent informatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidual; ( iv) any person in the name of his brother or sister or lineal ascendant or descendant, where the names of brother or sister or lineal ascendant or descendant and the individual appear as joint-owners in any document, and the consideration for such property has been provided or paid out of the known sources of the individual; or ( B) a transaction or an arrangement in respect of a property carried out or made in a fictitious name; or ( C) a transaction or an arrangement in respect of a property where the owner of the property is not aware of, or, denies knowledge of, such ownership; ( D) a transaction or an arrangement in respect of a property where the person providing the consideration is not traceable or is fictitious; Explanation .- For the removal of doubts, it is hereby declared that benami transaction shall not include any transaction involving the allowing of possession of any property to be taken or retained in part performance of a contract referred to in section 53A of the Transfer of Property Act, 1882, if, under any law for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... psara Merchandise Pvt. Ltd. or the amount lying in the bank account of benamidar which is not legally claimed by the appellant, the Adjudicating Authority ought to have held that the appellant is not a Beneficial Owner with regards to the amount of ₹ 28,10,625/- lying in the aforesaid account of SBI and attached by the Initiating Officer and that the appellant‟s name ought to have been removed as a Beneficial Owner. 10. It is clear from the impugned order that the learned Adjudicating Authority, on the basis of material, facts and circumstances has held that the Initiating Officer has not said anything substantial against the appellant and also has considered the plea of the appellant that it is not claiming the amount lying in the bank account of benamidar.The most important aspect is also that the Initiating Officer has not challenged the aforesaid findings of the learned Adjudicating Authority. 11. The allegation levelled by respondent on the appellant is without any substance. The allegations based merely on presumption and presumption unless supported with proof, does not take the shape of evidence. No prima facie evidence, for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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