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TMI Blog2019 (8) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation of Provisional Attachment Order dated 25.01.2017 passed under Section 24(3) prohibiting and restricting the SBI, NS Road, Branch, Kolkata from delivering the movable property of Rs. 28,10,625/- lying in the account number 35495116852 in the said Bank which was subsequently vide order dated 25.04.2017 continued under Section 24(4)(a)(i) of the said Act until such term as the order under Section 26(3) of the Act is passed by the Adjudicating Authority. B. In the proceeding before the learned Adjudicating Authority the present appellant was arrayed as defendant no. 8. C. In the said reference it has been alleged that the present appellant is the beneficiary to whom a cash trail has been identified. It is further alleged that, from the cash trail of M/s. Apsara Merchandise Pvt. Ltd., allegedly nontraceable company, unaccounted cash from the aforesaid company was transferred to several persons/entities including the present appellant. The present appellant, according to the respondent, isa beneficiary/recipient of funds routed through the bank accounts of M/s. Apsara Merchandise Pvt. Ltd. It is further alleged that the appellant has received the funds through M/s. Daintree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d back Rs. 22,50,000/-, Rs. 16,00,000/- and Rs. 36,50,000/- by RTGS using 3 cheques bearing cheque numbers 47,50 and 48 respectively on 15.11.2016 from HDFC Bank Ltd., Morbi-Gujarat Branch having account number 03078300000267. It is the contention of the appellant that the money which has been paid to the appellant as advance has been returned back by them cancelling the order based on inquiry,that the transaction which they have explained above in no way the transaction which have been made by them with M/s. Daintree Metal Pvt. Ltd. and for which they have been considered as Beneficial owner no.7 can fall within the definition of Benami Transaction by any means. B. The learned counsel for the appellant drawn our attention to Para no. 3 of the discussion part of the impugned order and submitted that the Initiating Officer himself has not said anything substantial against D-2 to D-11. C. Learned counsel for the appellant has argued that the appellant is not a beneficial owner. According to him the transaction was not completed at all as the money received were immediately returned to the company from which the amount was received. The said transaction is not covered under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he funds so transferred by DMPL to the appellant on 13.11.2016 & 14.11.2016 were claimed to have been refunded by the later to the former on 15.11.2016; the fact of it being beneficial owner cannot be ruled out. Had the appellant not been the source of equivalent amount of cash of Rs. 75 lakh; AMPL would not have been avail to deposit the same in its bank a/c and transfer the same to DMPL for ultimately routing the same to the bank account of the appellant. However, the returning of the funds of Rs. 75 lakh to DMPL in the same amount proves that the property being unaccounted cash of the appellant were left with the benamidar itself for the time being most likely in view of possible and inevitable legal repercussions. The appellant basically perceived threat of investigation from government agencies including ED & IT department in the ultimate source of such cash deposits and hence, it would have returned the amount so credited to its bank a/c only to receive the benefit 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s benefit or benefit of other members in the family and the consideration for such property has been provided or paid out of the known sources of the Hindu undivided family; (ii) a person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capacity and includes a trustee, executor, partner, director of a company, a depository or a participant as an agent of a depository under the Depositories Act, 1996 and any other person as may be notified by the Central Government for this purpose; (iii) any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual; (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icating Authority, categorically stated that they have nothing to do either with the company or the amount lying in the bank account. 9. In the light of aforesaid findings of the learned Adjudicating Authority, it is the limited grievance of the appellant before this Tribunal is that when the Authority has come to the findings that the Initiating Officer has 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 Rs. 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 cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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