TMI Blog2021 (9) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment 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 ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and items of gold belongs to her and the Income Tax Search Team conducted an enquiry. The Prohibitory Orders dated 24.11.2016 issued to the petitioner's spouse by the Deputy Director (Investigation Wing), Income Tax Department were subsequently lifted on 18.01.2017. She was being assessed with reference to the assets found during search. 5. Under these circumstances, to the shock and surprise of the petitioner, the third respondent passed the impugned order, dated 12.05.2017, arraying the petitioner as a beneficial owner of the property attached provisionally without any justification much less legal evidence of a definite nature. The third respondent passed the impugned order under Section 24(4)(a)(i) of the Benami Transactions (Prohibition) Amendment Act, 2016 [hereinafter referred to as the 'Act']. The amended Act came into force with effect from 01.11.2016. Thus, the petitioner states that the amended Act shall be applicable only to the Benami transactions entered into on or after the date of commencement of the Benami Transactions (Prohibition) Amendment Act, 2016 i.e. on or after 01.11.2016 as provided under Section 3(3) of the Act. Even the impugned order show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amendments are carried on, in order to make the legislation more effective. When Section 1 Sub- Section (3) clarifies the said position that except Sections 3, 5 and 8 and the remaining provisions of the Act shall be deemed to have come into force on 19th day of May 1988, when the original Act namely the prohibition of Benami Property Transactions Act, 1988 came into force, then, the very ground raised by the petitioner in this regard is unsustainable. Section 24 is Notice and attachment of property involved in Benami transaction. As far as the impugned order dated 12.05.2017 is only a provisional attachment made under Section 24(4)(a)(i) of the Benami Transactions (Prohibition) Amendment Act 2016 and after the provisional attachment, the notice to show-cause under Section 26(1) was issued to the petitioner, who is the beneficial owner. Therefore, the procedures as contemplated under the provisions of the Act are scrupulously followed and thus, the petitioner has to face the adjudication in the manner prescribed. Instead of facing the adjudication, the petitioner is making an attempt to prolong the issue for the purpose of escaping from the clutches of law. Thus, the Writ Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e property is liable to be confiscated. 11. Relying on the said judgments, the learned counsel for the respondents 1 to 3 emphasized that the very initiation, per se , is invalid and in violation of the provisions of the amended Act. Thus, the Writ Petition is to be dismissed. 12. Let us examine the nature of the impugned proceedings passed with reference to the provisions of the Act. As discussed above, Section 1 Sub-Section (3) clarifies that the provisions of Sections 3, 5 and 8 shall came into force at once, and the remaining provisions of the amendment Act shall be deemed to have came into force on 19th day of May,1988. Section 3 contemplates Prohibition of benami transactions . Though the petitioner has relied on Sub-Section (3) to Section 3, stating that whoever enters into any benami transaction on and after the date of commencement of the Benami Transactions (Prohibition) Amendment Act, 2016, shall, notwithstanding anything contained in Sub-Section (2), be punishable in accordance with the provisions contained in Chapter VII, Section 1 Sub- Section (3) clarifies that the other remaining provisions of the Act shall be deemed to have come into force on the 19th day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 24, the Adjudicating Authority shall issue notice, to furnish such documents, particulars or evidence as is considered necessary on a date to be specified therein, on the following persons, namely:- (a) the person specified as a benamidar therein; (b) any person referred to as the beneficial owner therein or identified as such; (c) any interested party, including a banking company; (d) any person who has made a claim in respect of the property: Provided that the Adjudicating Authority shall issue notice within a period of thirty days from the date on which a reference has been received: Provided further that the notice shall provide a period of not less than thirty days to the person to whom the notice is issued to furnish the information sought. 16. Therefore, the scheme of the Act is unambiguous under Section 24(4)(a)(i). A provisional attachment of property shall be made in order to prevent the persons from encumbering the property during the process of adjudication and after passing the provisional attachment, if the proceedings are to be continued, then, an adjudication under Section 25 and thereafter Section 26(1), show-cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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