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TMI Blog2019 (4) TMI 2086X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2018 With R/Letters Patent Appeal No. 755 of 2019 In Special Civil Application No. 19337 of 2018 With R/Letters Patent Appeal No. 756 of 2019 In Special Civil Application No. 20858 of 2018 With R/Letters Patent Appeal No. 757 of 2019 In Special Civil Application No. 6060 of 2014 With Civil Application (For Stay) No. 1 of 2019 In R/Letters Patent Appeal No. 750 of 2019 In Special Civil Application No. 19880 of 2018 With Civil Application (For Stay) No. 1 of 2019 In R/Letters Patent Appeal No. 751 of 2019 In Special Civil Application No. 19880 of 2018 With Civil Application (For Stay) No. 1 of 2019 In R/Letters Patent Appeal No. 752 of 2019 In Special Civil Application No. 19671 of 2018 With Civil Application (For Stay) No. 1 of 2019 In R/Letters Patent Appeal No. 753 of 2019 In Special Civil Application No. 19882 of 2018 With Civil Application (For Stay) No. 1 of 2019 In R/Letters Patent Appeal No. 754 of 2019 In Special Civil Application No. 19335 of 2018 With Civil Application (For Stay) No. 1 of 2019 In R/Letters Patent Appeal No. 755 of 2019 In Special Civil Application No. 19337 of 2018 With Civil Application (For Stay) No. 1 of 2019 In R/Letters Patent Appeal No. 756 of 2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... op Shri Bhagwan Bhai Patel, M/s. Patidar Bullion Prop Shri Ajesh Patel, the beneficial owner B-It was ultimately transferred into the beneficial owner's bank accounts on the false pretext of sale of bullion. C-Shri Sanjay Soni faciliated the aforesaid transaction and, accordingly, is the abettor within the meaning of section 53 of the Act. This transaction is benami transaction. Accordingly, the PO issued by the IO u/s 24(4)(b)(i) of the Act on 25/9/2017 is hereby confirmed. It is noted that the subject matter of the aforesaid benami transaction was cash, employed in the bullion business and is capable of fast changes in hands as well as in forms. We need to reproduce below the relevant statutory provisions defining the terms "property" and "benami property" for the purposes of the enforcement of the Act- 2(26) "property" means assets of any kind, whether movable or immovable, tangible or intangible, corporeal or incorporeal and includes any right or interest or legal documents or instruments evidencing title to or interest in the property and where the property is capable of conversion of some other form, then the property in the converted form and also includes the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce with law and on merits to cover entire benami property. While parting with we wish to bring on record the fact that a huge sum has been used in these transactions and at no stage of proceedings before the Initiating Officer or before this Authority the respective defendants have been able to prove as to in whose hands the benami property was taxed under the relevant provisions of the Income-tax Act, 1961. We are of the considered opinion that the accumulated unaccounted wealth was channelized through these bank accounts postdemonetization in the disguise of business transactions. Conclusion : We have carefully considered the replies filed by the Defendants including the new beneficial owner in response to the notice issued under Section 26(1) of the Act. We have also considered the Rejoinders filed by and on behalf of the IO. We have also given due opportunity of hearing to the IO, the Defendants and ascertained the facts and evidence as deemed fit. We have also taken into account all the relevant materials. Hence for the reasons aforesaid we come to the conclusion that the subject property of the present Reference is a benami property. The Provisional Attachment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (1) specifies any property as being held by a benamidar referred to in that sub-section, a copy of the notice shall also be issued to the beneficial owner if his identity is known. (3) Where the Initiating Officer is of the opinion that the person in possession of the property held benami may alienate the property during the period specified in the notice, he may, with the previous approval of the Approving Authority, by order in writing, attach provisionally the property in the manner as may be prescribed, for a period not exceeding ninety days from the date of issue of notice under sub-section (1). (4) The Initiating Officer, after making such inquires and calling for such reports or evidence as he deems fit and taking into account all relevant materials, shall, within a period of ninety days from the date of issue of notice under sub-section (1),- (a) where the provisional attachment has been made under sub-section (3),- (i) pass an order continuing the provisional attachment of the property with the prior approval of the Approving Authority, till the passing of the order by the Adjudicating Authority under sub-section (3) of section 26; or (ii) revoke the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (2) Where the property is held jointly by more than one person, the Adjudicating Authority shall make all endeavours to serve notice to all persons holding the property: Provided that where the notice is served on anyone of the persons, the service of notice shall not be invalid on the ground that the said notice was not served to all the persons holding the property. (3) The Adjudicating Authority shall, after- (a) considering the reply, if any, to the notice issued under subsection (1); (b) making or causing to be made such inquiries and calling for such reports or evidence as it deems fit; and 13 (c) taking into account all relevant materials, provide an opportunity of being heard to the person specified as a benamidar therein, the Initiating Officer, and any other person who claims to be the owner of the property, and, thereafter, pass an order- (i) holding the property not to be a benami property and revoking the attachment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court: 46. Appeals to Appellate Tribunal. - (1) Any person, including the Initiating Officer, aggrieved by an order of the Adjudicating Authority may prefer an appeal in such form and along with such fees, as may be prescribed, to the Appellate Tribunal against the order passed by the Adjudicating Authority under sub-section (3) of section 26, within a period of forty-five days from the date of the order. (2) The Appellate Tribunal may entertain any appeal after the said period of forty-five days, if it is satisfied that the appellant was prevented, by sufficient cause, from filing the appeal in time. (3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (4) An Appellate Tribunal while deciding the appeal shall have the power- (a) to determine a case finally, where the evidence on record is sufficient; (b) to take additional evidence or to require any evidence to be taken by the Adjudicating Authority, where the Adjudicating Authority has refused to admit evidence, which ought to have been admitted; (c) to require any docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s far as may be, apply in the case of appeals under this section. 4. Accordingly, it is submitted that learned Single Judge ought not to have passed oral order dated 12.12.2018 in group of writ petitions staying order dated 30.10.2018 passed by Adjudicating Authority in reference case in exercise of extraordinary jurisdiction under Article 226 and 227 of the Constitution of India when inbuilt remedies are available under Sections 46 and 49 of the Act, 1988. 4.1. Inter alia it is submitted that learned Single Judge overlooked nature of directions given by Adjudicating Authority and irrespective of the fact that whether respondent is benamidar or beneficial order after giving opportunity of hearing upon issuance of show cause of notice and order was passed and, therefore, it is not violative of principles of natural justice. Therefore, interference of this Court is required since all proceedings have come to grinding halt. 5. One of the main contention raised by Mr.Mihir Thakore, learned Senior Counsel appearing for the appellant in Letters Patent Appeal No.755 of 2019 is about powers exercised by the Adjudicating Authority which has limited jurisdiction either to adjudicate pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uires in the matter to identify the present form of the benami property which has been the subject matter of the benami transaction and attached provisionally by respondent NO.2. That applicant No.1 accede his jurisdiction in giving certain directions as contained in para 19.6 of the order impugned before learned Single Judge inasmuch as there is no provision under the Act empowering applicant NO.1 to issue such direction. Application No.1 can either hold the property not to be a benami property and revoke the attachment order passed under Section 24(4) of the Act or hold the property to be a benami property and confirm the attachment order passed under Section 24(4) of the Act. Even otherwise also ad-interim relief is granted by learned Single Judge, for which, hearing is fixed on 4.4.2019 and, therefore, all contentions can be raised by the appellants before learned Single Judge for vacating or modifying the order passed by learned Single Judge. Learned counsel has taken us to other grounds raised before learned Single Judge which form part of the order under challenge by the authority, to which, brief mention was made by learned Single Judge while granting ad-interim relief in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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