TMI Blog2024 (3) TMI 1060X X X X Extracts X X X X X X X X Extracts X X X X ..... operty. We find substance in the argument of learned ASG that show cause notice is a detailed notice running in several pages containing several factual basis and it is within the province of adjudicating authority to decide whether property is Benami in nature and whether petitioners are liable for any action under the Act of 1988. The Division Bench declined interference against show cause notice and PAO and permitted the petitioner to raise all relevant aspects before adjudicating authority under Section 26 of the Act of 1988. We deem it proper to follow the same course. The petitioners can avail the remedies under the Act of 1988 and take all possible factual and legal grounds before the adjudicating authority . Needless to mention that judgment of Advance Infra Developers (P) Ltd [ 2023 (12) TMI 620 - MADRAS HIGH COURT] and other judgments can be relied upon by the petitioners before the adjudicating and appellate authority (if required) to impress upon it to take a different view than the view taken by Appellate Authority in M/s. Prism Scan [ 2024 (1) TMI 203 - APPELLATE TRIBUNAL FOR SAFEMA AT NEW DELHI] We have no doubt that if relevant grounds are taken and judgments are ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Section 2(9)(A) of Amending Act 2016 has a definite meaning and purpose. The first part of Section 2(9)(A) deals with transfer of the property to a person of which consideration was paid or provided by another person. The Second part has been separated from the first part by putting the word or in between. Under this second part of definition, if the property is held by a person whose consideration has been provided or paid by another person, then also it would be a benami transaction. It is strenuously contended that the Appellate Tribunal came to hold that despite the judgment of Supreme Court in Ganpati Dealcom Private Limited (supra), the action is permissible if property is held after Amending Act came into being. In this view of the matter, if the petitioners are relegated to avail the in house remedy under the Act of 1988, it will be a futile exercise taking into account the view already taken by the Appellate Tribunal in M/s. Prism Scan Express Pvt. Ltd. (supra) . 6. Furthermore, it is argued that High Court of Madras in (2023) 157 Taxmann. Com 307 (Deputy Commissioner of Income-tax (Benami Prohibition) Vs. Advance Infra Developers (P.) Ltd. already held that in the lig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject matter of adjudication in the instant cases. In nutshell, it is urged that no case is made out by petitioners for interference against the show cause notice and against the Provisional Attachment Order (PAO). 10. In the rejoinder submissions, Shri Sumit Nema, learned Senior Counsel fairly submitted that definition of property in the Act of 1988 is wide enough to include shares . As noticed above, his bone of contention is that the case of the petitioners is squarely covered by the judgment of Supreme Court in Ganpati Dealcom Private Limited (supra) and in the teeth of order of Appellate Tribunal in the case of M/s. Prism Scan Express Pvt. Ltd. (supra) , the petitioners may not be relegated to avail remedy under the Act of 1988. 11. We have heard the parties at length and perused the relevant record. 12. The document dated 05.01.2024 is merely a show cause notice. The scope of interference by this Court at this stage as rightly pointed out by learned ASG is limited against the show cause notice. The Apex Court in the case of Special Director Another Vs. Mohd. Gulam Ghouse Another reported in (2004) 3 SCC 440 has held as under : Unless, the High Court is satisfied that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Sub-section (1) of Section 26 of the Act. Section 26 (3) makes it clear that the adjudicating authority will examine the entire issue and relevant material. Sub-section (3) of Section 26 reads as under: (3) The Adjudicating Authority shall, after (a) considering the reply, if any, to the notice issued under sub-section (1); (b) making or causing to be made such inquiries and calling for such reports or evidence as it deems fit; and (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 order; or (ii) holding the property to be a benami property and confirming the attachment order, in all other cases. A plain reading of Sub-section (3) makes it clear that the adjudicating authority is obliged to examine the stand of alleged Benamindar in reply to the show cause notice. He is further obliged to make further inquiry or take into account further report or evidence which he deems fit for deciding the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erference is warranted by this court at this stage. As per the scheme of the Act, the petitioner can raise all possible grounds before the adjudicating authority. The adjudicating authority is best suited and statutorily obliged to consider all relevant aspects. Thus, at this stage no case is made out for interference. Moreso, when adjudicating authority has already fixed the hearing on 23.08.2017. Resultantly, the petition is dismissed. (Emphasis Supplied) 15. The said order got a stamp of approval by Division Bench in WA No. 704/2017 decided on 16.08.2017. The Division Bench in WA No. 704/2017 opined as under: We do not find any merit in the present appeal. It is the Adjudicating Authority who is to decide the question of Benami nature of the property. The proceedings under Section 24 of the Act contemplates the issuance of show cause notice as to why the property specified in the notice should not be treated as Benami property. However, the substantive order of treating the property as Benami is required to be passed by Adjudicating Authority under Section 26 of the Act only. Therefore, the appellant is at liberty to take all such plea of law and facts as may be available to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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