TMI Blog2017 (10) TMI 1653X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income Tax Act - HELD THAT:- This Court must notice the relevance of Sections 2(9)(B) and (D) of the 1988 Act (as amended) which, inter alia, collectively define a benami transaction as an arrangement in respect of a property carried out in a fictitious name where the person providing the consideration is not traceable. This Court, on the basis of materials placed, is satisfied that the IO has applied his mind to the facts painstakingly collected and the issue now requires solid factual adjudication at the level of the AA. This Court is also satisfied that the preliminary legal objection taken by Mr. Kar is not persuasive for a Writ court to interdict a proceeding under the 1988 Act qua a private limited company where the dominant shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prayer (a) of the Writ Petition upon noticing that the steps contemplated under Section 24 (supra) follow the notice of the IO and, being procedural apply in seriatim to the notice for the purpose of identifying a benami transaction prohibited in the statute book w.e.f 19 May, 1988. The orders impugned of the IO are thus not interfered with. Accordingly, no jurisdictional violation of exercise of powers under the 1988 Act (as amended) is found by this Court. - SUBRATA TALUKDAR, J. For the Petitioner : Ms. Rakhi Shroff For the Respondent : Mr. Siddhartha Lahiri, Mr. Jaydip Kar, Mr. Animesh Kanti Ghoshal JUDGMENT SUBRATA TALUKDAR, J.: Party/Parties are represented in the order of their name/names as printed above in the cause title. 2. Unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered by the IO vide his order dated 12 August, 2017 under Section 24(4) of the 1988 Act. The IO, inter alia, concluded that both the paper and the fund trails connecting to the purchase of the scheduled property in issue, inter alia, point to fictitious/nontransparent/non-visible entities. The IO found, on the basis of the available materials, that the funds utilised in the name of the Company to purchase the property in issue belonged to person/persons whose identities have not been disclosed. The usufructs of the purchase, although ostensibly in the name of the Company, may be ultimately beneficial to the nontransparent/fictitious/non-visible entities behind the suspected benami purchase. 6. Therefore, the IO ordered that the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advised, to approach the Appellate Tribunal. 10. Mr. Ghoshal submits that the profile of the investments made by the Company as evident from the facts collected by the IO connected to the purchase of the scheduled property traces its source to funds from fictitious entities which are required to be identified. On the basis of the materials available to the IO, the Company is believed to be acting as the benamdar, or, apropo the current lingo in vogue of the Ministry of Corporate Affairs (MCA), Government of India, a shell or dabba company of investors at large. 11. Mr. Ghoshal also submits that the attachment is purely provisional and is pending final adjudication by the AA. Accordingly, Learned Senior Counsel argues that the writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 14. Second, this Court must notice the relevance of Sections 2(9)(B) and (D) of the 1988 Act (as amended) which, inter alia, collectively define a benami transaction as an arrangement in respect of a pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amendment Act is answered with the observation that the 1988 Act, as amended in 2016, imbibes the colour of a statute in restraint of acts constituting benami transactions. The Act does not seek to create any vested/substantive rights, only indirectly protecting transactions which fall within the exceptions of a benami transaction, viz. Section 9(A)(i) to (iv). 20. Furthermore, Section 1(3) of the 1988 Act itself provides for prospectivity of its operative portions, viz. its penal clauses, in contra distinction to its definition/defining provisions. Furthermore, this Court has no reason to accede to Prayer (a) of the Writ Petition upon noticing that the steps contemplated under Section 24 (supra) follow the notice of the IO and, being proc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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