9911796707
Advanced Search 
TMI Blog2024 (11) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... a challenge has been made to the order dated 19.03.2020 passed by the Adjudicating Authority confirming the attachment with acceptance of reference R-1187/2019. 2. The learned counsel for the appellants submitted that despite the property purchased by appellant not out of benami transaction, it has been attached by the respondent on an erroneous presumption of facts and law. Referring to the facts of the case, it was submitted that an agricultural land of Khasra number 526/3 situated in Village Girdava, Sahanpur, U.P. has been attached by the respondent, said to be out of benami transaction. It was ignoring that the sale consideration of Rs. 27,45,000/- along with the stamp duty of Rs. 1,37,500/- was conveyed by the appellant and the sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t made reference to certain paras of the impugned order to indicate that even according to the I.O., the beneficial owner of the property remain unidentified or suspicious. Thus, the case in hand was not falling under section 2 (9) (A) of the Act of 1988 as amended by the Amending Act of 2016 defining the "benami transaction". The case may fall under section 2(9) (b) to (d) but the amendment having only prospective effect and not a retrospective effect, the transaction prior to 01.11.2016 are saved by the Apex Court in the case of "Union of India & Anr. Versus M/s. Ganpati Dealcom Pvt. Ltd." and thereby the order is not sustainable rather deserves to be set aside. 7. The appeal has been contested by the learned counsel for the respondent, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above discussion and material in possession of this office, I have reason to believe that the property mentioned above i.e. an Agricultural Land (Area- 0.610 hectare) Khasra No.526/3, Chak No. 47 as per Jot Chakbandi Aakar Patr-23 Bhag-1, situated at Village- Girdava, Sahanpur, Pargana & Tehsil Najibabad, Bijnor, U.P. is a Benami Property and Sh. Saleem, Sh. Mohammad Shameem, Smt. Munni and Sh. Mohd. Shahzad are Benamidars of the aforesaid property. However, the beneficial owner of the property is not ascertained. 9. The reiteration of the aforesaid fact exist even in subsequent paras in reference to the reply of the defendant . Para 15 to 17 of the order in reference to the reply of the defendant are also reproduced hereunder:- 15. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of some unknown beneficiary. Thus, invocation of the provision of Benami Transaction Act, 1988 are wholly illegal and without jurisdiction as the said Act is not at all applicable to the facts of the case it appears that the department is trying to usurp the property of the assessee under the garb of Prohibition of Benami Transaction Act, 1988 and achieve some ulterior motive. 10. The Adjudicating Authority has taken note of the fact that the transaction in question is prior to the amendment by the Amending Act, 2016 but finding has been recorded adverse to the appellant by treating amending provision to have retrospective application. Though, now the position is clear in the light of the judgement of the Apex Court in the case of "Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Amending Act of 2016. The conclusions have not been specifically drawn in reference to section 2 (9 )(A) but it has been referred in discussion part. 13. In the conclusion drawn by the I.O., a case is not made out to fall under section 2 (9 ) (A) of the Act of 1988 as amended by the Amending Act, 2016. The case in hand is thus squarely covered by the Judgement of the Apex Court in the case of "Union of India & Anr. Versus M/s. Ganpati Dealcom Pvt. Ltd." . The relevant part of the judgement is quoted hereunder for ready reference:- Conclusion 127. In view of the above discussion, we hold as under: 127.1 Section 3(2) of the unamended 1988 Act is declared as unconstitutional for being manifestly arbitrary. Accordingly, Section 3(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
