AMENDMENTS TO THE PROHIBITION OF BENAMI PROPERTY TRANSACTION ACT, 1988

Introduction

Initially Benami Transactions Prohibition Act, 1988 was passed.  The same has been changed to ‘The Prohibition of Benami Property Transaction Act, 1988’ by section 3 of the 2016 amendment.  It is an Act to prohibit benami transactions and the right to recover property held benami for matters connected therewith or incidental thereto.  The act came into force on 5 September 1988.

Amendments by Finance Bill, 2021

The present Finance Bill, 2021 (‘Bill’ for short) brings amendments to the Prohibition of Benami Property  Transaction Act, 1988 (‘Act’ for short) through Part VI of the Bill.  These amendments will come into effect from 01.07.2021.

Adjudicating Authority

Section 2(1) of the Act defines the expression ‘Adjudicating Authority’ as the Adjudicating Authority appointed under section 7. 

Section 143 of the Bill substitutes the words ‘referred to in’ for the words ‘appointed under’.

Section 7 of the Act provides that the Central Government shall, by notification, appoint one or more Adjudicating Authorities to exercise jurisdiction, powers and authority conferred by or under this Act.

Section 144 of the Bill substitutes a new section for the existing section 7.  The newly substituted section 7 provides that The competent authority authorised under subsection (1) of section 5 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (13 of 1976.) shall be the Adjudicating Authority to exercise jurisdiction, powers and authority conferred by or under this Act.to exercise jurisdiction, powers and authority conferred by or under this Act.

Omission of sections 8 to 17

Section 8 to 17 deal with the following matters-

• Section 8 – Composition of Authority;
• Section 9 – Qualification for appointment of Chairperson and Members;
• Section 10 – Constitution of Benches of Adjudicating Authority;
• Section 11 – Power of Authority to regulate its own procedure;
• Section 12 – Term of office of Chair person and Members of the Authority;
• Section 13 – Terms and conditions of Chair person and Members of the Adjudicating Authority;
• Section 14 – Removal of Chairperson and Members of Adjudicating Authority;
• Section 15 – Member to act as Chairperson in certain circumstances;
• Section 16 – Vacancies etc., not to invalidate proceedings of Adjudicating Authority;
• Section 17 – Officers and employees of Adjudicating Authority.

Since the competent authority authorized under subsection (1) of section 5 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 is made as  the Adjudicating Authority to exercise jurisdiction, powers and authority conferred by or under this Act, the erstwhile provisions relating to the appointment to all aspects of the Adjudicating Authority are not necessary.

Section 145 of the Bill omits Section 8 to 17 of the Act.

Time limit for adjudication

Section 26 (7) of the Act provides the time limit for adjudication by Adjudicating Authority.  Section 26(7) provides that the order shall be passed within one year from the end of the month in which the reference was received.

The explanation to this section provides that in computing the period of limitation, the period during which the proceeding is stayed by an order or injunction of any court shall be excluded.

Section 146 of the Bill inserts a second proviso to the Explanation to section 26(7).  The newly inserted second proviso provides that where the time limit for passing order under this sub-section expires during the period beginning from the 01.07.2021 and ending on the 29.09.2021, the time limit for passing such order shall be extended to the 30.09.2021.

Power to make rules

Section 68 of the Act gives powers to the Central Government to make rules for carrying out the provisions of this Act.  Section 68(2)(b) and (c) provides that such rules may provide for all or any of the following matters, namely-

(b) the manner of appointing the Chairperson and the Member of the Adjudicating Authorities under sub-section (2) of section 9;

(c)  the salaries and allowances payable to the Chairperson and the Members of the Adjudicating Authority under sub-section (1) of section 13.

Section 147 of the Bill omits the above said section 68(2)(b) and (c).