2020 (2) TMI 877 - HC - Benami Property

Appeal dismissed challenging provisional attachment under Benami Property Act. Premature filing clarified.

Tulsiram, S/o Shri Ghaneshram, Manki Bai, W/o Shri Tulsiram Versus Assistant Commissioner of Income Tax (Benami Prohibition), Initiating Officer, PBPT Act, Union of India, Adjudicating Officer under the Prohibition of Benami Property Transactions Act,

Tulsiram, S/o Shri Ghaneshram, Manki Bai, W/o Shri Tulsiram Versus Assistant Commissioner of Income Tax (Benami Prohibition), Initiating Officer, PBPT ... Issues Involved:1. Prematurity of the writ petition challenging provisional attachment under the Prohibition of Benami Property Transactions Act, 1988.2. Retrospective application of the Amendment Act, 2016.3. Substantive vs. procedural nature of the amendments.4. Validity of provisional attachment orders (Annexures P/1 and P/2).Issue-wise Detailed Analysis:1. Prematurity of the Writ Petition:The writ petitioners, who are appellants in this case, challenged the provisional attachment of their properties under the Prohibition of Benami Property Transactions Act, 1988. The learned Single Judge dismissed the petition as premature since the matter was still pending before the competent authority and only a provisional attachment had been ordered. The appellants argued that the provisional attachment was unjustified, but the court held that the challenge was premature and that the appellants could raise their contentions before the adjudicating authority.2. Retrospective Application of the Amendment Act, 2016:The appellants contended that the properties were purchased before the Amendment Act, 2016, which introduced the power to confiscate benami properties, came into force on 01.11.2016. They argued that the amendments should not have retrospective effect. The court examined the legislative intent and the statutory provisions, noting that the amendments were substantive regarding punishment but procedural concerning the steps to be followed. The court referenced the Finance Minister's clarification in the Lok Sabha and various judicial precedents to support the view that the procedural aspects of the amendments could apply retrospectively.3. Substantive vs. Procedural Nature of the Amendments:The appellants argued that the changes brought by the Amendment Act, 2016, were substantive and thus could not be applied retrospectively. They relied on judgments from the Rajasthan High Court and the Supreme Court case of Mangathai Ammal. The respondents countered that the amendments were procedural and aimed at providing an effective mechanism for dealing with benami transactions. The court agreed with the respondents, stating that the procedural mechanisms introduced by the amendments were curative in nature and could be applied retrospectively.4. Validity of Provisional Attachment Orders (Annexures P/1 and P/2):The appellants challenged the provisional attachment orders, arguing that they were based on insufficient evidence and that the properties were purchased with their own funds. The court noted that the provisional attachment was an interim measure intended to prevent the creation of third-party interests in the properties until the final adjudication. The court found no prejudice to the appellants from the provisional attachment, especially since the appellants had undertaken not to alienate the properties until the adjudication was finalized. The court upheld the provisional attachment orders, emphasizing that they were subject to the outcome of the adjudication.Conclusion:The court dismissed the appeal, affirming the learned Single Judge's decision that the writ petition was premature. The court ruled that the appellants could raise all their contentions before the adjudicating authority. The court clarified that it had not expressed any opinion on the merits of the case and that the provisional attachment orders were interim measures subject to the final adjudication.