2018 (10) TMI 2044 - AT - Benami Property

Tribunal sets aside provisional attachment orders finding appellants were money carriers not involved in benami transactions

P. Ezhilpandian, S. Arivazhagan Versus Sh. K. Visakh Dy. Commissioner of Income Tax, Chennai

The Appellate Tribunal for SAFEMA, FEMA, PMLA, NDPS, PBPT Act set aside provisional attachment orders under the Prohibition of Benami Property ... Benami transactions under the Prohibition of Benami Property Transactions Act - Provisional Attachment order - HELD THAT:- It is not disputed by respondent that the two appellants have not received any salary being advance amount. As a matter of fact, it was admitted by them that the money was received by them for further disbursal. There is no denial that the appellants were mere carriers. Even in the reply to the appeals, it was admitted that they were mere carriers and were not involved in benami property. Investigating officer must form a reason to believe based on application of mind and appreciation of the material on record (ACIT v. Dhariya Construction Co. [2010 (2) TMI 612 - SC ORDER] & CIT v. Kelvinator India Ltd [2010 (1) TMI 11 - SUPREME COURT] These statements would show that the money in question was no longer with the appellants and could not have been attached at the hand of appellants who were merely carriers of the amount, the said fact has not been denied either in the reply or during the course of hearing. Notice would show that it is mechanical in nature. In fact, all notices are identical except for the amount mentioned. It shows a lack of application of mind, thus making the jurisdiction assumed under section 24 is invalid. The ordinary citizens who are not involved under Benami Act cannot be harassed in this manner. The Authority must be aware that end of law, criminal liability is involved, thus, the authority must be very careful being sensitive matters. Existence of the “benami” transaction has to be proved by the authorities i.e. the person who alleges the transaction (Sitaram Agarwal v. Subrata Chandra [2008 (5) TMI 718 - SUPREME COURT]). The authorities have failed to discharge the burden of proof. The authority has purely gone on the premise that cash is transferred from one person to another, with an object to defeat, demonetization. This is insufficient to establish a “benami” transaction. The impugned order in two appeals are set aside. The attached properties are released forthwith. The appeal and pending application are disposed of. 1. ISSUES PRESENTED and CONSIDEREDThe core legal questions considered in this judgment are:Whether the transactions involving the appellants and the amounts disbursed to them constitute 'benami' transactions under the Prohibition of Benami Property Transactions Act, 1988.Whether the appellants, as carriers of money, can be deemed to hold 'benami' property.Whether the provisional attachment orders issued by the Initiating Officer were valid and based on a proper application of mind.Whether the Adjudicating Authority's confirmation of the attachment orders was justified.2. ISSUE-WISE DETAILED ANALYSISIssue 1: Nature of Transactions as 'Benami'Relevant legal framework and precedents: The definition of 'benami transaction' under Section 2(9) of the Benami Act requires that the property is held by a person who has not provided the consideration and is held for the benefit of the person who provided the consideration.Court's interpretation and reasoning: The court noted that mere cash transactions do not automatically qualify as 'benami' transactions. The appellants were merely carriers of money, and there was no evidence that they held any property for the benefit of another.Key evidence and findings: The appellants received amounts for specific purposes (e.g., organizing sports events) and not for personal benefit. The amounts were disbursed as directed by the Trust and not retained by the appellants.Application of law to facts: The court found that the transactions did not meet the criteria for 'benami' transactions as per the legal definition.Treatment of competing arguments: The respondent's argument that the transactions were 'benami' was not supported by evidence of personal benefit or retention of property by the appellants.Conclusions: The transactions were not 'benami,' and the appellants were not holding any 'benami' property.Issue 2: Validity of Provisional Attachment OrdersRelevant legal framework and precedents: The attachment orders under Section 24 of the Benami Act require a reason to believe that the property is 'benami.'Court's interpretation and reasoning: The court found that the orders were mechanical and lacked application of mind, as they were identical except for the amounts mentioned.Key evidence and findings: The provisional attachment orders were issued without considering the appellants' role as mere carriers and the absence of any retained property.Application of law to facts: The court held that the orders were invalid due to the lack of proper reasoning and evidence.Treatment of competing arguments: The respondent's reliance on the mere transfer of cash was insufficient to justify the attachment orders.Conclusions: The provisional attachment orders were set aside as invalid.Issue 3: Justification of Adjudicating Authority's OrderRelevant legal framework and precedents: The Adjudicating Authority's role is to confirm or reject the Initiating Officer's orders based on evidence and legal standards.Court's interpretation and reasoning: The court found that the Adjudicating Authority failed to properly assess the evidence and legal requirements for a 'benami' transaction.Key evidence and findings: The Authority's confirmation of the attachment orders was based on insufficient grounds and a misunderstanding of the appellants' roles.Application of law to facts: The court concluded that the Authority's order was unjustified and based on a flawed premise.Treatment of competing arguments: The respondent's argument for confirmation was not supported by adequate evidence or legal reasoning.Conclusions: The Adjudicating Authority's order was set aside.3. SIGNIFICANT HOLDINGSPreserve verbatim quotes of crucial legal reasoning: 'The existence of the 'benami' transaction has to be proved by the authorities i.e. the person who alleges the transaction... The authorities have failed to discharge the burden of proof.'Core principles established: The burden of proving a 'benami' transaction lies with the authorities, and mere cash transactions do not suffice as evidence of such transactions.Final determinations on each issue: The transactions were not 'benami,' the provisional attachment orders were invalid, and the Adjudicating Authority's confirmation of these orders was unjustified. The appeals were allowed, and the attached properties were ordered to be released.