2025 (12) TMI 1493 - AT - Benami Property

Property purchase funded by another's payments, treated as benami u/s2(9)(A); appeal dismissed, attachments including sale proceeds upheld.

The dominant issue was whether the impugned acquisition constituted a benami transaction under s.2(9)(A) of the 1988 Act. The AT held that documentary ... Benami transaction - definition of Section 2(9)(A) - conversion of the agriculture land to non-agriculture land - payment of consideration for purchase of two parcels of land directly made by the appellant - agriculture land was existing in the name of Schedule Castes and Scheduled Tribes persons - denial of opportunity of cross- examination - provisional attachment of the property - no show-cause notice was given - HELD THAT:- The facts have been taken into consideration coupled with the documentary evidence which include even the Sale Deed indicating the relationship of the benamidar and the beneficial owner for purchase of property with required arrangement sufficient to make out a case of benami transaction. It is coupled with the bank statement to show payment of consideration for purchase of property by the appellant, Smt. Priti Agarwal. Thus, we do not find any force in the argument of the Ld. Counsel for the appellant to allege that the benami transaction is not made out under Section 2(9)(A) of the Act of 1988. We find that the issue aforesaid has been taken into consideration by the Adjudicating Authority elaborately relying on the judgment of the Madhya Pradesh High Court in the case of Harivallabh Mohanlal Joshi [2018 (8) TMI 2101 - MADHYA PRADESH HIGH COURT] The appellant was given many opportunities but she failed to avail it. It is now settled proposition of law that right of cross- examination is not inbuilt, rather, it is to be given when so required. In the instant case, the respondents have relied on the statement of Shri Shiv Shankar apart from other witnesses and even documentary evidence which include bank statement of the appellant, Smt. Priti Agarwal and the Sale Deed have been relied to draw conclusions about benami transaction. Detailed discussion of the facts in that regard has been made. The provision quoted above permits attachment of the property other than for which provisional attachment has been caused. Ld. Counsel for the appellant submitted that no notice under Section 26(5) of the Act of 1988 was given, though the provisional attachment is deemed to be from the date, it was caused by the Initiating Officer. Deeming clause should reverse the proceedings back to the stage of the proceedings taken up by the Initiating Officer. It mandates issuance of show-cause notice. We are unable to agree to the interpretation of the Section 26(5) of the Act of 1988 taken by the appellant. The provision aforesaid allows attachment of the property other than referred in the impugned order. Thus, we do not find that the attachment of a sum is vitiated on the ground that no show-cause notice was given. Thus, even the last argument raised by the appellant cannot be accepted. Appeal and accordingly it fails and is dismissed. It is a fact that there is no allegation against the appellant to get involved in the transfer of property. However, payment of consideration was made by Smt. Priti Agarwal directly to the seller. - The appellant is found to be recipient of the amount after sale of the property said to have been acquired by benamidar out of benami transaction thus the respondents rightly attached the property in the hands of the appellant to the extent of the proceeds received by him out of the sale of the benami property. The monetary trail has been reflected by the respondents and accordingly we find no reason to cause interference in the appeal of Sameer Agarwal also. It accordingly fails and is dismissed. 1. ISSUES PRESENTED AND CONSIDERED (i) Whether the impugned transactions satisfied the ingredients of a benami transaction under Section 2(9)(A) of the Act of 1988, warranting confirmation of the provisional attachment. (ii) Whether the proceedings and confirmation order were vitiated for breach of natural justice due to denial of cross-examination of a key witness whose statement was relied upon. (iii) Whether attachment of an additional amount of Rs. 97.36 lakhs was invalid for want of a separate show-cause notice, having regard to Section 26(5) of the Act of 1988. (iv) Whether attachment against a separate appellant was sustainable where he was not alleged to have paid purchase consideration, but was found to have received part of the sale proceeds linked to the benami property. 2. ISSUE-WISE DETAILED ANALYSIS Issue (i): Benami transaction under Section 2(9)(A) of the Act of 1988 Legal framework: The Tribunal examined the applicability of Section 2(9)(A) as the operative definition invoked to sustain attachment and its confirmation. Interpretation and reasoning: The Tribunal treated direct payment of purchase consideration by one person while title was taken in another's name as satisfying the first limb of Section 2(9)(A). It further held that the 'future benefit' limb was satisfied because, after conversion and plotting, the sale proceeds were received predominantly by the person who funded the purchase, with only a minor portion credited to the name-holder. The Tribunal relied on documentary evidence (bank statement and sale deed) and corroborative witness statements indicating the name-holder did not negotiate the purchase, did not route funds through his account, and allowed his name to be used pursuant to an arrangement. Conclusion: A benami transaction within Section 2(9)(A) was held proved on the record, and the confirmation of provisional attachment on that basis was upheld. Issue (ii): Alleged denial of cross-examination and principles of natural justice Legal framework: The Tribunal applied the proposition (as adopted in its reasoning) that cross-examination is not an inbuilt or automatic component of natural justice and is to be afforded when required on the facts; it also considered whether prejudice was shown and whether adequate opportunities were provided. Interpretation and reasoning: The Tribunal found that the case against the appellant was not founded solely on oral statements but also on documentary materials, including the bank trail and the sale deed. It accepted the finding that multiple opportunities to cross-examine were made available, including an additional opportunity offered telephonically, and that the appellant failed to avail them, indicating an attempt to delay proceedings rather than a genuine deprivation of hearing. In these circumstances, the Tribunal held that denial of cross-examination did not vitiate the adjudication. Conclusion: No violation of natural justice was established; the ground based on cross-examination was rejected. Issue (iii): Validity of attaching Rs. 97.36 lakhs without a separate show-cause notice (Section 26(5)) Legal framework: The Tribunal construed Section 26(5), which empowers the Adjudicating Authority, during proceedings, to provisionally attach property other than that referred by the Initiating Officer if it has reason to believe such property is benami. Interpretation and reasoning: The Tribunal rejected the contention that the deeming clause required the process to be rolled back to the Initiating Officer stage mandating a fresh show-cause notice for the additional attachment. It held that Section 26(5) itself authorises such attachment by the Adjudicating Authority during pending proceedings, and absence of a separate show-cause notice did not vitiate the attachment of Rs. 97.36 lakhs on the facts presented. Conclusion: The attachment of Rs. 97.36 lakhs was held not to be invalid on the pleaded ground; the challenge failed. Issue (iv): Attachment against the appellant who received proceeds though not alleged to have funded the purchase Interpretation and reasoning: The Tribunal accepted that there was no allegation of this appellant having paid purchase consideration or being directly involved in acquisition. However, it found a monetary trail showing that the name-holder transferred specific sums to him, representing part of the proceeds arising from sale of the benami property. Since he was a recipient of proceeds linked to the benami transaction, the Tribunal held the respondents were justified in attaching the property/amount in his hands to the extent of such receipts. Conclusion: Attachment against this appellant was sustained to the extent of proceeds received from the benami property; his appeal was dismissed.