TaxTMI 
TaxTMI 
2018 (12) TMI 905
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....t of my order. 3. The relevant facts are taken from appeal no. 26/2018 filed byG.Bahadur. The same are referred as under:- (i) The Appellant is employed as a Security in St. Joseph's College of Engineering since 1995 and is drawing salary of Rs. 28,529/- p.m. The said college is run by St. Joseph Institute of Science & Technology Trust (in short "Trust"), whose Chairman is Shri B. Babu Manoharan. He has a bank account No. 482948206 with Indian Bank, Chennai in which there was a credit balance of Rs. 970/- on the date of attachment. (ii) The Appellant on 14/11/2016 had received an amount of Rs. 50,000/- as salary advance from the Trust. The appellant deposited the entire amount of Rs. 50,000/- in his bank account, which was subsequently withdrawn by him and consumed for his personal purposes. (iii) On 17/11/2016, a search action u/s 132 of the Income tax Act, 1961 was conducted in the case of the Trust. 4. During the course of search, sworn statement of the Appellant was recorded on 28/11/2016 by the Income Tax Authorities. The appellant in his sworn statement deposed the above facts. 5. The Appellant received a show cause notice dated 14/12/2016 ....
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....pellant, passed the Attachment order dated 13.03.2017 under section 24(4)(a)(i) of the Act continuing the provisional attachment of the property already made under sub-section (3) of Section 24 of the Act which is packed with factual in accuracies. 10. In the I.O's order, it was stated, as under:- a. Para 6 of I.O's order reproduces a part of the Appellant's statement as under: "Yes after demonetisation I had received Rs. 50000 from Shri Sethu (attendance incharge) on 14/11/2016 which I had deposited in my Indian bank account (jeppiar branch). I had received 50 notes of Rs. 1000/-denominations which I deposited in jeppiar branch of Indian bank on 14/11/2016 " b. But in Para 4 of the I.O's order, he writes as under: "In response to the notice, the Benamidar had filed a reply, stating that the sum received by cash from ThiruBabu Manoharan (Beneficial owner) are his salary in advance. His reply is not acceptable, because in the sworn statement recorded before the Assistant/Deputy Director of Income tax (Inv.), during the course of the search, it has been stated by him that they have received the said amount as a loan." c. It was stated b....
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....urn D.1 PB 26/2018 Ganesh Bahadur 14.11.2016 50,000 - - 29.03.2017 50,000 Bank Transfer D.2 PB 32/2018 K Vijayakumar 14.11.2016 2,00,000 - - 30.03.2017 2,00,000 Cash D.3 PB 41/2018 S Praveen 14.11.2016 50,000 - - 29.03.2017 50,000 Bank Transfer D.4 PB 42/2018 S. Thalapathy 14.11.2016 50,000 - - 30.03.2017 50,000 Cash D.5 PB 43/2018 P Shankar 14.11.2016 50,000 - - 31.03.2017 50,000 Bank Transfer D.6 PB 44/2018 R Illayaraja 16.11.2016 50,000 - - 31.03.2017 50,000 Bank Transfer D.7 PB 52/2018 P Gunasekaran 14.11.2016 2,00,000 - - 29.03.2017 2,00,000 Bank Transfer D.8 PB 56/2018 Arun Vasanthageethan 14.11.2016 2,50,000 19.11.2016 1,65,000 28.03.2017 85,000 Bank Transfer D.9 PB 62/2018 M S Sudheesh 14.11.2016 2,00,000 19.11.2016 1,65,000 28.03.2017 14. On the same lines, affidavits have been filed by the appellants stating that - i. Shri Ganesh Bahadur has stated in his affidavit that he is employed as a Security in St. Jo....
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....nology Trust. He had received an amount of Rs. 50,000/- as salary advance from the Trust on 16.11.2016 and returned back the amount of Rs. 50,000/- to the Trust on 31.03.2017 through bank transfer. vii. In his affidavit, Shri P. Gunasekaran has mentioned that he is employed as Office Assistant in St. Joseph's Institute of Technology since 2004 and drawing salary of Rs. 20,926/- per month. The college is run by St. Joseph's Educational Trust. The appellant received an amount of Rs. 2,00,000/- as salary advance from the Trust on 14.11.2016 and he returned back the said amount of Rs. 2,00,000/- to the Trust on 29.03.2017 through bank transfer. viii. Shri K. Arun Vasanthageethan has stated in his affidavit that he is employed as Professor in St. Joseph's Institute of Technology since 2012 and drawing salary of Rs. 82,274/- per month. The college is run by St. Joseph's Educational Trust. The appellant received an amount of Rs. 2,50,000/- as salary advance from the Trust on 14.11.2016, out of which on the insistence of Income Deptt. authorities, he returned back an amount of Rs. 1,65,000/- to the Trust on 19.11.2016. The remaining salary advance of Rs. 85,000/-was retur....
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....y not sustainable for the following reasons: i. The Authority has not considered any of the Appellant's written submission filed on 15-05-2017 and 23-06-2017 and also not considered the arguments made by the Appellant's Senior Legal Counsel during course of the final hearing on 13.09.2017. ii. Furthermore, the order of the Adjudicating Authority has brought into consideration entirely non-existent and outright imaginary facts, which were not even alleged anywhere by the Initiating Officer (IO). iii. Order of the Adjudicating Authority is completely devoid of the facts as: a. there is no mention of facts contained in the show cause notice under sub-section (1) of section 24 of the Act issued to the appellant; b. there is no mention of the facts contain in the order passed under section 24(4)(a)(i) by the IO. c. even in the facts contained in the Rejoinder dated 10.07.2017 filed by the IO before the Adjudicating Authority have not been mentioned. d. A Table containing the facts of the individual cases was submitted before the Authority, and each case should have been considered separately, but there is no mention of it an....
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....ank account which was subsequently withdrawn and used by him much before the date of attachment i.e. on 25/01/2017. Ground 7 : Order passed by the Authority is not in conformity with the Benami Law and hence liable to be set aside. i. The provisions of the Benami Act clearly show that every cash transaction is not a benami transaction. There has to be a beneficial interest which is sin quo non for the existence of a transaction prohibited under the Act. ii. The order of the Adjudicating Authority is completely void, illegal and unjust as all the references made and proceedings conducted by them during the course of the adjudication were contrary to the mandatory provisions stipulated under the Prohibition of Benami Property Transactions Act, 1988. iii. The provisions of the Act must be interpreted in a manner so that it is in conformity with not only its legislative intent but also with settled constitutional principles. The validity of the provisions might have received constitutional protection, but when stringent laws become applicable as a result where of some persons are to be deprived of his/her right in a property, scrupulous compliance of the s....
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....he removal of doubts, it is hereby declared that benami transaction shall not include any transaction involving the allowing of possession of any property to be taken or retained in part performance of a contract referred to in section 53-A of the Transfer of Property Act, 1882 (4 of 1882), if, under any law for the time being in force,- (i) consideration for such property has been provided by the person to whom possession of property has been allowed but the person who has granted possession thereof continues to hold ownership of such property; (ii) stamp duty on such transaction or arrangement has been paid; and (iii) the contract has been registered. 2(10) "benamidar" means a person or a fictitious person, as the case may be, in whose name the benami property is transferred or held and includes a person who lends his name; 21. Every cash transaction cannot be termed as a "benami " transaction. As per section 2(9)A of the Act, the following twin conditions need to be satisfied- (1) the property being held by a person who has not provided the consideration, (2) the property is held by that person for the immediate or future benefit, direct or....
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.... vesting of confiscated property with Central Government; (ii) have any provision for an appellate mechanism against an action taken by the authorities under the Act, while barring the jurisdiction of a civil court; (iii) confer the powers of the civil court upon the authorities for its implementation; and (iv) provide for adequate enabling rule making powers." Thus, the Act should be interpreted in a manner so as to punish only transactions that have mere lending of name without any intention to benefit the person in whose name it is made. 24. Using a juxtaposition in the definition as per 2 (9) A, "where the money is transferred to, or is held by, a lecturer, and the consideration for such money has been provided, or paid by, another person"; In the present case, all the appellants have never held the movable property or the same was registered in their respective banks. 25. The nine appellants are merely employees of the Trust (who is their employer). The statement of Chairman has already been recorded. From the entire record, it has not been established that the appellants had any point of time hatched any conspiracy with the employer in order to conceal any cash amoun....
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.... seeing also cannot be equated to believing. "Reason to believe" is a higher level of state of mind. Likewise "knowledge" will be slightly on a higher plane than "reason to believe". A person can be supposed to know where there is a direct appeal to his senses and a person is presumed to have a reason to believe if he has sufficient cause to believe the same.' (iii) Actually involved: If there is no direct/indirect involvement of any person or property with the proceeds of the crime nor there is any aspect of knowledge in any person with respect to involvement or assistance nor the said person is party to the said transaction., cannot be penalized for no fault of his. Therefore, it cannot be the Scheme of the Act whereby bona fide person without having any direct/ indirect involvement in the crime. 27. The impugned order assumes that the object of the disbursement was to bring undisclosed amount into circulation by depositing into 3rd person accounts, who did not own the money legitimately. There is no material on record about any 3rd persons accounts. Furthermore, there is no material on record to show that the lecturers owned the money illegitimately....
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....e of assault. In such a case the additional count does nothing except add to the complexity of the case and the possibility of confusion of the jury. This has in fact occurred.' (b) In R.M.D. Chamarbaugwalla v. Union of India AIR 1957 SC 628, a Constitution Bench of the Apex Court held: '6. If the question whether the Act applies also to prize competitions in which success depends to a substantial degree on skill is to be answered solely on a literal construction of Section 2 (d), it will be difficult to resist the contention of the petitioners that it does. The definition of "prize competition" in Section 2(d) is wide and unqualified in its terms. There is nothing in the wording of it, which limits it to competitions in which success does not depend to any substantial extent on skill but on chance. It is argued by Mr Palkhivala that the language of the enactment being clear and unambiguous, it is not open to us to read into it a limitation which is not there, by reference to other and extraneous considerations. Now, when a question arises as to the interpretation to be put on an enactment, what the court has to do is to ascertain "the intent of them that make it"....
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....ey therefor from the residents of Bombay State. In order to prevent evasion of the Act and for effectually carrying out its object, the legislature of Bombay passed Act 30 of 1952 extending the provisions of the Act of 1948 to competitions conducted outside the State of Bombay but operating inside it, the tax however being limited to the amounts remitted or due on the entries sent from the State of Bombay. The validity of this enactment was impugned by a number of promoters of prize competitions in proceedings by way of writ in the High Court of Bombay, and dealing with the contentions raised by them, Chagla, C.J. and Dixit, J. who heard the appeals arising from those proceedings, held that the competitions in question were gambling in character, and that the licensing provisions were accordingly valid, but that the taxes imposed by Sections 12 and 12-A of the Act were really taxes on the carrying on of the business of running prize competitions, and were hit by Article 301 of the Constitution, and were therefore bad. It is against this decision that Civil Appeal No. 134 of 1956, already referred to, was directed." 34. The position created by this judgment was that though the St....
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..... The use of the word "control" which is to be found not only in the resolution but also in the short title and the preamble to the Act appears to us to clearly indicate that it was only competitions of the character dealt with in the Bombay judgment, that were within the contemplation of the legislature." 35. In jurisprudence, the thumb rule is that the basic law on the subject to be applied for violation of the statute. No doubt, in the interest of the public and welfare of the society, the state is always welcome to bring the amendment in the existing law. New legislature can be brought which may have stringent provisions to cure the system which can be applied against the violators of the law. However, at the same time, when the stringent provisions are to be applied, it is the duty of the Authority to apply the said provisions very carefully. The investigation has to be carried out as per settled law, the mechanical order under those circumstances cannot be passed. Thus, if the respondent wishes to invoke the amended provision of Benami Act, the respondent has to adhere the provisions strictly as defined and not otherwise against the innocent parties. The respondent has ....