TaxTMI 
TaxTMI 
2018 (12) TMI 969
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..../PBPT/49/CHN/2018, FPA/PBPT/50/CHN/2018, FPA/PBPT/54/CHN/2018, FPA/PBPT/57/CHN/2018FPA/PBPT/61/CHN/2018 And FPA/PBPT/64/CHN/2018 For The Appellants : Sh. Anirudh Bakhru and Sh. Sudhir Chandra, Advocates For The Respondent : Sh. Anish Dhingra, SPP for Initiating Officer JUDGMENT 1. By this Order, I propose to decide the above-mentioned 28 appeals filed by the appellants under Section 46 of the Prohibition of Benami Property Transactions Act,1988 against the Order dated 27.03.2018 passed by the Adjudicating Authority, New Delhi. 2. The facts in all the appeals are common so as the impugned order, except the names of the appellants, quantum of advance salary paid in cash to the appellants and the datesof return of amount backare different. The chart of the same having full details of 28 appeals would be reproduced in the later part of my order. The relevant facts taken from appeal no. 16/2018, are given below:- i) The appellant is employed as a Professor in St. Joseph‟s College of Engineering since 2006 and is drawing salary of Rs. 1,19,592 p.m. The said college is run by St. Joseph Institute of Science and Technology Trust (in short "Trust"), whose Chair....
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.... the show cause notice, the Appellant again reiterated that the amount of Rs. 50,000/-was received by him as salary advance on 17/11/2016 and that he has returned the entire amount to the Management on 23/11/2016 upon the insistence of Income tax Authorities. 7. The Provisional Attachment Orderdated 25/01/2017, reads as under: "The sum of Rs. 50,000/- is due from the Benamidhar, Thiru.V. Rajinikanth on account of Benami transactions (Prohibitions) Amendment Act, 2016. The savings bank account held by the Benamidhar in your branch is SB A/c No. 707050607. You are hereby required u/s 24(3) of the Benami Transactions (Prohibitions) Amendment Act, 2016 to pay to provisionally attach any amount due from you to or held by you or.........." 8. I have heard the learned counsel of both parties in details. The appellant has also filed the written-submissions. 9. It is not disputed by the learned counsel for the respondent that these 28 appeals who had allegedly received the advance salary, have returned back the entire amount to the management within 10 days. The detailed chart is also provided by the learned counsel of the appellant during the course of hearing of the appe....
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.... 15.11.16 1,00,000 22.11.16 1,00,000 262 15. PB 36/2018 J Sivapriya Asso-ciate Prof. 2011 80,441 2,00,000 15.11.16 2,00,000 22.11.16 2,00,000 28,424 16. PB 37/2018 S Mani-gandan Asso-ciate Prof. 2013 59,902 1,00,000 16.11.16 1,00,000 24.11.16 1,00,000 82,599 17. PB 38/2018 D Sankaran Asso-ciate Prof. 1997 50,760 1,00,000 15.11.16 1,00,000 24.11.16 1,00,000 736 18. PB 39/2018 I Cephas Asstt. Prof. 2013 50,760 1,00,000 14.11.16 1,00,000 23.11.16 1,00,000 6,654 19. PB 45/2018 M Methini Asstt. Prof. 2013 50,760 1,00,000 15.11.16 1,00,000 24.11.16 1,00,000 34,482 20. PB 46/2018 D Kousalya Asstt. Prof. 2015 50,760 1,00,000 14.11.16 1,00,000 24.11.16 1,00,000 337 21. PB 47/2018 P Thilaga Asstt. Prof. 2015 50,760 1,00,000 17.11.16 1,00,000 23.11.16 1,00,000 6,197 22. PB 48/2018 G Dhivya Asstt. Prof. 2015 22,000 50,000 17.11.16 50,000 24.11.16 50,000 1,769 23. PB 49/2018 M Nivethitha Devi Asstt. Prof. 2010....
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....benami" property. 15. The adjudicating authority by virtue of its order dated 27.03.2018 u/s 26 (3) of the Act confirmed the aforesaid order. 16. A search action by the Income Tax Department commenced on 17.11.2016. During the course of this search, from the office computer of the accountant, details of disbursement of amounts to various Department Heads for further disbursements were found. 17. The statement of the Chairman was recorded during the course of search wherein he stated that salary advance was given to employees of two colleges as salary advance for their personal purposes. This was given only to interested employees, who gave their consent for the same. The employees in their statements also agreed to having received such money. He also said that he would pay tax on the entire amount mentioned in the list of disbursement, as income of the trusts. The trust accordingly honored the Chairman‟s commitment and paid taxes on income of Rs. 8.18 Crores, availing the scheme of PMGKY. In the present lot or total 49 appeals, no appeal is with regard to Chairman. 18. As far as the above mentioned 28 appellants are concerned, the argument of Mr. Anirudh Bakhru, l....
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....diate or future benefit, direct or indirect, of the person who has provided the consideration, except when the property is held by- (i) a Karta, or a member of a Hindu undivided family, as the case may be, and the property is held for his benefit or benefit of other members in the family and the consideration for such property has been provided or paid out of the known sources of the Hindu undivided family; (ii) a person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capacity and includes a trustee, executor, partner, director of a company, a depository or a participant as an agent of a depository under the Depositories Act, 1996 (22 of 1996) and any other person as may be notified by the Central Government for this purpose; (iii) any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual; (iv) any person in the name of his brother or sister or lineal ascendant or descendant, where the names of brother or sister or lineal ascendant or descendant....
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.... the appellants have never held the movable property or the same was registered in their respective banks. 25. The attachment in the present appeals are not effected under the PMLA, 2002, though the members of Adjudicating Authority, PMLA, 2002 are also now dealing with the cases under the Benami Act, but majority of the cases are being decided by these members under the PML Act, 2002. It is an expert authority as claimed. The provision of Section 2(u) of PMLA is not applicable. 26. It was rightly argued by Shri Anirudh Bakhru, learned counsel for the appellant that once the entire salary advance was returned back to the Trust, the question of Appellant depositing any amount out of it in his bank account did not arise. Therefore, there was no benami property lying in the Bank account of the Appellant which has been attached. 27. There is no denial on behalf of respondent that no such amount was ever deposited in the bank, the IO went ahead and issued a Provisional Attachment order under sub-section (3) of section 24 of the Act for provisionally attaching the aforesaid Indian bank account of the Appellant by completely disregarding the facts recorded in the sworn statement ....
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....ction and which portion of reply is an afterthought. 33. The IO,without application of his mind, has held as under: "This shows that ThiruBabu Manoharan has forced his employees to distribute, deposit and retain his own money in demonetized currency in the guise of loan received, which has to be repaid after some time in new currency as per his convenience." 34. The order passed by the IO under sub-section (4) of section 24 of the Act dated 13-03-2017 is illegal as it relates to a property, which does not exist at all. 35. Even the Adjudicating Authority has not considered the reply filed by the appellant properly. It appears that hearing officers have applied the provision of Section 2(u) of PMLA, 2002 once the property was attached in value thereof. 36. The impugned order is unsustainable as it punishes the appellants for wanting to defeat the purpose of demonetization, which has no direct nexus with the Act and is beyond the purview of the Act. 37. 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 materi....