TaxTMI 
TaxTMI 
2020 (2) TMI 877
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....; of the property has been ordered till the final adjudication. 2. Heard Shri Surfaraj Khan, the learned counsel appearing on behalf of the Appellants and Shri Amit Choudhary and Smt. Naushina Afrin Ali, the learned counsel representing the Respondents No. 1, 2 and 4. 3. The Appellants are husband and wife and they own different extents of properties in different villages acquired by utilizing the funds allegedly from their own sources. Ever since purchase/acquisition of the properties, they are stated as enjoying the same with absolute ownership, exclusive possession and clear and marketable title. While so, the Petitioners were served with Annexure P/1 notice dated 31.07.2019 issued by the 1st Respondent to the effect that, as per the information gathered by the said Respondent, the above properties were to be held as 'benami properties' and hence the said properties were provisionally attached, till final adjudication. 4. On receipt of Annexure P/1, the Appellants submitted Annexure P/5 reply, explaining the facts and figures. It was pointed out that all the properties mentioned in the notice, except those items which were specifically pointed out as belonging to s....
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....ving application insofar as the question whether the property had to confiscated or not, was yet to be decided. After hearing both the sides, the learned Single Judge declined interference, holding that Annexures P/1 and P/2 proceedings were only provisional and it was open for the writ Petitioners to raise all the contentions before the adjudicating authority, where the matter was pending. This is put to challenge in this appeal. 7. Shri Surfaraj Khan, the learned counsel appearing for the Appellants submits that Annexure P/3 title deeds clearly reveal that all the said properties were purchased by the Appellants themselves utilizing their funds much prior to 01.11.2016; i.e., the date on which Amendment Act, 2016 was brought into force. The provision for 'confiscation' of the property is a substantive law, which can have only prospective application and cannot be of any retrospective effect. This is the law declared by the Rajasthan High Court referring to all the relevant provisions of law and the binding precedents. Reliance is also sought to be placed on Mangathai Ammal (supra). The learned counsel submits that substantial changes have been introduced to the old Act,....
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....aving any retrospective effect, the enhanced punishment will be applicable only prospectively; i.e. after 01.11.2016. The circumstance under which a conscious decision was taken to bring out the amendment to the existing statute, instead of repealing the same and bringing a new enactment, is highlighted with reference to the proceedings held on the floor of the Parliament to the effect that the old Act, if repealed and a new Act was introduced, there was a chance to have all the wrong-doers/offenders to go scot-free. Specific reference is also made to Section 65 of the Act (as amended), which refers to transfer of the pending cases, pointing out the fact that the present Act is applicable in respect of old transactions i.e. prior to 01.11.2016 and also in respect of subsequent transactions, as the case may be. 10. The salient features of the statutory provisions, as pointed out by the learned counsel for the Respondents in this regard by way of "Written Synopsis" (supported by affidavit) are as given below: "i) Sub section 1(3) of the PBPT Act, which remains unaltered by the Amendment Act, 2016, specifically make the provisions of sections 3, 5 and 8 of the PBPT Act from 05.09....
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....016 to the House. He stated that ".... if we brought in a new Bill, properties acquired benami between the period of 1988 onwards would have all gone scot free. So, it was considered necessary that the old law be allowed to remain, and the new amendments be inserted into the old law itself." vi) The specific lacuna sought to be remedied was, in the words of the Hon'ble Finance Minister, "... this Act (Benami Act of 1988) had to be operationalized through rules, and the rules were never framed" viii) It is a fact that the various procedures for confiscation of properties held benami were inserted for the first time into the stature through the Amendment Act, 2016, to that extent they would be retrospective in their application being curative in nature. In order to understand as to whether the present amendment is a curative legislation, the observations of Hon'ble Supreme Court in the case of R Rajgopal Reddy vs. Padmini Chandrasekharran reported in (1995) 2 SCC 630 can be seen at para 17, 18: "17. As regards, reason No-3, we are of the considered view that the Act cannot be treated to be declaratory in nature. Declaratory enactment declares and clarifies the real i....
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....ays to have meant' is declaratory, and is in pain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so when the pre-amended provision was clear and unambiguous. And amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect are therefore if the principal Act was existing law when the constitution came into force the amending Act also will be part of the law. In Mithilesh Kumari V. Prem Bihari Khare, Section 4 of the Benami Transactions (Prohibition) Act, 1988 was, it is submitted, wrongly held to be an Act declaratory in nature for it was not passed to clear any doubt existing as to the common law or the meaning of effect of any statute. The conclusion however that Section 4 applied also to past benami transactions may be supportable on the language used in the Section. 18. No exception can be taken to the aforesaid observations of learned author which in our view can certainly be pressed in service for judging whether the impugned section is declaratory in nature or not. Acc....
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....n offence has no vested right to be tried by a particular court or a particular procedure..... There is no principle underlying Art. 20 of the Constitution which makes a right to any course of procedure a vested right." xi) As regards the 'enhanced punishment' introduced by the Amendment Act, 2016, referred to in the impugned judgment, the same, contained in the provisions of sections 53, 54 and 55 of the Amended Act have specifically been made prospective in the statute by the provisions of section 3(3) and could not be a valid basis for declaring the other procedural provisions of the Amendment Act, 2016 to be capable of prospective application alone. xii) Any law which makes engaging in certain activity a punishable offence, cannot be given retrospective effect because of the constitutional bar on retrospective criminal law. Therefore, Benami Transaction (Prohibition) Act, 1988 (the original act, 1988) was amended and not repealed. The consequence of this is that all benami transactions which have taken place between 1988 and the commencement of the Benami Transaction (Prohibition) Amendment Act, 2016 (i.e. Amendment Act, 2016) can be proceeded against. Since the o....
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....enge now raised is premature in all respects. 12. It is seen from Annexure P/1 dated 31.07.2019 that, as per the information gathered by the 2nd Respondent, one Laxmi Narayan Agrawal @ Punnu Seth of residing in the District Mahasamund had allegedly purchased benami properties of more than 200 acres of land in different villages/Tehsil in the name of the Appellants herein, as detailed therein. After conducting the verification and on finding the necessity to take further steps, approval was obtained under Section 23 of the Act of 1988 from the competent authority on 14.09.2018 to conduct further investigation. Documents were called for from the Land Revenue Authorities and Bank statements were obtained from the Banks concerned, besides recording the statements of the Appellants herein. 13. The outcome of the scrutiny done with reference to above materials has been given in Annexure P/1, to the effect that the Appellants were not having sufficient income to purchase the above properties. It was even beyond the knowledge of the Appellants that some of such properties were registered in their names. Show cause notice was issued to the Appellants on 02.05.2019, which was served on 0....