TaxTMI 
TaxTMI 
2022 (5) TMI 262
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....writ petitions being identical, those were heard together and are being disposed of by this common judgment and order. 3. W.P.No.11680 of 2021 was argued as the lead case and therefore facts narrated in the said writ petition would be referred to for the sake of convenience. 4. Challenge made in this writ petition is to the legality and validity of the order dated 30.03.2021 passed by the first respondent. 5. Be it stated that order dated 30.03.2021 has been passed by the first respondent under Section 24 (4) (a) (i) of the Prohibition of Benami Property Transactions Act, 1988. 6. By the aforesaid impugned order, first respondent has come to the conclusion that the transaction in question was arranged and executed in a planned manner by M/s.Nexus Feeds Limited, the petitioner, which has been treated as the beneficial owner so that its funds out of unknown sources get parked in the name of the benamidar in the form of shares. Thus it has been held that the consideration has flown through beneficial owner for its immediate or future benefit, direct or indirect; thereby conclusively falling under Section 2 (9) (A) of the Prohibition of Benami Property Transactions Act, 1988. Conse....
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....ompany. Respondent No.3 made the above payments through proper banking channel by way of cheques from his bank account held in Union Bank of India. 13. Thus, total shares of 4,50,000 were allotted to the third respondent as on 14.12.2011 which is reflected in the returns filed for the year 2011-2012. 14. There was a search and seizure operation carried out in the premises of the petitioner company by officials of the Income Tax department on 15.03.2017. Though this led to high income tax demand by way of additions in fresh assessment order, most of the additions were set aside in appeal. 15. However, following the above, first respondent issued a show cause notice dated 30.12.2019 to the third respondent as well as to the petitioner under Section 24 (1) of the Prohibition of Benami Property Transactions Act, 1988. Third respondent was termed as the prima facie benamidar under Section 2 (10) of the aforesaid Act, whereas petitioner company and its Managing Director Goluguri Ramakrishna Reddy were termed as prima facie beneficial owners under Section 2 (12) of the aforesaid Act. Reference was made to the search and seizure operations carried on by the Income Tax department on 15.0....
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....rovisional attachment order were passed on mere assumptions and presumptions, allegations being baseless, notice being issued with preconceived mind, etc., however, it was specifically urged that the impugned action of the first respondent was on the basis of Benami Transactions (Prohibition) Amendment Act, 2016 by applying the same retrospectively. It was contended that Benami Transactions (Prohibition) Amendment Act, 2016 ('Amendment Act, 2016', hereinafter) became operative from 01.11.2016. Since the impugned transactions took place in the year 2011, the Amendment Act, 2016 cannot be applied retrospectively to the said transaction. The very foundation for issuance of the show cause notice and the provisional attachment order being flawed, the same is required to be recalled / set aside. 18. However, first respondent passed the impugned order dated 30.03.2021. On the question of retrospectivity, first respondent took the stand that by the Amendment Act, 2016 machinery provisions have been introduced only to plug the loopholes in the 1988 Act. Section 24 of the Amendment Act, 2016 is a machinery provision which is intended to supplement the substantive provisions of the 1988 Act.....
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....- Rs.9,40,167/- 4 Loans and Advances Rs.1,85,24,614/- Rs.4,52,62,034/- 5 Sundry debtors Rs.3,69,56,390/- Rs.3,75,99,018/- 6 Other Current Assets Rs.72,58,143/- Rs.72,58,143/- as per the Balance Sheet of the Company as on 31/03/2012, to the tune of Rs.45,00,000/-equivalent to the share capital routed through benami transaction and introduced in the books of M/s. Nexus Feeds Ltd. during the FY 2011-12. 3. Lease rent receivable from M/s. Nakshatra Feeds India Private Limited, Vijayawada @ Rs.15 lakhs per month towards leasing of Buildings and Plant & Machinery (fixed Assets) as per the registered lease agreement dated 21/08/2019 with Nexus Feeds Limited. 19. Aggrieved, the present writ petition has been filed seeking the relief as indicated above. 20. As already mentioned, though the impugned order has been assailed on various grounds, the hearing was confined to the alleged retrospective application of the Amendment Act, 2016 to the transactions in question which took place in the year 2011. According to the petitioner, the Amendment Act, 2016 cannot be applied retrospectively; and therefore the very foundation for issuance of show cause notice and provisional attach....
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....tioner-company; his share certificates and PAN card details were with the petitioner-company. According to respondent No.3, he is a mechanic having annual income of Rs.20,000/- only. 23.6 Therefore, there was reason to believe that the transaction was a benami transaction under Section 2(9)(A) read with 2 (9) (C) of the 1988 Act. 23.7 In this connection, show-cause notice under Section 24(1) of the 1988 Act was issued on 30.12.2019 treating respondent No.3 as prima facie benamidar of the petitioner-company which is the beneficial owner in respect of the subject shares. The shares in question along with the proceeds thereof introduced in the books of the petitioner-company during the Financial Year 2011-12 were treated as benami property. 23.8 In response to the show-cause notice, respondent No.3 submitted reply wherein the statements made on 19.11.2019 were retracted and the shares were claimed to have been purchased out of his own funds. Similar replies were received in 21 other cases. On enquiry, four such persons treated as benamidars denied filing reply. Therefore, reply of respondent No.3 was considered to be not acceptable whereafter bank statements of respondent No.3 were....
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....ional in nature, and therefore, the Writ Petition filed is premature. 27. In the circumstances, answering respondents seek vacation of the interim order dated 29.04.2021 passed in Interlocutory Application No.1 of 2021 in Writ Petition No.11680 of 2021 and resultant dismissal of the Writ Petition. 28. Petitioner has filed reply-affidavit to the counter-affidavit filed by respondent Nos.1, 2 and 5 denying the contentions advanced by the answering respondents and reiterating the averments made in the Writ Petition. It is stated that statement of respondent No.3 was extracted under duress which was later on retracted by respondent No.3. A retracted statement cannot be the basis for bringing such a serious charge of benami transaction. 29. It is asserted that Section 2 (9) (A) or Section 2 (9) (C) of the 1988 Act were inserted by way of the Amendment Act of 2016. In the Amendment Act of 2016 itself, it was clearly mentioned that it would be operative w.e.f. 01.11.2016. Therefore, on the date of the transaction or commission of the alleged offence, Section 2 (9) (A) or Section 2 (9) (C) were not in existence. As such, passing of an attachment order on the basis of non-existent provis....
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....show-cause notice, it is stated that the same is only provisional in nature; reference has been made to the adjudicating authority under Section 24(5) of the 1988 Act who shall pass appropriate order under Section 26(3) of the said Act either confirming or revoking the order of provisional attachment. 32. Mr.C.V.Narasimham, learned counsel for the petitioner, submits that the impugned order is ex facie illegal, being without jurisdiction. It is based on the Amendment Act of 2016 whereby the transaction entered into by the petitioner with respondent No.3 in the year 2011 has been alleged to be a benami transaction. He submits that there is no dispute that the transaction which is being targeted by respondent No.1 is a transaction which took place in the year 2011 pertaining to purchase of 4,50,000 shares of the petitioner by respondent No.3. According to him, the same could not have been declared as a benami transaction by applying the Amendment Act, 2016. 32.1 Learned counsel for the petitioner has referred to notification dated 25.10.2016 issued by the Central Board of Direct Taxes (C.B.D.T.) and submits that as per the said notification which was issued in exercise of the power....
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....16 and contends that the offence of benami transaction as defined under the 1988 Act was enlarged to such an extent by the Amendment Act of 2016 that various transactions hitherto not falling with the definition of 'benami transaction' under Section 2(a) of the 1988 Act would now fall within the definition of 'benami transaction' and would be construed to be a penal offence. 32.6 Referring to the stand taken by respondent No.1 in the show-cause notice as well as in the impugned order which has been further supported by the respondents in the two affidavits, he submits that it is the specific case of respondent No.1 that the transaction entered into between the petitioner and respondent No.3 in the year 2011 would be covered by the definition of 'benami transaction' under Section 2(9)(A) read with Section 2 (9) (C) of the new definition substituted by the Amendment Act of 2016. Sections 2(9)(A) and 2(9)(C) were not in existence when the transaction in question took place. The aforesaid definitions came into the statute book w.e.f. 01.11.2016. Therefore, a transaction which was not an offence in the year 2011 cannot now be alleged to be an offence by invoking the provisions of Secti....
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....me Court. 33.2 He has referred to provisions of Section 1(3) of the 1988 Act which says that provisions of Sections 3, 5, and 8 shall come into force at once, and the remaining provisions of the 1988 Act shall be deemed to have come into force on and from 19.05.1988. 33.3 Learned Additional Solicitor General has referred to Section 3 of the 1988 Act as substituted by the Amendment Act of 2016. While Sub-Section (1) of Section 3 of the 1988 Act, which says that no person shall enter into any benami transaction, has been retained, Sub-Section (2) has been omitted, whereafter Sub-Section (3) has been renumbered as Sub-Section (2). As per the renumbered Sub-Section (2), the punishment for entering into benami transaction is imprisonment for a term which may extend to three years or with fine or with both; this provision albeit renumbered has been retained. However, a new Sub-Section (3) has been introduced as per which whoever enters into any benami transaction on and after commencement of the Amendment Act of 2016 i.e., after 01.11.2016 shall notwithstanding anything contained in Sub-Section (2), be punishable in accordance with the provisions contained in Chapter VII. As per Sub-Se....
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....the provisions of the 1988 Act. Initially, it was called as Benami Transactions (Prohibition) Act, 1988. It was enacted by the Parliament to prohibit benami transactions and the right to recover property held benami and for matters connected therewith or incidental thereto. 36. Law Commission was requested by the Central Government to examine the subject on benami transactions in all its ramifications. Law Commission submitted its 57th report. To implement the recommendations of the 57th report of the Law Commission on benami transactions, President promulgated the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988. While the Ordinance provided that no suit, claim or action to enforce any right in respect of any property held benami would lie and no defence based on any right in respect of any property held benami would be allowed in any suit, claim or action, it however, made two exceptions regarding property held by a coparcener in a Hindu undivided family for the benefit of the coparceners and property held by a trustee or other person standing in a fiduciary capacity for the benefit of the other person. Provisions of the Ordinance received a mix....
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....gislation. As a result of the provisions of the Ordinance and the prohibition of entering into benami transactions, the benamidar would be acquiring the rights to the property by the mere lending of his name and without investing any money for the purchase of such property. Accordingly, it is provided that no amount shall be payable for the acquisition of any property held benami; (c) Sections 81 and 94 of the Indian Trusts Act, 1882, shall also be repealed. 38. Subsequently, the Bill led to enactment of The Benami Transactions (Prohibition) Act, 1988. 39. From an analysis of the above, it is evident that the primary objective of the aforesaid Act was to outlaw benami transactions by making it an offence. All properties held benami would be subject to acquisition as the benamidar would be acquiring the rights to the property by mere lending of his name and without investing any money for the purchase of such property. Thus there was no question of payment of any compensation for the acquisition of any property held benami. 40. Sub-Section (3) of Section (1) provided that while provisions of Sections 3, 5 and 8 would come into force at once, the remaining provisions would be de....
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.... he is a trustee or towards whom he stands in such capacity. 45. Sub-Section (1) of Section 5 made it clear that all properties held benami shall be subject to acquisition by such authority, in such manner and after following such procedure as may be prescribed. As per Sub-Section (2), no amount shall be payable for the acquisition of any property under Sub-Section (1). 46. Section 6 clarified that provisions of the said Act would not affect provisions of Section 53 of the Transfer of Property Act, 1882 or any law relating to transfer for an illegal purpose. Section 7 provided for repeal of certain provisions of other Acts. While power to make rules by the Central Government was provided for in Section 8, Section 9 dealt with repeal and savings. 47. In the year 2016 Parliament enacted the Benami Transactions (Prohibition) Amendment Act, 2016 (already referred to as 'the Amendment Act of 2016'). As per the preamble to the Amendment Act of 2016, it is an Act to further amend the Benami Transactions (Prohibition) Act, 1988 (already referred to as 'the 1988 Act'). 48. Before we advert to the various provisions of the Amendment Act of 2016, it would be useful to refer to the speech ....
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....ion for such property has been provided, or paid by, another person; and (b) the property is held for the immediate 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 o....
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....ause (D), a transaction or an arrangement in respect of a property where the person providing the consideration is not traceable or is fictitious would also be treated as benami transaction. 51. As per Section 2 (10) 'benamidar' has been defined to mean 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. Likewise, 'beneficial owner' has been defined in Section 2 (12) to mean a person, whether his identity is known or not, for whose benefit the benami property is held by a benamidar. 52. Section 6 of the Amendment Act of 2016 provides for amendment of Section 3 of the principal Act. While Sub- Section (1) of Section 3 has been retained, Sub-Section (2) is omitted. Upon such omission, Sub-Section (3) of the principal Act has been renumbered as Sub-Section (2) whereafter a new Sub-Section (3) has been inserted which says that whoever enters into any benami transaction on and after the date of commencement of the Amendment Act of 2016, shall, notwithstanding anything contained in Sub- Section (2), be punishable in accordance with the provisions contained in Chapter VII. While we are on ....
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....involved in benami transaction. 57. Sub-Section (1) of Section 24 says that where the Initiating Officer on the basis of material in his possession has reason to believe that any person is a benamidar in respect of a property, he may after recording reasons in writing, issue a notice to the person to show cause within such time as may be specified in the notice as to why the property should not be treated as benami property. Sub- Section (2) provides for issuance of a copy of such notice to the beneficial owner also if his identity is known. As per Sub- Section (3) where the Initiating Officer is of the opinion that the person in possession of the property held benami may alienate the property during the period specified in the notice, he may with the previous approval of the approving authority by order in writing, attach provisionally the property in the manner prescribed for a period not exceeding 90 days from the date of issue of notice under Sub-Section (1). Sub-Section (4) provides for continuation of provisional attachment till passing of order by the adjudicating authority under Sub- Section (3) of Section 26 or for revoking the provisional attachment of the property. Furt....
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....rity shall make an order confiscating such property, but after giving an opportunity of being heard to the person concerned. Sections 28 and 29 come into play post confiscation as those deal with management and possession of such properties. 61. Chapter V comprising of Sections 30 to 49 provides for Appellate Tribunal to hear appeals against orders of the adjudicating authority. Against any decision or order of the Appellate Tribunal, an aggrieved party may file appeal to the High Court which is provided in Section 49. 62. Chapter VI provides for Special Courts for trial of offences punishable under the 1988 Act as amended by the Amendment Act of 2016. 63. Chapter VII comprising of Sections 53 to 55 provides for penalty for indulging in benami transaction. Under Sub- Section (2) of Section 53, whoever is found guilty of the offence of benami transaction shall be punished with rigorous imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine which may extend to twenty five percent of the fair market value of the property. 64. Chapter VIII comprises of miscellaneous provisions from Sections 56 to 72 dealing....
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....arified that the transaction in question was a benami transaction under Section 2 (9) (A) read with Section 2 (9) (C) of the 1988 Act. Therefore, there is no manner of doubt that according to the first respondent the transaction entered into by the petitioners with third respondent on 14.12.2011 is a benami transaction within the meaning of Section 2 (9) (A) read with Section 2 (9) (C) of the 1988 Act. 69. We have already noted above as to how the definition of benami transaction as finding place in the unamended 1988 Act has undergone a qualitative change post the Amendment Act of 2016. Under Section 2 (a) of the unamended 1988 Act, benami transaction was defined to mean any transaction in which property is transferred to one person for a consideration paid or provided by another person. Thus, for a transaction to come within the ambit of benami transaction under the unamended 1988 Act, it must be a transaction in which property is transferred; such property must be transferred to one person by another person; and such transfer of property must be for a consideration paid or provided by the transferor. Under the Amendment Act of 2016, the definition of benami transaction has been....
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....hese two expressions are defined under the Amendment Act of 2016 and must be read in conjunction with the new definition of benami transaction as provided in Section 2 (9). Benamidar is the person, real or fictitious, in whose name the benami property is transferred or who holds such benami property; this would include a person who lends his name to such transfer or holding of benami property. Again, beneficial owner means, the person for whose benefit the benami property is held by a benamidar, whether his identity is known or not. 72. We may now revert back to Section 2 (9) (C) of the Amendment Act, 2016, as per which a benami transaction means, a transaction or an arrangement in respect of a property where the owner of the property is not aware of or denies knowledge of such ownership. Therefore, what Section 2 (9) (C) contemplates is that in the event of a transaction or an arrangement in respect of a property if the owner of the property says that he is not aware of and denies knowledge of such ownership, then such a transaction or an arrangement would be a benami transaction. 73. From the above analysis, it is beyond any doubt that Section 2 (9) (A) and Section 2 (9) (C) ar....
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.... parties. On the other hand, procedural law would cover the rules and prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves. Supreme Court in Thirumalai Chemicals Limited Vs. Union of India (2011) 6 SCC 739 was considering the question as to whether the Appellate Tribunal constituted under the Foreign Exchange Management Act, 1999 was right in rejecting a belated appeal filed under Section 19 of the said Act by applying the first proviso to Sub-Section (2) of Section 52 of the Foreign Exchange Regulation Act, 1973 instead of following the proviso to Sub-Section (2) of Section 19 of the Foreign Exchange Management Act, 1999. It was in that context, Supreme Court delved into the above issue. According to the Supreme Court, law is well settled that the manner in which the appeal has to be filed, its forum and the period within which the same has to be filed, are matters of procedure, while the right conferred on a party to file an appeal is a substantive right. Thereafter, Supreme Court delineated the distinction between substantive and procedural laws as under: 23. Substantive law refers to a ....
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....ell as provisions like Section 24 providing for issuance of show cause notice etc., are machinery provisions and therefore they would be read to have become effective from the date the 1988 Act came into the statute book. However, in view of the discussions made above, we have held the above two provisions of Sections 2 (9) (A) and 2 (9) (C) to be substantive. 77. Article 20 of the Constitution of India deals with protection in respect of conviction for offences. Sub-Article (1) says that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. The other two Sub Articles of Article 20 are not relevant for the present discourse. So Article 20 (1) has got two parts. By the first part, no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence. The second part says that such a person shall not be subjected to a penalty greater than that which might have been inflic....
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.... that to apply an amending Act which creates a new obligation or pay additional compensation or which reduces the rate of compensation to pending proceedings for determination of compensation for acquisitions already made retrospectively would not be permissible unless such a construction follows from express words or necessary implication. Regarding penal statutes he is quite clear. Penal statutes which create offences or which have effect of increasing penalties in existing offences will only be prospective by reason of the constitutional restriction imposed by Article 20 of the Constitution. Therefore, if an Act creates a new offence it will bring into its fold only those offenders who commit all ingredients of the offence after the Act comes into operation. It is a settled principle of interpretation of criminal law that such provisions have to be strictly construed and cannot be given a retrospective effect unless the legislative intent and expression is clear beyond ambiguity. However, the prohibition of Article 20 of the Constitution to enact retrospective penal laws would have no application to a law which only modifies the rigor of an existing penal law. 80. In Hitendra V....
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....ccomplished. (v) A Statute which not only changes the procedure but also creates a new rights and liabilities, shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication. 81. Thus, a statute which affects substantive rights is presumed to be prospective in operation unless made retrospective either expressly or by necessary intendment. On the other hand, a statute which merely effects procedure is presumed to be retrospective. Every litigant has a vested right in substantive law. But no such right exists in procedural law. Even in case of a procedural law, it should not be generally applied retrospectively where the result would be to create new disability or obligation or to impose new duties in respect of transactions already accomplished. 82. Constitution Bench of the Supreme Court in K.S.Paripoornan Vs. State of Kerala (1994) 5 SCC 593 was considering the correctness of the decision of the Supreme Court in Union of India Vs. Zora Singh (1992) 1 SCC 673, decided by a bench of three judges. In Zora Singh (supra) it was held that payment of additional amount payable at the rate of 12% p.a on the market value under....
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....ts subsequently imposed, nor open to attack under powers of avoidance subsequently conferred. They are also not rendered valid by subsequent relaxations of the law, whether relating to form or to substance. Similarly, provisions in which a contrary intention does not appear neither impose new liabilities in respect of events taking place before their commencement, nor relieve persons from liabilities then existing, and the view that existing obligations were not intended to be affected has been taken in varying degrees even of provisions expressly prohibiting proceedings. (See : Halsbury's Laws of England, 4th Edn. Vol. 44, paras 921, 922, 925 and 926). 45. These principles are equally applicable to amendatory statutes. According to Crawford: Amendatory statutes are subject to the general principles relative to retrospective operation. Like original statutes, they will not be given retrospective constructions, unless the language clearly makes such construction necessary. In other words, the amendment will usually take effect only from the date of its enactment and will have no application to prior transaction, in the absence of an expressed intent or an intent clearly impl....
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....he Amendment Act of 2016 shall be construed as a reference to coming into force of that provision. Central Government, in exercise of the powers conferred by Sub-Section (2) of Section 1, issued notification dated 25.10.2016 appointing the first day of November, 2016 (01.11.2016) as the date on which provisions of the Amendment Act of 2016 shall come into force. 85. Thus, from the notification dated 25.10.2016 as alluded to hereinabove, which has since been published in the Official Gazette, it has been clearly mentioned that Central Government has appointed the first day of November, 2016 as the date on which provisions of the Amendment Act of 2016 shall come into force. Respondents have not placed any other notification of the Central Government to the effect that provisions of Section 2 (9) of the Amendment Act of 2016 shall have effect from an anterior date. In fact, in the earlier part of this judgment we have referred to Finance (No.2) Act, 2019, more particularly to Part A of Chapter VI thereof. Part VIII contained amendments to the 1988 Act. As per Section 173 of the Finance (No.2) Act, 2019, Section 23 of the 1988 Act has been amended by insertion of an Explanation. But i....
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.... the subject property in any manner till passing of necessary order by the adjudicating authority under the 1988 Act. The sole ground on which this order was challenged by the petitioner was that principles of natural justice were not followed by the Initiating Officer. It was in that context, learned Single Judge took the view that petitioner would have the opportunity to raise all possible grounds before the adjudicating authority and therefore did not interfere. 87.1 Insofar the decision of the Single Bench of the Madras High Court in Dinesh Chand Surana (supra) is concerned, petitioner did not contend the ground of retrospectivity. Petitioner only challenged the order passed under Section 24 (4) of the 1988 Act while complaining that documents sought for by him were not furnished. While relegating the petitioner to the forum of adjudicating authority, learned Single Judge of the Madras High Court directed the respondents to furnish certified copies of the documents and statements recorded by the petitioner during the course of survey proceedings. 87.2 A Single Bench of the Chattisgarh High Court examined a challenge to the order of provisional attachment of immovable properti....
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....i transaction cannot have retrospective effect. As a matter of fact, Section 2 (9) (A) and Section 2 (9) (C) were not the subject of consideration in Tulsiram (1 supra). 87.3 Lastly, respondents have also relied upon a Single Bench decision of the Madras High Court in K.Nagarajan Vs. Adjudication Authority W.P.No.22037 of 2017, decided on 31.08.2021. We find that challenge made to attachment order under the 1988 Act was on the ground of violation of the principles of natural justice. Learned Single Judge took the view that the challenge was made at the very initial stage when the adjudication was not yet complete. Therefore, petitioner was relegated to the forum of the adjudicating authority, with liberty to submit his objection / defence statements, evidence and documents, further directing the respondents to consider the same and conclude the proceedings in a time bound manner. We are afraid, the above decision can hardly be of any assistance to the respondents. 88. After the hearing was over, learned counsel for the petitioner submitted a memo enclosing therewith a copy of judgment and order of a Division Bench of this Court dated 21.04.2020 in G.Tuhin Kumar Vs. State Bank of ....
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....o be amended in 2016. Amendment came into effect from 01.11.2016. Under the amendment, definition of benami transaction has undergone a change. Thereafter, learned Single Judge posed the question as to whether the amended provisions would apply to the suit transaction since the suit transaction itself was executed prior to the amendment. Additionally, the suit was filed, defence raised and was decreed before the Amendment Act of 2016 came into force. After noting that the amendments introduced by way of the Amendment Act of 2016 affected substantive rights of the parties, Bombay High Court held that the same must be applied prospectively. Taking the above view the second appeal was dismissed. 91. It may be mentioned that assailing the above decision of the Bombay High Court in Joseph Isharat (6 supra) a Special Leave Petition was filed before the Supreme Court being SLP (C) No.12328of 2017. The same was however dismissed by order dated 28.04.2017. 92. In Mangathai Ammal case (8 supra) the original plaintiffs did not plead that the sale deeds / transactions in favour of defendant No.1 were benami transactions. Even the trial Court did not specifically frame the issue as to whether....