TaxTMI 
TaxTMI 
2022 (12) TMI 779
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....t and illegal conclusion has been arrived at by the authorities that the petitioner no. 1 in each of the three cases were benami holders of property or its beneficiary. The grounds of violation of the principles of natural justice have also been taken as, according to the petitioners, their replies were not properly considered and they were not given an effective opportunity to defend themselves. Allegation of recording the statement of the petitioners in duress has also been made. 3. Though the aforesaid issues would have required a detailed deliberation, this Court has been informed that recently a development has taken place in the form of a judgment of the Hon'ble Supreme Court taking a cue of which, these writ petitions can be disposed of without going deep into the merits of the dispute. However, for the sake of convenience, the basic facts of these writ petitions may be narrated as follows. WP(C)/4385/2022 4. There are two petitioners in this case. The petitioner no. 1 is one Shri Banamali Das against whom, the allegation is of being a benami holder and the petitioner no. 2 is one Shri Bhagya Kalita, who is the beneficial owner. It has been projected that two plots of la....
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....Income Tax (BP), Guwahati had issued summons to the petitioner no. 1 directing him to attend and submit certain information in connection with proceedings under the Act. Thereafter notices were issued to the petitioner no. 1 to appear before the authorities for recording of statements in connection with a proceeding under Section 19 of the Act and ultimately, such statements were recorded before the respondent authorities on 25.03.2022. However, on 30.03.2022 show cause notice under Section 24 (1) of the Act was issued followed by the order of attachment dated 31.03.2022 under Section 24 (3). Thereafter various communications were exchanged between the parties whereby the petitioners had requested for providing copies of the purported statement which were extracted by coercion. In the meantime, time was sought for by the petitioners to reply to the show cause notice. Ultimately, the petitioners had to file WP(C)/3248/2022 which was disposed of by this Court vide order dated 23.05.2022 allowing the petitioners to submit their replies to the show cause notice dated 30.03.2022 within a period of 10 days and it was further clarified not to give effect the attachment order in view of th....
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....eplies by contending that the impugned action was without jurisdiction and therefore, null and void. Finally, the authorities vide the impugned order dated 15.06.2022 had passed an order of attachment of the properties and assets till the passing of the order by the Adjudicating Authority under Section 26 (3) of the Act. 7. Shri PK Goswami, learned Senior Counsel has submitted that a three Judges Bench of the Hon'ble Supreme Court in a case of Union of India Vs. Ganpati Dealcom Pvt. Ltd., reported in 2022 SCC OnLine SC 1064 has laid down certain guidelines on the applicability of the Benami Transactions (Prohibition) Amendment Act, 2016. It may be mentioned that by the Amended Act of 2016, a criminal offence was introduced in the form of Section 3 and Section 5 of the Act. The Hon'ble Supreme Court in the aforesaid decision had observed that the date of purchase of the property, alleged to have been made benami, was 02.05.2011 whereas the date of the notice under Section 24 (1) was 29.08.2017. The Hon'ble Supreme Court had held that Sections 3 and 4 of the Act to be inoperative and also the fact that the amendment is prospective in nature. In other words, the amendment would be ef....
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....ially, such in rem proceedings transfer the guilt from the person who utilized a property which is a general harm to the society, to the property itself. ........... ........... ........... 68. At this stage, we may only note that when a Court declares a law as unconstitutional, the effect of the same is that such a declaration would render the law not to exist in the law books since its inception. It is only a limited exception under Constitutional law, or when substantial actions have been undertaken under such unconstitutional laws that going back to the original position would be next to impossible. In those cases alone, would this Court take recourse to the concept of 'prospective overruling'. 69. From the above, Section 3 (criminal provision) read with Section 2(a) and Section 5 (confiscation proceedings) of the 1988 Act are overly broad, disproportionately harsh, and operate without adequate safeguards in place. Such provisions were still-born law and never utilized in the first place. In this light, this Court finds that Sections 3 and 5 of the 1988 Act were unconstitutional from their inception. ........... ........... .......... 128. When we com....