TaxTMI 
TaxTMI 
2023 (12) TMI 621
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....6, whereas the petitioner No.2 is the Director of the petitioner No.1-company. 3. Notices under Section 19 of the Prohibition of Benami Property Transaction Act, 1988 (hereinafter referred to as 'the PBPT Act') was issued to the petitioners by the Initiating Officer and responses to the same were filed. Thereafter show cause notice under Section 24(1) and (2) of the PBPT Act was issued to the petitioners by the respondents on 28.04.2023. On 01.05.2023, order for provisional attachment of the property was issued under Section 24(3) of the PBPT Act. On 28.07.2023, the respondents issued order for provisional attachment of the property under Section 24(4)(a)(i) of the PBPT Act till the passing of the order passed by the Adjudicating Authority under Section 26(3) of the PBPT Act. Vide order dated 07.08.2023 (Annexure- 14), the Initiating Authority made a reference to the Adjudicating Authority. 4. Under the above referred circumstances, the petitioners filed this writ petition seeking following reliefs: "It is, therefore, most humbly prayed that this Hon'ble Court may kindly be pleased to:- a. Issue writ in the nature of certiorari or any other appropriate writ/order/direction qu....
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....ase, the two impugned orders passed by the Initiating Officer on 28.07.2023 under Section 24(4) of PBPT Act do not contain different DIN. 8. Learned counsel for the petitioners have further submitted that as per Section 24(4) of the PBPT Act, the Initiating Officer is required to issue the confirmation of provisional attachment order within a period of 90 days from the last date of the month in which the show cause notice is issued. As per the same, the Initiating Officer was supposed to pass the order under Section 24(4) of the PBPT Act till 29.07.2023, however, the Initiating Officer issued and uploaded two pages incomplete order dated 28.07.2023 on the portal of the petitioner No.1 and thereafter on 29.07.2023 issued the complete order under Section 24(4) of the PBPT Act, which was received by the petitioners only on 31.07.2023. It is further submitted that from the above, it is clear that the order under Section 24(4) of the PBPT Act is barred by limitation. 9. Learned counsel for the petitioners have further submitted that despite repeated requests by the petitioners, no material has been supplied to them and no opportunity of personal hearing was provided before passing of ....
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....gued that no proper opportunity of hearing was provided by the respondents and the reply filed on behalf of the petitioners to various show cause notices has not been taken into consideration in entirety. 13. It is also submitted that the written submissions filed by the petitioners in respect of the judgment passed by this Court in M/s Shri Kalyan Building Pvt. Ltd. (supra) were not even taken into consideration. Learned counsel for the petitioners have, therefore, argued that the provisional attachment order as well as the order passed by the respondents under Section 24(4) of the PBPT Act and reference made by the respondents under Section 24(5) of the PBPT Act may kindly be quashed and set aside. 14. Reply to the writ petition is filed on behalf of the respondents and relying on the same, learned counsel for the respondents has argued that there is no illegality in passing the impugned orders as the same are passed after following due procedure laid down under the law, hence, no interference is called for. 15. Heard learned counsel for the parties. 16. For the convenience, the relevant provisions of the PBPT Act as amended are referred herein below: "2(9) "benami transact....
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....een 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. 24. Notice and attachment of property involved in benami transaction.-(1) 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 why the property should not be treated as benami property. (2) Where a notice under sub-section (1) specifies any property as being held by a benamidar referred to in that sub-section, a copy of the notice shall also be issued to the beneficial owner if his identity is known. (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, attac....
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....ithin fifteen days from the date of the attachment, draw up a statement of the case and refer it to the Adjudicating Authority. 26. Adjudication of benami property.-(1) On receipt of a reference under sub-section (5) of section 24, the Adjudicating Authority shall issue notice, to furnish such documents, particulars or evidence as is considered necessary on a date to be specified therein, on the following persons, namely:- (a) the person specified as a benamidar therein; (b) any person referred to as the beneficial owner therein or identified as such; (c) any interested party, including a banking company; (d) any person who has made a claim in respect of the property: Provided that the Adjudicating Authority shall issue notice within a period of thirty days from the date on which a reference has been received: Provided further that the notice shall provide a period of not less than thirty days to the person to whom the notice is issued to furnish the information sought. (2) Where the property is held jointly by more than one person, the Adjudicating Authority shall make all endeavours to serve notice to all persons holding the property: Provided that where the not....
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....d of limitation available to the Adjudicating Authority for passing order is less than sixty days, such remaining period shall be deemed to be extended to sixty days.] [Provided that where the time limit for passing order under this sub-section expires during the period beginning from the 1st day of July, 2021 and ending on the 29th day of September, 2021, the time limit for passing such order shall be extended to the 30th day of September, 2021.] (8) The benamidar or any other person who claims to be the owner of the property may either appear in person or take the assistance of an authorised representative of his choice to present his case. Explanation.-For the purposes of sub-section (8), authorised representative means a person authorised in writing, being- (i) a person related to the benamidar or such other person in any manner, or a person regularly employed by the benamidar or such other person as the case may be; or (ii) any officer of a scheduled bank with which the benamidar or such other person maintains an account or has other regular dealings; or (iii) any legal practitioner who is entitled to practice in any civil court in India; or (iv) any person who h....
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....n 2(8) of the PBPT Act; 3. In terms of the provisions Section 2(10) of the PBPT Act, you are the "Benamidar" of these benami properties; and 4. In terms of the provisions Section 2(12) of the PBPT Act, Sh. Mahaveer Lunia is the "Beneficial Owner" of these benami properties mentioned in the Annexure-A." . In such circumstances, we do not find any merit in the above argument of the learned counsel for the petitioners. 19. The other contention of the petitioner that the order under Section 24(4) of the PBPT Act has been passed by the Initiating Officer beyond the period of limitation is also without any merit because from the bare look of 2 pages order dated 28.07.2023 and 61 pages order dated 28.07.2023, annexed with the writ petition as Annexure-13, it is clear that both contain the same DIN and as such we are of the opinion that both the orders dated 28.07.2023 are one and the same document. Otherwise also, the said objection of the petitioners is technical in nature and cannot be appreciated at this stage. 20. The other contention of the learned counsel for the petitioners that no material was supplied to the petitioners despite repeated requests is also bereft of any merit....
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....s, it is clearly established that:- i. The Benamidar company was previously controlled and owned by entry operators of Kolkata and Mumbai. The company is a shell company/paper company which has been used for providing accommodation/bogus entries in lieu of cash payment. ii. The company was not having real worth as well as creditworthiness to purchase the said lands/immovable properties by way of of making such investment on its own. iii. There is no significant changes in financial position/status of the company before and after acquisition of the company by the Lunia family. iv. Sh. Mahaveer Lunia and his family members are having full control and management of the company since F.Y. 2016-17 (from the date of transfer of shares of these companies in their own names or in the name of the other companies wherein they are holding 100% share). Thus, since F.Y. 2016-17 the company is controlled & managed by Sh. Mahaveer Lunia and his family members. v. The cash transactions carried out through Hawala/Angadia between Shri Mahaveer Lunia and Shri Anil Sankhlecha during F.Y. 2017-18 and 2018-19 were routed in the company and ultimately used for making purchase of the said lands/....
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....hat while considering whether a particular transaction is benami in nature, the six circumstances can be taken as a guide. These six circumstances are discussed below to show that how these are fulfilled in the instant case:- S.No. Circumstances Applicability in the instant case 1. The sources from which the purchase money came. As discussed in aforesaid paras and material available on records, it is evident that the entire consideration for purchase of the said lands/immovable properties in the name of M/s Alishan Complex Pvt. Ltd. was paid by Sh. Mahaveer Lunia which was routed through Sh. Anil Sankhlecha, CA. 2. The nature and possession of the property, after the purchase As discussed in aforesaid paras and material available on records, it is evident that the actual possession over the said lands purchased in the name of M/s Alishan Complex Pvt. Ltd. was/is always with Sh. Mahaveer Lunia, the beneficial owner. M/s Alishan Complex Pvt. Ltd. was only the name lender of the transactions for land records only. 3. Motive, if any, for giving the transaction benami colour; As discussed in aforesaid paras and material available on records, it is evident that the said lan....
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....Section 2(8) of the PBPT Act, 1988 ; 20.1 The transactions carried out by Sh. Mahaveer Lunia S/o Sh. Jawari Lal Lunia (PAN : AAWPL0148A) in the form of providing consideration which was routed by Sh. Anil Sankhlecha, CA to the sellers for making purchases of the said lands/immovable properties in the name of M/s Alishan Complex Pvt. Ltd. are "Benami Transaction" within the meaning of Section 2(9)(A) of the PBPT Act, 1988. 20.2 M/s Alishan Complex Pvt. Ltd., is the "Benamidar" of the said lands/immovable properties in terms of the provisions of Section 2(10) of the PBPT Act, 1988 and Sh. Mahaveer Lunia S/o Sh. Jawari Lal Lunia is the "Beneficial Owner" of these benami properties in terms of the provisions of Section 2(12) of the PBPT Act, 1988. Therefore, the benami properties mentioned in Annexure-A are liable to be confiscated as per the provisions of the PBPT Act, 1988 being benami properties." 26. Having gone through the above reasons recorded by the Initiating Officer, we are of the opinion that submissions of learned counsel for the petitioners referring to Section 2(9) of the PBPT Act are without any basis, hence rejected. 27. The judgment rendered in M/s Shri Kalyan Bu....