TaxTMI 
TaxTMI 
2024 (3) TMI 1060
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....d 05/01/2024 (Annexure P/1) issued under Section 24(1) of the Prohibition of Benami Property Transactions Act, 1988 (hereinafter referred as 'Act of 1988') and (ii) Provisional Attachment Order (P.A.O.) dated 05/01/2024 (Annexure P/2) issued under Section 24(3) of Act of 1988. 4. Shri Sumit Nema, learned Senior Advocate for the petitioners submits that the show cause notice (Annexure P/1) and provisional attachment order (Annexure P/2) are called in question mainly on the ground that the alleged benami transaction has taken place prior to 01/11/2016, the date when Act of 1988 stood amended. In view of recent judgment of Supreme Court in Union of India & another vs. M/s Ganpati Dealcom Private Limited (2023) 3 SCC 315, show cause notice and provisional attachment order is bad in law. Section 5 of Act of 1988 is declared as unconstitutional by the Supreme Court in Ganpati Dealcom Private Limited (supra) and therefore, petitioners may not be relegated to avail the in house remedy under the Act of 1988. Heavy reliance is placed on para 127.2 and 127.4 of the judgment of Supreme Court in Ganpati Dealcom Private Limited (Supra). 5. The next submission of learned Senior Counsel for the ....
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....i Dealcom Private Limited (supra) covers the field and it was no more open to the respondents to issue the impugned show cause notice and P.A.O. 8. Sounding a contra note, Shri N. Venkatraman, learned ASG assisted by Shri Sidharth Sharma, learned counsel urged that the first document called in question is a show cause notice. This is trite that a show cause notice can be questioned only when there exist a jurisdictional error or error of competence. The show cause notice is pregnant with various facts and is running in more than hundred pages. The petitioners should either admit all the facts and then argue the question of law or should avail the inhouse remedy. Both the remedies are not simultaneously available to the petitioners. 9. Interestingly, learned Senior Counsel for the petitioners and learned ASG both have placed reliance on certain paragraphs of judgment of Supreme Court in Ganpati Dealcom Private Limited (supra). Learned ASG strenuously contended that in Ganpati Dealcom Private Limited (supra), the Apex Court has interfered only to the extent a punitive action was sought to be taken with retrospective effect. By placing reliance on the definitions of 'Benami property....
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....Act of 1988 were called in question in the said petition by contending that properties mentioned in the show cause notice shows that the same were purchased before amendment had taken place in the said Act in the year 2016. Thus, the amended provisions cannot be made applicable with retrospective effect. This Court did not interfere in the show cause notice in the light of judgment of Supreme Court in Mohd. Gulam Ghouse (supra). This Court considered the scheme ingrained in Section 24 and 26 of the Act of 1988. The Division Bench considered the order passed in WP No. 10280/2017 (Kailash Assudani Vs. Commissioner of Income Tax and Ors.) wherein the Writ Court declined interference against the PAO. 14. The relevant portion of order in Kailash Assudani (supra) where scheme of the Act of 1988 was considered reads thus : "The order dated 29.06.2017 is a provisional attachment order under Section 24(4) of the PBPT Act, 1988. The order itself shows that it is issued with the prior approval of approving authority, but will remain subject to passing of necessary order by the adjudicating authority. Section 24(3) of the PBPT Act makes it clear that the order of attachment would be a provi....
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.... Sub-section (6) of Section 26 of the Act. The impugned order is subject to judicial review before the adjudicating authority. The order passed by the adjudicating authority can be assailed before the appellate tribunal constituted under Section 31 of the Act. The order of appellate tribunal can also be called in question by preferring appeal to the High Court within a period of 60 days. A microscopic reading of provisions make it clear that principles of natural justice are reduced in writing in the shape of amendment in the said act. The amended provisions contains a complete code in itself. 7. In this back drop, it is to be seen whether at this stage any interference is warranted by this Court. In C.B. Gautam (Supra) the order of compulsory purchase under Section 269-UD(1) of Income Tax Act was served on the petitioner without issuing any show cause notice and without giving any opportunity to him. The Apex Court in the aforesaid factual back drop interfered in the matter. In the said case, neither show cause notice was given nor reasons were assigned in the impugned compulsory purchase order. In the present case show cause notice has been issued, opportunity has been given to....