2024 (11) TMI 623

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....the case, it was submitted that an agricultural land of Khasra number 526/3 situated in Village Girdava, Sahanpur, U.P. has been attached by the respondent, said to be out of benami transaction. It was ignoring that the sale consideration of Rs. 27,45,000/- along with the stamp duty of Rs. 1,37,500/- was conveyed by the appellant and the sale deed was duly registered as per the Registration Act. 3. The property purchased by the appellant was not out of the benami transaction and otherwise the purchase of the property was much prior to the amendment in the Act of 1988 by the Amending Act of 2016 with effect from 01.11.2016. The transaction prior to the amendment of 2016 with effect from 01.11.2016 has been protected by the Apex Court in the case of "Union of India & Anr. Versus M/s. Ganpati Dealcom Pvt. Ltd." dated 23.08.2022 reported in 2022 SCC Online SC 1064. The Judgement aforesaid came subsequent to the impugned order and accordingly it was not applied by the Adjudicating Authority. The case in hand is squarely covered by the Judgement of the Apex Court in the case of the "Union of India & Anr. Versus M/s. Ganpati Dealcom Pvt. Ltd." 4. The learned counsel for the appellan....

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....refully. The facts on record shows attachment of one agricultural land having area of 0.610 hectare of khasra number 526/3 in village Girdava of Saharanpur, UP. said to have been effected by the benami transaction. It is not in dispute that the I.O. could not identify the beneficial owner and therefore the order has been passed against the benamidar. The fact aforesaid is fortified from para 17 of the order and recorded by the Adjudicating Authority which is reproduced hereunder:- In the light of the above discussion and material in possession of this office, I have reason to believe that the property mentioned above i.e. an Agricultural Land (Area- 0.610 hectare) Khasra No.526/3, Chak No. 47 as per Jot Chakbandi Aakar Patr-23 Bhag-1, situated at Village- Girdava, Sahanpur, Pargana & Tehsil Najibabad, Bijnor, U.P. is a Benami Property and Sh. Saleem, Sh. Mohammad Shameem, Smt. Munni and Sh. Mohd. Shahzad are Benamidars of the aforesaid property. However, the beneficial owner of the property is not ascertained. 9. The reiteration of the aforesaid fact exist even in subsequent paras in reference to the reply of the defendant . Para 15 to 17 of the order in reference to th....

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....has prospective application. Therefore, we need not to refer detailed facts of the case regarding the purchase of the property and source disclosed by the appellant being a transaction prior to 01.11.2016 and is not falling under section 2 (9A) of the amended provision. 11. In view of the above, we find that the impugned order has been passed while considering the facts of the case but treating it to be a case under section 2 (9) (A) of the Amending Act though the person alleged to have provided the consideration for purchase of the property is not known. Section 2 (9) of the Amending Act of 2016 is quoted hereunder:- Section 2- The Benami Transactions (Prohibition) Act, 1988 2 (9) Definitions (9)"benami transaction" means,- (A) a transaction or an arrangement- (a)where a property is transferred to, or is held by, a person, and the consideration 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 u....

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....der section 2 (9) (A) in ignorance of the fact that beneficial owner has not been identified. In fact, it was through out considered to be a case falling under section 2 (9B) of the Act of 1988 as amended by the Amending Act of 2016. The conclusions have not been specifically drawn in reference to section 2 (9 )(A) but it has been referred in discussion part. 13. In the conclusion drawn by the I.O., a case is not made out to fall under section 2 (9 ) (A) of the Act of 1988 as amended by the Amending Act, 2016. The case in hand is thus squarely covered by the Judgement of the Apex Court in the case of "Union of India & Anr. Versus M/s. Ganpati Dealcom Pvt. Ltd." . The relevant part of the judgement is quoted hereunder for ready reference:- Conclusion 127. In view of the above discussion, we hold as under: 127.1 Section 3(2) of the unamended 1988 Act is declared as unconstitutional for being manifestly arbitrary. Accordingly, Section 3(2) of the 2016 Act is also unconstitutional as it is violative of Article 20(1) of the Constitution. 127.2 In rem forfeiture provision under Section 5 of the unamended Act of 1988, prior to the 2016 Amendment Act, was unco....