TaxTMI 
TaxTMI 
2025 (9) TMI 208
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....ingh Rathiya and Sanjay Agrawal conspired for purchase of the property in the name of Benamidar Anand Singh Rathiya. Sanjay Agrawal stood beneficial owner for purchase of the property worth of Rs. 3.47 Crores against the consideration of Rs. 30 Lakhs. The land was purchased in the name of Benamidar Anand Singh Rathiya having no means to purchase the land being a BPL Card Holder. His yearly income out of agriculture was between Rs. 60,000/- to Rs. 70,000/-. However, the land was registered in the name of Anand Singh Rathiya on 26.09.2012. The land was purchased from Radha Bai for which consideration was paid by the beneficial owner Sanjay Agrawal. 3. The respondents conducted investigation/inquiry into the matter where the statements of Anand Singh Rathiya, apart from Sanjay Agrawal and even the seller of land Radha Bai were recorded. The statements of Moti Lal Yadav, Smt. Vimla Yadav and Gopal Prasad Namdeo were also recorded, who said to have extended loan to the Benamidar Anand Singh Rathiya for purchase of land. They did not endorse loan to the Benamidar Anand Singh Rathiya for purchase of land, rather shown ignorance about the transactions. They were not even knowing the Ben....
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....rcel in this case was purchased for the future benefit of the beneficial owner Sanjay Agrawal. In the light of the aforesaid facts and circumstances, the impugned order deserves to be set aside. 7. The learned counsel for the appellants further submitted that the appellant Anand Singh Rathiya had disclosed the source to purchase the property in his name. He was having Rs. 6 lakhs out of his saving out of agriculture and Rs. 24 lakhs was obtained as loan from three different persons, namely, Moti Lal Yadav, Smt. Vimla Yadav and Gopal Prasad Namdeo. The amount came through banking transactions yet doubted by the respondents without any reason. Despite the source disclosed by the appellant Anand Singh Rathiya for purchase of land parcel bearing Khasra Nos. 144 and 146 admeasuring 1.692 (1.518+0.174) hectares at Urdana, District Raigarh, the Provisional Attachment Order has been confirmed. 8. The respondents even failed to prove their case against Sanjay Agrawal said to be the beneficial owner. No material could be produced to indicate payment of consideration by him for purchase of land in question. The definition of benami transaction under Section 2(9)(A) of the Act of 1988 is....
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....d for challenge to the impugned order and thereby concluded his arguments. Arguments of counsel for the respondents: 12. The learned counsel for the respondents made elaborate arguments to contest the appeals. He made reference of the evidence collected by the Initiating Officer and considered by the Adjudicating Authority. An elaborate order has been passed by the Adjudicating Authority for confirming the Provisional Attachment Order and answering the reference. It is not only based on documentary evidence but the statements of witnesses recorded under Section 19(1) of the Act of 1988. The statements were given by the witnesses on oath and are admissible in evidence. The detailed arguments raised by the respondents would be referred while dealing with the arguments of counsel for the appellants to avoid repetition of one and the same facts and for the sake of brevity. The prayer of counsel for the respondents was to dismiss the appeals having no substance. Finding of the Tribunal: 13. We have considered the rival submissions of counsel for the parties and scanned the record carefully. 14. In the opening paras of the order, we have given reference about the informati....
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....tner, director of a company, a depository or a participant as an agent of a depository under the Depositories Act, 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 or descendant, where the names of brother or sister or lineal ascendant or descendant and the individual appear as joint-owners in any document, and the consideration for such property has been provided or paid out of the known sources of the individual...." 17. The provision quoted above applies where a property is transferred or it is held by a person of which consideration has been provided or paid by another person. The property is to be held for the immediate or future benefit, direct or indirect of the person who has provided the consideration. The learned counsel for the appellants submitted that the condition to make out a case of benami transaction has not been sat....
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....l and Sanjay Agrawal who remained instrument for opening of the bank accounts. They further stated that as and when any cheque is to be issued, they used to be called for signature on the cheque and otherwise they were not knowing appellant Anand Singh Rathiya. Therefore, those persons disowned any transaction to their knowledge for extending loan to the appellant Anand Singh Rathiya. They rather disclosed their nexus and closeness with beneficial owner Sanjay Agrawal and Sunil Agrawal. They had acted at the instance of those persons to extend alleged loan to the appellant Anand Singh Rathiya. It is further a fact that those persons had capability to extend the loan has not been shown, rather those persons were also having hardly any means to pass on any amount on their own to the appellant Anand Singh Rathiya. In the statement, it has come out that their accounts used to be maintained by the beneficial owner and thereby they did not put money in the bank accounts which was ultimately transferred to Anand Singh Rathiya. 20. In the statement of Anand Singh Rathiya recorded under Section 19(1) of the Act of 1988, he had shown his unawareness about Moti Lal Yadav, Smt. Vimla Yada a....
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....missing. The said seller Radha Bai accused Sunil Agrawal and Sanjay Agrawal for getting the sale deed in the name of someone who never met her with disclosure of his name for purchase of the property. She always believed that property is purchased by Sunil Agrawal and Sanjay Agrawal. In any case, she made it clear that for purchase of property, negotiation was made by Sanjay Agrawal and Sunil Agrawal and not by the appellant Anand Singh Rathiya. 24. The statements of Gopal Prasad Namdeo were recorded under Section 19(1) of the Act of 1988. He disclosed bank accounts in his name, however one bank account with Bank of Baroda, Raigarh was opened by Sunil Agrawal, CA. As required by Sunil Agrawal, blank cheques were sent to sign and handed over to him. The cheques were then to be encashed or amount is transferred at the instance of beneficial owner who said to have high influence with the bank officials to get the things clear. The account No.29250100002442 was opened by Sunil Agrawal, CA and all the transactions in the said account were made by him. Sunil Agrawal used to make transactions in the said account for adjustment entries, whenever required. 25. The statements of Moti L....
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....aled for the reason that even the property documents were found with the appellant Sanjay Agrawal and not with the benamidar Anand Singh Rathiya. The possession of property was also found with the beneficial owner at one point of time but looking to the initiation of the proceeding by the respondents, the possession of benamidar was shown. In any case, the benamidar was not having means to purchase the property. It was purchased at the instance of beneficial owner for future benefit. We are unable to accept the argument of the counsel for the appellants that a case of benami transaction is not made out. The finding recorded by us is after making discussion based on the statements of witnesses and documents available on record which shows a benami transaction in the hands of the appellants where one stood benamidar and other beneficial owner. 28. The appellant has challenged to the prayer for cross- examination of the witnesses whose statements have been recorded. The issue in reference to the prayer of the appellant for cross-examination has been considered by the Adjudicating Authority. It is held that formal cross examination is a part of procedural justice but in the case in ....
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....the rule of a fair hearing and opportunity implicit in any adjudicatory process, affecting the right of the citizen. The question, however, is whether failure to permit the party to cross examine has resulted in any prejudice so as to call for reversal of the orders and a de novo enquiry into the matter. The answer to that question would depend upon the facts and circumstances of each case. For instance, a similar plea raised in Surjeet Singh Chhabra v. Union of India and Ors. MANU/SC/0660/1997: (1997) 1 SCC 508 before this Court did not cut much ice, as this Court felt that cross examination of the witness would make no material difference in the facts and circumstances of that case. The Court observed "3. It is true that the Petitioner had confessed that he purchased the gold and had brought it. He admitted that he purchased the gold and converted it as a kara. In this situation, bringing the gold without permission of the authority is in contravention of the Customs Duty Act and also FERA. When the Petitioner seeks for cross-examination of the witnesses who have said that the recovery was made from the Petitioner, necessarily an opportunity requires to be given for the ....
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....ng that the burden of proving lawful importation had shifted upon the firm after the Customs Authorities had informed them of the results of their enquiries. In appeal before this Court, one of the four arguments advanced on behalf of the Appellant was that the adjudicating officer had breached the principles of natural justice by denying them the opportunity to cross-examine the persons from whom enquiries were made by the Customs Authorities. The Supreme Court rejected this argument stating as follows: "12. We may first deal with the question of breach of natural justice. On the material on record, in our opinion, there has been no such breach. In the show- cause notice issued on August 21, 1961, all the material on which the Customs Authorities have relied was set out and it was then for the Appellant to give a suitable explanation. The complaint of the Appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it to cross-examine them. In our-opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in ....
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....s based on reports alleging tampering or pilferage, the fact situation may be different. Before asking for cross examination the consumer may be granted an opportunity to look into the documents on which the adjudication is proposed. In that event, he will be in a position to know as to the author of which statement is necessary to be cross- examined. The applications for cross-examination are not to be filed in routine manner and equally also not to be disposed of by adjudicator in casual or routine manner. There has to be application of mind by him. Similarly, as noted above, the consumer has to show as to why cross examination is necessary". 31. In the light of the judgment referred to above, we have examined the matter and find that though application for cross- examination was filed before the Initiating Officer without showing relevance of the cross-examination. The appellant did not ask for the cross-examination of a witness whose statements were recorded and has been relied along with the reasons to seek cross-examination of the said witness. If the facts of this case are taken into consideration, the impugned order has been passed not only based on the statements of wit....
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....any knowledge about the same.It is pertinent to mention here that the PAN application dates of both the PANs are 22-06-2014 and 07-06-2019 respectively. The address of PAN- BVCPR8473A is C/o Shri Sanjay Agrawal, Prop: M/s Sanjay Hardware Stores, Buji Bhawan Chowk, Raigarh (CG) whereas the address of PAN-EEZPR4650L is Ward No-08, Beherapara, Lailungo, Dist-Raigarh(CG). Based upon the above fact, it is clear that Shri Anand Singh Rathiya was unaware of the PAN BVCPR8473A through which IT'Rs were filed for some of assessment years. i. The Income Tax returns (in short ITRs) with PAN BVCPR8473A were filed from AY-2013-14, 2014-15, 2016-17, 2017-18 and 2018-19 by someone because Shri Anand Singh Rathiya is totally unaware of such filing. The brief of all the said returns are as under: TABLE-2 AY Secured Loan (in Rs.) Unsecured Loan (in Rs.) Fixed Assets Rent Income (in Rs. ) Business Income (in Rs. ) Income from other sources (in Rs. ) Agricultural Income (in Rs. ) Total Income (In Rs. ) (Returned Income) Date of filing ITR type 2013-14 - - - - - 1,85,200 1,76,400 1,85,200 02-08-2014 ITR-2 2014-....
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....ough on the basis of guarantee made by Shri Sanjay Agrawal (Alias Shri Bhola Ram Agrawal) and in the influence of Sh. Sunil Agrawal, current account was opened in the Bank of Baroda for M/s Anand Singh Rathiya, Prop. Sh. Anand Singh Rathiya which is against the norms for opening of current account. (e) The quantum of agricultural income is in decreasing trend without any justification. One of the reasons for showing lower agricultural income in subsequent year is to save himself from any tax burden and from the eyes of tax personnel. ii The consideration for the said purchase was shown to have been paid by Shri Anand Singh Rathiya through his bank account. On perusal of bank statement and relevant sale deed, following details are found in respect of said payments: Table-3 S. No. Date Payment amount Source of payment Remarks 1. 25-09-2012 8,00,000/- Credited an amount of Rs. 5 lakh by CLG/76443 on 24/09/2012 and another amount of Rs. 5 lakh by CLG/764423 Rs 5 lakhs(CLG/764443) was given from the account of Sh. Moti Lal Yadav(A/c No.0412000100174710, Punjab National Bank, Anathalay Road Branch, Raigarh) and Rs. 5 lakh (CLG/764423) wa....
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....n respect of amount of Rs. 8 lakhs is completely false. It is also clear from the above table that the source is some credit entries from other's bank account and cash deposits and not the loan. (b) Who is Shri Moti and how he provided the loan of Rs. 10 lakhs to an unknown person namely Shri Anand Singh Rathiya? From the statement of Shri Moti Lal Yadav, it is clear that both are unknown to each other and he clearly denied to have any transaction with Shri Anand Singh Rathiya. (c) Who is that unknown person who paid Rs. 12 lakhs to him? The statement in respect of Rs. 12 lakh is completely vague and having no authenticity as clear from the above table wherein the source of each entry has been mentioned. Thus, from the above three questions, it is amply clear that the above consideration has been provided by Shri Sunil Kumar Agrawal, CA and Shri Sanjay Agrawal (Alias Shri Bhola Ram Agrawal) in the guise of some name lender persons. Shri Moti who is nothing but was an employee of Shri Sanjay Agrawal (Alias Shri Bhola Ram Agrawal). Shri Anand Singh Rathiya in the given statement u/s 19(1) of the PBPT Act, 1988 had stated that amount of....
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....ts and the same amounts were withdrawn or transferred within few days. Shri Anand Singh Rathiya while giving his statement u/s 19(1) of the PBPT Act. 1988 on oath on 16-03-2020, in reply to question No-20 Page- 12 when asked about the work done by the firm M/s Anand Singh Rathiya, he had replied that he is not aware of any firm namely M/s Anand Singh Rathiya. Whereas the documents furnished by the bank contains his signature as Proprietor of the Firm M/s Anand Singh Rathiya. This clearly indicates that all the above transactions are not known to Sh. Anand Singh Rathiya and all the above transactions were controlled and managed by no one else but by Shri Sunil Agrawal. CA and Shri Sanjay Agrawal (Alias Shri Bhola Ram Agrawal) as clearly seen from the statement of Benamidar and other substantive and circumstantial evidences. Above all, it is important to mention here that the signature of Shri Anand Singh Rathiya on various documents are varied which leads to presume that his signature may have been forged in some of the documents. * One of the important facts regarding signature is that after the dispute arose and FIR lodged, new PAN and new bank account was taken and now t....
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....100174695 opened in name of Shri Moti Lal Yadav (D-3) and Smt. Vimla Yadav (D-4) that amount to the tune of Rs. 18,00,000/- (in total) was transferred from the said bank accounts into the bank account of Shri Anand Singh Rathiya (D-1) on 24.09.2012 & 25.09.2012. In this regard, joint statement of Shri Moti Lal Yadav (D-3) and Smt. Vimla Yadav (D-4) recorded u/s 19 (1) of the PBPT Act before IO has been analyzed and perusal of the same revealed that Shri Sanjay Agrawal (Alias Bholaram Agrawal) (D-5) had made them open two bank accounts (one bank account 0412000100174710 in name of Shri Moti Lal Yadav (D-3) & one joint bank account 0412000100174695 in name of Shri Moti Lal Yadav (D-3) and Smt. Vimla Yadav (Now Smt. Ganga Yadav) (D-4)) in Punjab National Bank. They have clearly stated that they have no knowledge of financial transactions being done in the said bank accounts. Moreover, it has been stated by them that Shri Sanjay Agrawal (Alias Bholaram Agrawal) (D-5) had taken possession of all the documents viz. bank account passbooks, Cheque Books, ATMs etc. of the said bank accounts. Moreover, when asked about the financial transactions carried out in the said bank accounts, they cl....
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....bmission on legal aspects and on merits also, which have been duly considered by this Authority. Based on the submissions, facts, material available on record, it is observed that the property mentioned at Sr.no.1 of Table A at para 2.4 of this order was purchased in the name of M/s Anand Singh Rathiya from Smt. Radhabai for a consideration of Rs. 30,00,000/-, the source of which is claimed by Shri Anand Singh Rathiya (D-1) as Rs. 6,00,000/- from past accumulated savings Rs. 10,00,000/- loan from Shri Moti Lal Yadav (D- 3) Rs. 8,00,000/- loan from Sint. Vimla Yadav (D-4) and Rs. 6,00,000/- loan from Shri Gopal Prasad Namdeo (D-2). In this regard, bank account statements of Shri Gupal Prasad Namdeo (D-2), Shri Moti Lal Yadav (D- 3) and Smt. Vimla Yadav (D-4) have been analyzed. It is observed from the bank account statement of Shri Gopal Prasad Namdeo (D-2) that Rs. 6,00,000/- were first deposited in cash on 25.09.2012 in his bank account no.29250100002442 and the same were transferred to Shri Anand Sing Rathiya (D-1) on the same day. Shri Anand Singh Rathiya (D-1), in his statement as well as in reply, had stated that he had taken a loan of Rs. 6,00,000/- from Shri Gopal Prasad Nam....