AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (6) TMI 1752
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....e original owner of the property namely Sh. Ramneek Singh (Appellant- Benamidar). 3. The brief facts are that in July 2006, Mr. Ramneek Singh (or spelt as Mr. Ramnik Singh in the past years) applied and booked a Flat (No.D6-G01 admeasuring 2810 sq. ft. in Parsvanath Exotica, Sector 53, Gurgaon) executing a Flat Buyer Agreement (FBA) with the builder / developer M/s Parsvanath Developer Ltd. against the said booking, Mr. Ramneek Singh issued a cheque for Rs.9,75,000 to the builder from his HSBC account. 4. It is the case of the appellants that the main purpose of Mr. Ramneek Singh in making this investment was to get advantage of the boom in the real estate market at that time (2006-07) to make some short term capital gain and build some capital for himself in the process, by selling the said property at the earliest opportunity, however, it has not happened as the builder / developer was neither keeping pace with the market forces nor with his committed schedule of building completion as it was noticed from the news reports from Times of India and Indian Express (Copies filed). 5. It is stated by Mr. Ramneek Singh that the said investment was successful and on the other ha....
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....which was duly completed by the developer M/s Parsvanath Developer Ltd. on 6thApril 2012 and the builder transferred and endorsed the said property (FBA) on 06.04.2012 in the name of Smt. Pamela Bhardwaj. All these facts are supported by the documentary evidence filed by the appellants. 11. It is common case of both appellants that after making the entire payment Smt. Pamela Bhardwaj, became the rightful, bona-fide, sole, genuine and undisputed owner of the said property as per Section 53A of The Transfer of Property Act, 1882. The said transfer has not been challenged by any person or authority at any time. 12. It is stated by both appellants in pursuant to the said Agreement to Sale, Smt. Pamela Bhardwaj has also finally paid off the original booking amount of Rs.9.75 lakhs to Sh. Ramneek Singh (between April 2018 to Oct. 2018) which was originally agreed to be payable upon sale of the impugned property and it is a prepayment and was done without prejudice to any of the pleadings and to fortify the claim of her sole and unencumbered ownership of the same. (Details of the seven payments made aggregating Rs. 9.75 lakhs and the Receipts issued by Mr. Ramneek Singh are filed as....
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....to the inability of the benamidar to pay the rest of the amount, he sold the property to the Beneficial Owner by executing Agreement to Sell and GPA in her name on the condition that he will get the booking money in return and the Beneficial Owner will bear all the dues and penalty w.r.t. to the benami property. He also deposed about the relationship with the Benficial owner, he admitted that she is the mother of his friend/colleague. He also submitted that he will get the money back once the property is sold, however, he hasn't received back his money yet, he admitted that agreement was signed in January 2009 and in the presence of Husband of the Smt. Pamela Bhardwaj who was the Dy. Commissioner in Gurgaon. He would thought that to earn profit and proportionate share of the profits. He admitted that he did not read the Agreement to Sale and he was told verbally that he will receive his money back on the sale of the property. On the confrontation of the earlier statement dated 24.07.2015 he stated that he did not get any consideration for transfer of the benami property and no amount was received by him and he did not remember clearly at that time and he could not remember clearly ....
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....lation itself is a contingent situation on which alleged Benamidar was relying which is utterly illogical. Agreement to Sale dated 27.01.2011 - The Agreement stipulates that the alleged Benamidar has agreed to transfer the benami property whereas the alleged Beneficial owner has already paid to the alleged Benamidar Rs. 13,51,500/- towards the transfer consideration amount for full and final settlement. Payment Receipt dated 30.04.2018, 05.06.2018, 07.06.2018, 24.09.2018, 25.09.2018 and 09.10.2018 alongwith Bank Statements marked as Annexure-7 shows that Shri Ramneek Singh has paid the loan amount of approximately 9 Lakhs after initiation of legal proceeding against the alleged Benamidar/Beneficial owner both. 22. In view of above, learned counsel for the respondent submits that there are so many contradictions among all the above documents. 23. It is now to examine as to whether transaction falls in the ambit or purview of the PBPT Act, 1988 and whether it is explicitly covered by the explanation given in sec. 2(9) which is reproduced below. Sec. 2(9) benami transaction means - (A) A transaction or an arrangement ....... (B) ....... (C)....
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....Benami or establishes circumstances unerringly and reasonably. Hon'ble Supreme Court and High Courts have consistently held that the burden of proving that a particular property is Benami and apparent purchaser is not the real owner always rests on the person who asserts it to be so. The reliance has been placed on Jaydayal Poddar Vs. Bibi Hazra AIR, 1974 SC 171 and Bhim Singh & Anr. Vs. Kan Singh 1980 AIR 727, 1980 SCR(2) 628 and Binapani Paul Vs. Pratima Ghosh & Ors. on 27th April, 2007 Appeal (Civil) 8098 of 2004. It is stated that the above-mentioned case laws relating to Benami Property are of prior to the enactment of the Prohibition of Benami Property Transactions Act, 1988, as amended by Act No. 43 of 2016. In these case laws the prohibition of Benami Transactions as provided in Section 3 of the PBPT Act has not been examined. These case laws have been decided to examine the civil matters in respect of the title owner and the real owner of the property, since at that time, the real owner was entitled to get the property transferred in his name from the name of the alleged Benamidar if the real owner had made the payment s in purchase of the property in the name of allege....
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....oof upon the defendant (noticee) of existence of facts and mandatory conditions for treating a transaction or property as benami. There is no provision wherein any presumption has been made about existence of a fact in favour of the authority alleging a transaction/property to be benami and issuing a show cause notice to that effect and nor there is any such presumption against the person to whom such notice is issued. 31. Recent judgment in the case of Smt. P. Leelavathi, supra given in 2019, the Supreme Court has even subsequent to the prohibition placed upon benami transactions consistently held that the initial burden of showing that a property is benami rests on the person making the allegation and the burden can be discharged by leading direct evidence or strong circumstantial evidence to that effect. 32. The Respondent (the Initiating Officer) in its brief rejoinder has also sought to rely on the provisions of the Hon'ble Supreme Court in the case of State of Bengal v. Mir Mohammad Omar & Ors. On 29th Aug 2000 and have also reproduced relevant paragraphs of the same. However, the said Judgement does not go as far as to shift the burden of proof onto the alleged benamid....
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....mmal v. Subramaniam and others (2004) 7 SCC 233), it was held that: "This court in a number of judgments has held that it is well established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises, as a substitute of proof. The court referred to its various earlier judgments in the cases Jaydayal Poddar v. Bibi Hazra, Krishnan and Agnihotri v. State of M.P., Thakur Bhim Singh v. Thakur Kan Singh, Pratap Singh v. Sarojini Devi and Heirs of Vrajlal J. Ganatra V. Heirs of Parshottam S. Shah. (c) Smt. Usha Bhar vs Sanat Kumar Bhar [2004 135 Taxman 526 Cal] "3. In a suit claiming a property as Benami, there must be cogent and sufficient evidence to conclude that the apparent is not the real. In order to ascertain whet....
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....on for the purchase of the property in the name of a non-assessee was provided by the assessee. 4) Apart from the relationship between the parties, there must be some material or evidence to support the case of benami nature of the transaction." (e ) Jayadayal Poddar vs Bibi Hazra AIR 1974 SC171 "It is well settled that the burden of proving that the particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact". (f) Thakur Bhim Singh v. Thakur Kan Singh (1980) 3 SCC 72 "17. The principle enunciated by Lord Macmillan in the case of Manmohan Dass and Ors. (supra) has been followed by this Court in Jayadayal Poddar (deceased) through his L. Rs. and Anr. v. Mst. Bibi Hazara and Ors. Sarkaria, J. observed thus: It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, alw....
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....that a particular sale is Benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs.........." (l) Smt. P. Leelavathi (D) vs V. Shankarnarayana Rao (Civil Appeal No. 1099 of 2008, Dt of judgment 9th April 2019....
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....on them, wherein the legislature intended to shift the onus of proof onto the defendant. 35. If the legislature intended to shift the burden of proof to prove that a property is not benami onto the Defendants, then it would have said so explicitly in the Act or provided for a statutory presumption to show the same. In the absence of a statutory presumption shifting the onus onto the defendants, the onus of proof a in the initial stages shall always remain upon the initiating officer due to the presumption as expounded by the Hon'ble Supreme court that a purchaser is presumed to be the owner of the property until he brings out with cogent evidences either direct or strongly circumstantial that a presumption arises that the transaction is benami. Only then can the onus be said to shift to the Defendants to disprove the new presumption. 36. The Respondent in their brief rejoinder have also sought to rely on the Judgement of the Hon'ble Apex Court in the case of UOI v. R Gandhi (2010) 11 SCC 1 to show that Tribunals can generally regulate their own procedure applying the provisions of code of civil procedure only where it is requirement without being restricted by the strict rule....
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....es any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person." Section 102 of the Indian Evidence Act goes one step forward to say "The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side." It is therefore clear that the burden of proof lies upon the Initiating officer in terms of Section 106, 101 and 102 of the Indian Evidence Act, 1872. As it has been consistently laid down that the burden to prove a transaction to be a benami is on the person who alleges the same to be benami. It is because of the well accepted and established cardinal principle of law that the apparent state of affairs must be taken to be the real state of affairs unless the contrary is proved. 43. Coming to the issue in hand on merit, it is submitted on behalf of the appellants that in view of admission, there is no benami property as defined in section 2(c) of the original act and also sec. 2(8) of the amended act of 2016 and the....
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....y Affidavit of Mr. Ramneek Singh dated 05.03.2018. The DDIT was recorded well before new PBPT Act came into force. Thus, the context in which this statement was taken was far different from the object, scope and operation of new Benami law, and thus could not be made the sole basis to take action under Benami Law. Therefore, it was subsequently clarified also by Mr. Ramneek Singh in his statement recorded by the IO on 28.02.2017, wherein he stated the correct facts in reply to question number 5. 49. Further, Mr. Ramneek Singh has submitted an affidavit dated 05.03.2018 wherein he has deposed the correct facts on oath and also reiterated that earlier statement dated 24.07.2015 was given under pressure and without access to documents and facts which were more than five years old. The statement dated 28.02.2017 was given by Mr. Ramneek Singh duly supported with documentary evidences e.g. Agreement to Sale, GPA etc. 50. It is well settled position of law that a statement which is based upon and is also matching with the contents of the documentary evidences has got more evidentiary value in the eyes of law as compared to a statement given just in the air on the basis of mem....
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....y evidence will prevail over the oral evidence and further, no injunction can be sought against the real owner and thus, the trial court dismissed the suit. Against the aforesaid judgment and decree passed by the trial court, the plaintiff-appellant filed an appeal. The lower appellate court, after considering the matter in detail, affirmed the judgment and decree passed by the trial court and rejected the appeal. (4) Submission of the counsel for the plaintiff-appellant is that the plaintiff is in possession of the property and he cannot be dispossessed without following the due process of law. (5) I have gone through record of the second appeal and further considered the aforesaid submission of the counsel for the plaintiff-appellant. (6) On consideration of the same, I am of the view that both the courts below have passed the judgment and decree on the basis of documentary evidence as well as well settled principle of law that no injunction can be issued against the real owner of the property, therefore, the submission of the counsel for the plaintiff-appellant has no force. No substantial question of law is involved in this second appeal and therefore....
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....n original. Section 91 is based on what is sometimes described as the "best evidence rule". The best evidence about the contents of a document is the document itself and it is the production of the document that is required by Section 91 in proof of its contents. In a sense, the rule enunciated by Section 91 can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act. 51. The statement of Mr. K. K. Goyal - Prop. of M/s Tirupati International, was also recorded by the IO on 02.03.2017 wherein detailed questions were asked with regard to amount given as loan of Rs. 9,50,000/- to Mr. Ramneek Singh which was used by Mr. Ramneek Singh to make payment for original booking and allotment of the flat. 52. It is also a matter of record that when this statement was confronted to Mrs. Pamela Bhardwaj, it was noticed by her that though Mr. Ramneek Singh has duly confirmed the transaction in all aspects but probably under fear, threats, pressure and stress, he created confusions on the aspect of his signature....