TaxTMI 
TaxTMI 
2026 (5) TMI 711
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....me of the appellant confirming and reserving four flats on different floors. The amount of consideration was paid and mentioned in the allotment letters. The Agreement to Sell was entered with the developer and was registered in the name of third-parties. The appellant duly disclosed it in the survey carried out under Section 133A of the Income-tax Act. In fact, the appellant disclosed total additional income of Rs. 1.71 Crore bifurcated in four different financial years when survey was conducted. This was with inclusion of the cost of the four flats including stamp duty. A sum of Rs. 49.51 lakhs was disclosed towards the payment for four flats + stamp duty aggregating to Rs. 5.71 lakhs. 3. The transaction of flats booked and registered in the name of third-parties was also disclosed to the Income Tax Department. However, since the appellant accepted the transaction and paid taxes, no further action was to be taken which includes under the Prohibition of Benami Property Transactions Act, 1988 (in short "the Act of 1988"). A reference of one flat alleged to have been sold in the year 2005-2006 was given, however, with the admission that during the search and seizure under Section....
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....ing benami transaction and accordingly, the Adjudicating Authority has rightly confirmed the PAO. Elaborate arguments were made by the Ld. Counsel for the respondent. It would be referred while dealing with the arguments of the Ld. Counsel for the appellant to avoid repetition of same facts and for the sake of brevity. Findings of the Tribunal: 8. The brief facts pertaining to the case have been disclosed by the Ld. Counsel for the appellant which involves allotment of four flats between the period starting from 24.07.2002 to 26.01.2003. It is with the further submission that the construction of flats could not be completed by the builder and therefore agreement to sell of the four flats was registered in the name of benamidars, namely, Shri Devendrasingh Rajput, Shri Rajesh S. Chhaparia, Shri Vijay S. Chhaparia and Shri Shailendra R. Gupta. It is with the further admission that consideration on allotment of flats was paid by the appellant and not by the persons named above. The agreement to sell of the flats said to have been entered at the instance of the appellant in favour of the benamidar on account of non- completion of the construction. However, the fact remains that a....
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....son whose consideration has been provided or paid by another person then also it would be a "Benami Transaction". 37. The appellant has referred to the definition only by taking the first part, i.e. transfer of shares ignoring the second part of the definition regarding holding of property. If a person is holding a property as on the date of the amendment or subsequent to it, whose consideration was paid or provided by another person, then it will fall under the definition of "Benami Transaction". The consideration of definition of "Benami Transaction" by dividing it into two parts was not made earlier. 38. In the case of Nexus Feeds Limited & Others (Supra), we do not find a specific argument in reference to holding of property by a person of which consideration was paid or provided by another person. 39. For the aforesaid purpose, we refer para 69, 69.1, 70, 71, 73 and 93 of the said judgement and are quoted here under. 69. We have already noted above as to how the definition of benami transaction as finding place in the unamended 1988 Act has undergone a qualitative change post the Amendment Act of 2016. Under Section 2(a) of the unamended 198....
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...., the property need not be transferred by 'another person'. The property can be transferred to by any person or held by a person on behalf of any person. But the consideration for such property is provided or paid by the 'another person'. The amended definition proceeds further; such transferred property must be held for the immediate or future benefit of the person who has provided the consideration and such benefit may be direct or indirect. It is equally significant to note that under the unamended 1988 Act there was no definition of 'benamidar' and 'beneficial owner'. These two expressions are defined under the Amendment Act of 2016 and must be read in conjunction with the new definition of benami transaction as provided in Section 2(9). Benamidar is the person, real or fictitious, in whose name the benami property is transferred or who holds such benami property; this would include a person who lends his name to such transfer or holding of benami property. Again, beneficial owner means, the person for whose benefit the benami property is held by a benamidar, whether his identity is known or not. 73. From the above analysis, it is beyond....
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....1. That being the position, we have no hesitation to hold that the show cause notice dated 30.12.2019, provisional attachment order dated 31.12.2019 and the impugned order dated 30.03.2021 are null and void being without jurisdiction. Consequently, the impugned order is set aside and quashed. 40. The Hon'ble High Court, no doubt propounded a ratio of prospective operation of the Amending Act of 2016 and even refers to the definition of "Benami Transaction". But, the specific argument in reference to holding of the property by a person whose consideration was paid or provided by another person was not raised rather emphasis was in regard to the transfer of the property prior to the amendment by the Amending Act of 2016. The specific argument aforesaid was not raised even before us in any of the appeals decided by this Tribunal earlier rather the decision therein was based on the admission of the counsel for the respondents that Benami Transaction involved therein was of the period prior to 01.11.2016. The orders were passed on the admission of the parties that Benami Transaction is prior to 01.11.2016. 41. In the instant case, a contest was made by the counsel for ....
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....s to the transfer of the property held immediately or for future benefit of the person who has provided the consideration. It would also fall in the definition of "Benami Transaction". 48. According to the Division Bench of the High Court, the two expression words, "transfer" and "held" under the amended provision need to read in conjunction and conclusions have been drawn in para 71 in the case (Supra) that "Benamidar" is a person, real or fictional, in whose name the Benami property is transferred or who holds such Benami property. 49. The conclusion therein are against the appellants who referred subsequent paras, which are literally based on the admissions of the party where it was agreed that the Benami Transaction was of the period prior to the amendment by the Amending Act, 2016. That being the position, the judgement supra, does not support the appellant. 50. The appellants have referred to the judgement of the Apex Court in the case of Suresh Seth (Supra). It is to submit that there cannot be a continuous offence. If the offence is committed on a particular day, it ends on the same day. The arguments have been made in the ignorance of the facts i....