TaxTMI 
TaxTMI 
2026 (9) TMI 1948
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..... Ashraf Siddiqui S/o Shri Maqbool Ahmad. The appellant, Shri Suraj Pal was his chowkidar, a person of limited means. The appellant's wife was holding a Below Poverty Line ('BPL') ration card with the names of all family members, which include the appellant also. 3. The inquiry revealed that Mohd. Ashraf Siddiqui, a gang member of late gangster Atiq Ahmed had purchased the properties in the name of Shri Suraj Pal. The appellant was having no means to purchase 42 properties. He did not file the Income Tax Returns till the year 2018-2019, though, after the year aforesaid, he started filing the ITRs but it was not found matching to the bank statements. The information in the ITRs were found incomplete/ incorrect and thereby not corroborated to the inventories grew from Rs. 40 lakhs to Rs. 6.16 Crores. The case of benami transaction was accordingly initiated. 4. During the investigation, it was revealed that the appellant, Shri Suraj Pal had purchased and sold 42 properties from time to time since January, 2018. Those properties were purchased out of the consideration passed on by the beneficial owner, Mohd. Ashraf Siddiqui. It was revealed from the bank statement where transfer ....
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....lant submitted that the impugned order is not sustainable in the eyes of law having been passed without following the provisions of the Act of 1988. The Initiating Officer issued show cause notice on 25.08.2023 and on the same day, the provisional attachment of the properties was caused after taking approval of the Approving Authority. The initiation and completion of the provisional attachment of the properties on the same day is sufficient to show a mechanical approach of the respondent to cause provisional attachment of the properties. 9. Section 24 of the Act of 1988 provides the procedure for causing provisional attachment. It is to be initiated with issuance of the show-cause notice under Section 24(1) of the Act of 1988 and after approval of the Approving Authority, an order of provisional attachment can be caused. All these events cannot take place in a day. The Adjudicating Authority, however, confirmed the provisional attachment of the properties ignoring the aforesaid. Thus, the impugned order deserves to be set-aside on the aforesaid ground itself. 10. Ld. Counsel for the appellant, further, submitted that the basic ingredients to make out the benami transaction c....
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....tion was transferred by Mohd. Ashraf Siddiqui. In view of this also, the impugned order deserves to be set-aside. 14. Ld. Counsel, further, submitted about the financial condition of the appellant. It was stated that from the assessment year 2018-19, the appellant was continuously filing ITRs disclosing his income from the business of real estate. Prior to the aforesaid, the appellant was not having knowledge about the filing of the ITR. However, by itself, an inference could not have taken adverse to the appellant. 15. A reference to the clause 'gross turn-over' from the business of the appellant so as the income has been given sufficient to show his capability to purchase the properties which has been ignored by the Adjudicating Authority. Thus, for the reason aforesaid also, the impugned order deserves to be set-aside. 16. Ld. Counsel for the appellant did not raise any other arguments than referred to above despite an opportunity and called upon by the Tribunal to raise any other legal or factual issues. Ld. Counsel for the appellant restricted his argument to the extent it has been narrated in the impugned order and closed his argument despite an opportunity given by ....
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....ubmissions, if any, within the period specified in the said notice or such period as may be extended by the Initiating Officer, not exceeding three months from the end of the month in which the said notice is issued. (3) Where the Initiating Officer is of the opinion that the person in possession of the property held benami may alienate the property during the period specified in the notice, he may, with the previous approval of the Approving Authority, by order in writing, attach provisionally the property in the manner as may be prescribed, for a period not exceeding [four months] [from the last day of the month in which the notice under sub-section (1) is issued.] (4) The Initiating Officer, after making such inquires and calling for such reports or evidence as he deems fit and taking into account all relevant materials, shall, within a period of [four months] [from the last day of the month in which the notice under sub-section (1) is issued],- (a) where the provisional attachment has been made under sub-section (3),- (i) pass an order continuing the provisional attachment of the property with the prior approval of the Approving Authority, ti....
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....rovision, quoted above, does not show that there should be a gap between the show-cause notice and action to cause provisional attachment of the property. It is even for the approval of the Approving Authority, rather, sequence shows it to be one after another. In the instant case, the respondent had taken a prompt action in the matter so as to cause provisional attachment of the properties to avoid its transfer by the benamidar. We don't find any illegality if the show-cause notice, approval of the Approving Authority and the provisional attachment was caused on the same day. It was after satisfying the requirements of Section 24 of the Act of 1988. 22. Ld. Counsel for the appellant further submitted that no opportunity was given for cross-examination of the witnesses. The aforesaid argument was raised in ignorance of the fact that no prayer to seek cross-examination of the witnesses was made so as to be accepted. It is, otherwise, a fact that in the summary proceedings an opportunity of cross-examination of the witness(s) is not given unless a case is made out requiring a chance of cross-examination. In the instant case, no prayer was made to seek cross-examination of the witn....
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....tered into the transactions for 42 properties from time to time and the present provisional attachment has been caused only for the 6 properties. The description of which is given as under: - S. No. Property description Deed No. Transaction date Consideration paid Valuation 1. Arazi No. 1216, in 0.2040 Hectare, own share and portion 9734/2022 22-11-2022 9,50,000/- 9,86,000/- 193.31 meters. square East-Other's Arazi, West- 15 feet wide way, North- Portion of Arazi South Arazi No. 1217. Khasra No. 1216 m Katahula. Gauspur Sadar, Prayagraj 2. Arazi No. 22 MI 363/1, 386, 261/1 total sold area 1168.82 Square Meter. 0.116882 Hectare, East-Arazi No. West- Arazi No. 20, 18, North-South-Arazi No. 38. Khasra No. 22 Ml. 363/1,186, Arazi No. Bajha, Sadar, Prayagraj 10554/2021 28-12-2021 48,50,000/- 53,73,000/- 3. Arazi No. 1322, 1414, 1455, own share area 7070 Square Meter, 0.7070 Hectare, East-Arazi No. 1440, West-Arazi No. 1323. North-Arazi No. 1328. South-Arazi No. 1321, Khasra No. 1322, 1414, 1455, Shah Pipal Goan, Beniganj. Prayagraj 7197/2021 14-09-2021 50,00,000/....
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.... purchase the property being a street-vendor and even not filing the Income Tax Return till the year 2018. Therefore, the aforesaid aspect was rightly taken by the Adjudicating Authority to hold a case of benami transaction. 26. Ld. Counsel for the appellant further submitted that non-filing of ITR would not prove a benami transaction. The argument aforesaid may be relevant if the benami transaction involves a meagre amount but when it is running in crores of rupees then worthiness of the benamidar becomes relevant. 27. It is an admitted case that the appellant had not filed the ITR till the year 2018 and even thereafter no revised ITR was filed for the previous years. It is said to be due to ignorance of the appellant to submit the ITR. The fact aforesaid cannot be accepted in the background that even subsequent bank account and ITRs filed were having discrepancy and the Initiating Officer had gone deep in the matter where it was revealed that even many cheques signed by the appellant alleged to be on his behalf were not accepted by the bank on account of mismatch of signatures. All these facts were brought on record by the respondent to prove a case of benami transaction an....