2018 (1) TMI 1515 - HC - Benami Property

Prohibition of Benami Property Transactions - respondent submitted that the petitioner is at liberty to file all the objections before the adjudicating authority under Section 26 of the Act, 1988, as the time limit is to file objection before the Initiating Officer has already elapsed, which was 90 days from the date of notice - also the petitioner has not filed any reply to the impugned SCN - HELD THAT - Petition is dismissed holding that the provision of Section 26 of the Act, 1988 is complete code in itself providing ample opportunities to the assessee concerned, and apart from that there is remedy of appeal available to the petitioner. Looking to the fact that the petitioner has not filed his reply till date, liberty is granted to the petitioner to file his reply before the adjudicating authority and take all such plea of law and facts as may be available to the petitioner before the adjudicating authority, who shall decide the same in accordance with law. Petition dismissed.

Summary

Issues:
Challenge to order under Section 24(3) of the Prohibition of Benami Property Transactions Act, 1988 - Petitioner's failure to file reply to show cause notice - Availability of remedy under Section 26 of the Act - Comparison with previous judgment - Liberty granted to file reply before adjudicating authority.

Analysis:
The petitioner filed a petition under Article 227 of the Constitution challenging an order passed under Section 24(3) of the Prohibition of Benami Property Transactions Act, 1988. The respondent's counsel pointed out a similar case where the petition was dismissed by a Single Judge and confirmed by a Division Bench. The respondent's counsel emphasized that the petitioner can still file objections before the adjudicating authority under Section 26 of the Act, despite the time limit for filing objections before the Initiating Officer having elapsed. The petitioner, represented by their counsel, expressed concerns about not filing a reply to the show cause notice and the potential lack of opportunity to do so.

Upon hearing the arguments and examining the records, the court noted the previous judgment where the Single Judge held that Section 26 of the Act provides adequate opportunities for the concerned assessee and highlighted the availability of the remedy of appeal. The Division Bench confirmed this view, stating that the Adjudicating Authority is responsible for determining the Benami nature of the property under Section 26. The court acknowledged the similarity between the present petition and the previous case, leading to the dismissal of the current petition. However, considering the petitioner's failure to file a reply, the court granted liberty to file a reply before the adjudicating authority, allowing the petitioner to present all legal and factual arguments for consideration in accordance with the law.

In conclusion, the petition was dismissed with the mentioned liberty granted to the petitioner to file a reply before the adjudicating authority. No costs were awarded in this matter.