2022 (9) TMI 1134 - HC - Benami Property

Benami transaction - Notice and attachment of property involved in benami transaction - Scope of interim order of this court - allegation of violation of the principles of natural justice - HELD THAT - It is pertinent to mention herein that applicability of the principles of natural justice and fair play, depends on the facts and circumstances of each case and is subjected to statutory provisions. After taking note of the entire aspects, the learned Judge, while disposing WP directed the respondent to furnish the certified copy of the sworn statement recorded from the appellant during the course of survey proceedings, to him, within a period of one week. While doing so, the learned Judge has rightly rejected the relief sought by the appellant seeking any other sworn statements recorded during the search on 09.03.2017, as the same is absolutely vague, besides the said proceedings were not conducted by the respondent viz., Deputy Commissioner of Income Tax (Benami Prohibition), but by the Investigation Wing Therefore, it cannot be said that there is violative of principles of natural justice, as alleged by the appellant. Allegation levelled by the appellant that the orders under section 24(4) were passed in total disrespect to the interim order of this court - During the course of argument, respondent drew the attention of this court to the documents enclosed in the additional typed set of papers which disclose that the Deputy Commissioner of Income Tax (Benami Prohibition) has placed the draft of section 24(4) orders before the Approving Authority for approval and after obtaining approval from the approving authority, passed the orders under section 24(4) of the PBPT Act. In the mean while, the appellant filed WP and obtained an order of interim stay which was communicated to the respondent by the learned senior standing counsel only on 25.05.2018, according to the counter affidavit filed by them. Such being the factual matrix, this court finds merit and acceptance in the contention made on the side of the respondent that the initiating officer came to aware of the order of interim stay granted by this court only after passing the orders under section 24(4) of the PBPT Act and hence, there is no deliberate or wilful disobedience of the order of this court. It is important to note that the proceedings under section 24 only require a recording of prima facie opinion as to the benami nature of the transaction and the respondent is required to furnish the documents, particulars or evidence and provide an opportunity of being heard to the appellants only at the stage of adjudication proceedings. Accordingly, the first respondent, after making enquiry and calling for reports or evidence and taking into account all the relevant materials, has, with the prior approval of the Approving Authority, passed the orders dated 23.05.2018 under section 24(4), continuing the provisional attachment of the properties till the passing of the order by the Adjudicating Authority under section 26(3), which are purely provisional in nature. While passing such orders as an interim measure to protect the interest of Revenue, there is no hastiness or procedural violation on the part of the respondent, as alleged by the appellant. Having noted the same in proper perspective, the learned Judge has rightly dismissed the writ petitions filed by the appellant challenging the said orders passed by the respondent under section 24(4) of the PBPT Act, however, granting liberty to the appellant to raise all the contentions before the adjudicating authority. Thus, the overall appreciation of the factual matrix as well as the legal principles stated above, would compel this court to come to an irresistible conclusion that the appellant has not made out any ground to interfere with the order of the learned Judge as well as the orders impugned in the writ petitions, at this stage. Accordingly, all the appeals stand dismissed.

Issues Involved:
1. Legality of the show cause notices issued under Section 24(1) of the Prohibition of Benami Property Transactions Act, 1988 (PBPT Act).
2. Whether the appellant was provided with the complete set of documents referred to in the show cause notices.
3. Validity of the provisional attachment orders passed under Section 24(4) of the PBPT Act.
4. Alleged violation of principles of natural justice.
5. Alleged contempt of the interim stay order dated 23.05.2018.

Issue-wise Detailed Analysis:

1. Legality of the Show Cause Notices:
The appellant contended that the show cause notices dated 26.02.2018, alleging him as a beneficial owner of assets acquired by M/s. Bell Tower Enterprises LLP, were illegal and bad in law. The respondent issued these notices based on materials collected during a search operation and subsequent statements recorded from various directors. The court found that the show cause notices were issued as per Section 24(1) of the PBPT Act, which allows the Initiating Officer to issue such notices if there is reason to believe that a person is a benamidar of a property.

2. Provision of Complete Set of Documents:
The appellant argued that he was not furnished with the complete set of documents referred to in the show cause notices, thus depriving him of the opportunity to submit effective written submissions. The respondent countered that all relied-upon documents were provided except for the appellant's sworn statement, which was not relied upon in the proceedings. The court directed the respondent to furnish the certified copy of the appellant's sworn statement recorded during the survey proceedings, within a week, acknowledging the need to meet the principles of natural justice.

3. Validity of Provisional Attachment Orders:
The appellant challenged the provisional attachment orders dated 23.05.2018, passed under Section 24(4) of the PBPT Act, arguing that they were issued despite an interim stay order. The respondent clarified that the draft orders were approved on 22.05.2018, and the final orders were passed on 23.05.2018, before the interim stay order was communicated on 25.05.2018. The court found no deliberate or willful disobedience of the interim stay order and upheld the provisional attachment orders, emphasizing their provisional nature.

4. Alleged Violation of Principles of Natural Justice:
The appellant claimed that the principles of natural justice were violated as he was not provided with all the documents. The court held that the principles of natural justice are flexible and depend on the facts and circumstances of each case. It concluded that there was no real prejudice caused to the appellant by the procedure followed, as he was provided with the necessary documents to make his case before the adjudicating authority.

5. Alleged Contempt of Interim Stay Order:
The appellant argued that the respondent's actions were in contempt of the interim stay order dated 23.05.2018. The court noted that the orders under Section 24(4) were passed on the same day as the interim stay order but before the stay order was communicated to the respondent. Therefore, there was no deliberate or willful disobedience of the court's order.

Conclusion:
The court dismissed the appeals, upholding the legality of the show cause notices and the provisional attachment orders. It directed the respondent to provide the appellant with the certified copy of his sworn statement and allowed the appellant to raise all contentions before the adjudicating authority. The court found no violation of principles of natural justice or contempt of the interim stay order.

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