2018 (9) TMI 153 - HC - Benami Property

Benami Property - Jurisdiction - power of IO to pass orders of Provisional attachment - Section 24(3) of the Prohibition of Benami Property Transactions Act, 1988 - petitioners contend that the Adjudicating Authority had already passed an order under Section 26 (3) of the Act holding that the properties (amounts) in question are not benami properties and, therefore, it is not open for the IO to once again pass orders attaching the same - whether the IO was barred from issuing a fresh show cause notice under Section 24(1) of the Act? Held that - A plain reading of sub-section (3) of Section 24 of the Act indicates that the IO may issue an Order of Provisional Attachment if he is of the opinion that the person in possession of the property held benami would alienate such property during the period specified in the notice; that is, the time provided by the IO for the noticee to show cause as to why such property should not be treated as a benami property - It is, at once, clear that an order under Section 24(3) of the Act is only for the purposes of provisionally attaching the property till the IO completes his inquiry pursuant to the show cause notice issued under Section 24(1) of the Act. It is also relevant to note that an Order of Provisional Attachment under Section 24(3) of the Act cannot exceed period of ninety days from the date of issuance of the show cause notice under Section 24(1) of the Act. It is apparent that the Adjudicating Authority had set aside the Provisional Attachment Orders passed under Section 24(3) and 24(4)(a)(i) of the Act only on the ground that the IO had not followed the procedure in terms of the scheme of Section 24 of the Act. The Adjudicating Authority had not examined the issue whether the properties (amounts) in question were benami properties in terms of Section 2(8) of the Act - this Court finds no reason which would preclude the IO from issuing a fresh show cause notice and curing the procedural defect as observed by the Adjudicating Authority. The principles analogous to res judicata do not apply, as the Adjudicating Authority has not taken any decision on the merits of the matter; that is, he has not decided whether the sums deposited in the bank accounts of the petitioners were benami properties of Sh Nitin Jain. It is well settled that if an order is set aside on account of violation of the principles of natural justice or on account of any procedural defect in the decision making process, the concerned authority is not precluded from re-initiating the proceedings after curing the procedural defects. This is, of course, subject to the condition that the fresh proceedings are (a) within the jurisdiction of the authority; and (b) are not barred by limitation - In the present case, there is no dispute that the IO has the jurisdiction to issue a show notice under Section 24(1) of the Act. There is also no dispute that such notice is not barred by limitation - this Court is unable to accept that the IO (respondent no.3) was in any manner precluded from issuing the show cause notice. Petition dismissed.

Summary

Issues Involved:
1. Jurisdiction of the Initiating Officer (IO) to pass provisional attachment orders.
2. Validity of re-issuing show cause notices after previous orders were set aside.
3. Procedural compliance under Section 24 of the Prohibition of Benami Property Transactions Act, 1988.
4. Interpretation and application of Section 26(3) of the Act by the Adjudicating Authority.

Issue-Wise Detailed Analysis:

1. Jurisdiction of the Initiating Officer (IO) to pass provisional attachment orders:
The petitioners challenged the jurisdiction of the IO to pass provisional attachment orders under Section 24(3) of the Prohibition of Benami Property Transactions Act, 1988. They argued that similar orders had been previously set aside by the Adjudicating Authority, which held that the properties in question were not benami properties. The petitioners contended that it was not permissible for the IO to issue a fresh show cause notice and pass another provisional attachment order for the same properties.

2. Validity of re-issuing show cause notices after previous orders were set aside:
The petitioners argued that the principles analogous to res judicata should apply, preventing the IO from re-issuing show cause notices for the same properties. They relied on the Calcutta High Court decision in Jasoda Jiban Saha (P.) Ltd. v. S.K. Chatterjee & Anr.: AIR 1961 Cal 195 to support their contention. However, the court found no reason to preclude the IO from issuing a fresh show cause notice to cure the procedural defects previously observed by the Adjudicating Authority. The court noted that the principles of res judicata did not apply as the Adjudicating Authority had not made a decision on the merits regarding whether the sums deposited were benami properties.

3. Procedural compliance under Section 24 of the Prohibition of Benami Property Transactions Act, 1988:
The court examined the procedural requirements under Section 24 of the Act, which necessitate the IO to have "reason to believe" that a person is a benamidar and to record such reasons in writing before issuing a show cause notice. The court noted that the IO had issued the provisional attachment orders under Section 24(3) of the Act before issuing the show cause notices under Section 24(1). The Adjudicating Authority had set aside these orders due to non-compliance with the procedural requirements of Section 24, specifically the failure to issue a show cause notice before the provisional attachment order.

4. Interpretation and application of Section 26(3) of the Act by the Adjudicating Authority:
The court discussed the Adjudicating Authority's role under Section 26(3) of the Act, which requires the Authority to either hold the property not to be benami and revoke the attachment order or hold the property to be benami and confirm the attachment order. The Adjudicating Authority had set aside the provisional attachment orders due to procedural defects without examining whether the properties were benami. The court noted that the Adjudicating Authority did not have the power to remand the matter to the IO and had to make a determination based on the merits.

The court concluded that the IO was not barred from issuing a fresh show cause notice under Section 24(1) of the Act to cure the procedural defects. The court cited precedents, including Thimmasamudram Tobacco Co. vs Assistant Collector of Central Excise, Nellore: AIR 1961 AP 324, and Supreme Court decisions in Superintendent (Tech.I) Central Excise, IDD Jabalpur and Ors. v Pratap Rai: 1978 (3) SCC 113 and Vipulbhai Mansingbhai Chaudhary v. State of Gujarat and Anr.: (2017) 13 SCC 51, which support the view that an authority can re-initiate proceedings after curing procedural defects.

Conclusion:
The court dismissed the petitions, holding that the IO was within his jurisdiction to issue fresh show cause notices after curing the procedural defects identified by the Adjudicating Authority. The court emphasized that the Adjudicating Authority had not made a determination on the merits regarding whether the properties were benami, and thus, the IO was not precluded from re-initiating the proceedings. All pending applications were disposed of.