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TMI Blog2018 (12) TMI 969X X X X Extracts X X X X X X X X Extracts X X X X ..... mi property - Held that:- In the present case, the property, i.e. the money involved in the transaction is mostly with the Income Tax Authorities. The Respondents have admitted that they have attached the value of the amount held as benami property which is impermissible under the Act. The said attachment would amount to double attachment which is an illegal usurpation of property. Such provisions of value thereof are not available in the Benami Act. Every transaction where cash is paid to person in lieu of a future promise cannot be a benami transaction as there is no lending of name. There can be no benami transaction if the future benefit is due from the person who is also the holder of property. Using a juxtaposition in the definition as per 2 (9) A, where the money is transferred to, or is held by, a lecturer, and the consideration for such money has been provided, or paid by, another person ; In the present case, all the appellants have never held the movable property or the same was registered in their respective banks. The attachment in the present appeals are not effected under the PMLA, 2002, though the members of Adjudicating Authority, PMLA, 2002 are also now dealing wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same having full details of 28 appeals would be reproduced in the later part of my order. The relevant facts taken from appeal no. 16/2018, are given below:- i) The appellant is employed as a Professor in St. Joseph‟s College of Engineering since 2006 and is drawing salary of ₹ 1,19,592 p.m. The said college is run by St. Joseph Institute of Science and Technology Trust (in short "Trust"), whose Chairman is Shri B. Babu Manoharan. The appellant is filing his Income tax returns regularly, who has a bank account No. 707050607 with Indian Bank, Chennai. ii) The Appellant on 17/11/2016 had received an amount of ₹ 50,000/- as salary advance from the Trust, through Dr. R. Sivakumar, Head of his Department. iii) On 17/11/2016, a search action u/s 132 of the Income Tax Act, 1961 was conducted on the Trust. iv) On 23/11/2016, upon the insistence of Income Tax Authorities, this entire amount of ₹ 50,000/- was returned back to the Trust through the same Head of Department by the appellant. v) During the course of search, sworn statement of the Appellant was recorded on 28/11/2016by the Income Tax Authorities. The Appellant in his statement deposed the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of both parties in details. The appellant has also filed the written-submissions. 9. It is not disputed by the learned counsel for the respondent that these 28 appeals who had allegedly received the advance salary, have returned back the entire amount to the management within 10 days. The detailed chart is also provided by the learned counsel of the appellant during the course of hearing of the appeal. The factual position in the chart is not denied by the counsel for the respondent.The same is reproduced here below:- S. N. Tribunal's Reference / Appellant's Name Employment details Salary Advance taken Salary advance returned back Property held Benami by the IO Bank Balance on 25.01.17 (Date of attachment) comprising past salary savings Post Since Year Salary PM(Rs.) Amount Rs. Date Amount Rs. Date 1. PB 16/2018 V. Rajnikanth Prof. 2006 1,19,592 50,000 17.11.06 50,000 23.11.06 50,000 28,820 2. PB 17/2018 G Jothipriya Asstt. Prof. 2015 50,760 1,00,000 15.11.06 1,00,000 25.11.16 1,00,000 192 3. PB 18/2018 K. Jawahar Rani Prof. 2001 1,25,467 75,000 17.11.16 75,000 24.11.16 75,000 1,807 4. PB 19/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . PB 54/2018 C Bhaskaran Prof. 1996 1,19,592 3,00,000 14.11.16 3,00,000 19.11.16 3,00,000 236 26. PB 57/2018 VN Nandhini Devi Asstt. Prof. 1995 1,34,984 1,00,000 17.11.16 1,00,000 19.11.16 1,00,000 85,758 27. PB 61/2018 R Sivakumar Prof. 2001 1,25,467 1,00,000 17.11.16 1,00,000 19.11.16 1,00,000 1,54,826 28. PB 64/2018 V Murali Acco-untsO ffi-cer 2003 23,699 2,00,000 14.11.16 2,00,000 22.11.16 2,00,000 45,415 Total 31,00,000 Total 31,00,000 Total 31,00,000 10. Actually, 49 appellants who are the employees, filed the appeals. The final orders in remaining appeals would be passed in due course. 11. The disbursed amounts can then be divided into 5 cases: a. In 28 cases ( Number PB 16 to 23, 25, 27, 29, 33 to 39, 45 to 50, 54, 57, 61 and 64), the entire salary advanced was returned back to the management of the trusts within 10 days. b. In 3 cases (Number PB 28, 40 and 51), part of the salary advance was consumed and part was returned back. c. In 7 cases (Number PB 30, 31, 53, 55, 59, 60 and 63), the entire salary advance was consumed. d. In 9 cases (Number PB 26, 32, 41 to 44, 52, 56 and 62), the salary advance was partly cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty and not any property in lieu of value of any property. In the present case, all the appellants have already returned the amount to the employers. They have not kept any amount. They were not aware about the consequences. The advance salary was taken due to bonafide manner. 19. In the present case, the property, i.e. the money involved in the transaction is mostly with the Income Tax Authorities. The Respondents have admitted that they have attached the value of the amount held as benami property which is impermissible under the Act. The said attachment would amount to double attachment which is an illegal usurpation of property. Such provisions of value thereof are not available in the Benami Act. 20. The learned counsel for the respondent has not denied the facts that the attachment of the amount was effected in the value of the such property and the said expression value of any such property is not mentioned in Section 2(u) of the Act as compared to Section 2(u) of the Prevention of Money Laundering Act, 2002. The provision of Section 2(u) of PMLA reads as under:- "2(u) „proceeds of crime‟ means any property derived or obtained, directly or indirectly, by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of a property where the person providing the consideration is not traceable or is fictitious; Explanation.-For the removal of doubts, it is hereby declared that benami transaction shall not include any transaction involving the allowing of possession of any property to be taken or retained in part performance of a contract referred to in section 53-A of the Transfer of Property Act, 1882 (4 of 1882), if, under any law for the time being in force,- (i) consideration for such property has been provided by the person to whom possession of property has been allowed but the person who has granted possession thereof continues to hold ownership of such property; (ii) stamp duty on such transaction or arrangement has been paid; and (iii) the contract has been registered. 2(10) "benamidar" means a person or a fictitious person, as the case may be, in whose name the benami property is transferred or held and includes a person who lends his name; 22. Thus, every cash transaction cannot be termed as a "benami" transaction. As per section 2(9) A of the Act, the following twin conditions need to be satisfied- 1) the property being held by a person who has not provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case was dealt under the Benami Law. Thus, none of the clauses of Section-2 would be applicable to the appellant. Section 24 was wrongly invoked in the facts of the appeals filed by 28 appellants. 29. Even the appellant in his reply dated09/02/2017to theProvisional Attachment orderreiterated the factual position as aforesaid and requested the IO to withdraw the ProvisionalAttachment order.The IO completely ignoring the replies given to him from time to time by the Appellant, passed the Attachment order dated13/3/2017 under section 24(4)(a)(i) of the Actcontinuing the provisional attachment of the property already made under sub-section (3) of section 24 of the Act which is packedwith factual inaccuracies. 30. Para 6 of IO‟s order reproduces a part of the Appellant‟s statement as under: "I have received the cash amount of ₹ 50,000/- from the Head of the Department on 17/11/2016 (Rs. 500 notes). I have returned this amount to the H.O.D. Dr. R. Sivakumar on 23/11/2016." However, in Para 4 ofthe IO‟s order, he writes as under: "In response to the notice, the Benamidar had filed a reply, stating that the sum received by cash from through Shri Babu Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal prosecutions have to be initiated against the parties. It is also settled law that once the provisions of Special Law are clearly worded, the question of importing any expression or omitting any part of the provision does not arise. The same have to be read as it is. The simple meaning is to be given. The question of any perception and personal notion does not arise. In the Benami Act, there is no specific provision which mandates that any movable or immovable property cannot be attached in value of such property unlike in Section 2(u) of PMLA, 2002, which is other Special Act. Any provision of PMLA, 2002 cannot be invoked in the Benami Act. The members of Adjudicating Authority have failed to appreciate the same law while passing the impugned order. In the present case, the amount was not held by the appellants, it was an advance salary received from the employer. It was an oral contract between the employee and employers. It is not the case of respondent, the appellants were involved in any link and nexus in the crime or they have hatched any conspiracy or arrangement between the employee and employers. 40. It is imperative that the investigating officer must form a reason ..... X X X X Extracts X X X X X X X X Extracts X X X X
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