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TMI Blog2022 (10) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... es as the offences under Section 3(1) for the transactions entered into between 05.09.1988 (when the original Act received the presidential assent) and 25.10.2016 (when the Amendment Act of 2016 was notified), the law cannot retroactively invigorate a still-born criminal offence. Thereafter, it was categorically held that the Amendment Act of 2016 containing criminal provisions would be applicable only prospectively. Criminal provisions under the Benami Property Act were arbitrary and incapable of application, the law through the 2016 amendment could not retroactively apply for confiscation of those transactions entered into between 05.09.1988 to 25.10.2016 as the same would amount to punitive punishment. It has declared that the Ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016 i.e., much before the amendment of 2016 came into force. 4. The issue is covered by a recent decision of this Court dated 13.09.2022 in W.P.No.33191 of 2022 and batch wherein it has been held as follows: The issue before us is no longer res integra not only in view of the law laid down by this Court in Nexus Feeds Limited v. the Assistant Commissioner of Income Tax 2022(5) TMI 262, but in view of the law declared by the Supreme Court in Union of India v. Ganpati Dealcom Pvt. Ltd. 2022 SCC Online SC 1064 In Union of India v. Ganpati Dealcom Pvt. Ltd. (2 supra), which went to the Supreme Court from a decision of the Calcutta High Court, the question, which was considered by the Supreme Court was whether the Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt is called upon to answer whether the impugned provisions are attracted to those transactions that have taken place before 2016. After elaborate deliberation, Supreme Court came to the conclusion that Section 3 (criminal provision), Section 2(a) (definition clause) and Section 5 (confiscation proceedings) of the Benami Property Act are overly broad, disproportionately harsh and without adequate safeguards. Though such provisions were in a dormant condition, nonetheless, Supreme Court declared Sections 3 and 5 of the Benami Property Act as unconstitutional from inception. It was held as follows: From the above, Section 3 (criminal provision) read with Section 2(a) and Section 5 (confiscation proceedings) of the 1988 Act are overl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough the 2016 amendment could not retroactively apply for confiscation of those transactions entered into between 05.09.1988 to 25.10.2016 as the same would amount to punitive punishment. Finally, the Supreme Court concluded as under: In view of the above discussion, we hold as under: a) Section 3(2) of the unamended 1988 Act is declared as unconstitutional for being manifestly arbitrary. Accordingly, Section 3(2) of the 2016 Act is also unconstitutional as it is violative of Article 20(1) of the Constitution. b) In rem forfeiture provision under Section 5 of the unamended Act of 1988, prior to the 2016 Amendment Act, was unconstitutional for being manifestly arbitrary. c) The 2016 Amendment Act was not merely procedural ..... X X X X Extracts X X X X X X X X Extracts X X X X
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