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TMI Blog2019 (4) TMI 2086X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 of the Constitution of India, we are of the view that all contentions including that of powers conferred upon Adjudicating Authority under Section 26(1) (3) and whether such powers conferred upon Adjudicating Authority vis-a-vis jurisdiction, all can be raised before Appellate Tribunal exercising vide appellate powers under Section 46 of the Act 1988. Even after the order is passed by the Appellate Tribunal further appeal is provided before the High Court under Section 49 of the Act 1988, we are of the considered opinion in view of decision of the Apex Court in the case of Thansingh Nathmal Ors. [ 1964 (2) TMI 79 - SUPREME COURT] that High Court is not to interfere with the order passed by the Adjudicating or Competent Authority when inbuilt efficacious alternative remedies are available, we find that oral order passed by learned Single Judge is accordingly deserves to be stayed till further order till final disposal of the petition. X X X X Extracts X X X X X X X X Extracts X X X X ..... when implemented by the authorities extraordinary jurisdiction of the High Court is taken recourse to thwart proceedings. All these appeals arising out of order passed by the learned Single Judge staying order of Adjudicating Authority passed under Section 26(3) of the Act 1988, are classic cases of such frequent invocation of extraordinary jurisdiction under Article 226 of the Constitution of India, even though two, inbuilt efficacious alternative remedies are provided by the Act, 1988. That, usual contentions are raised challenging such order passed by Adjudicating Authorities either without jurisdiction, in excess of jurisdiction, lack of jurisdiction and finally in violation of principles of natural justice, though notices are issued and hearing is given to affected persons before passing the final order and all such contentions can be raised before Appellate Tribunal so provided under Section 46 namely, Appeals to Appellate Tribunal and thereafter appeal to also provided under Section 49 Appeal to High Court. 2. Mr. Devang Vyas, learned Assistant Solicitor General for the appellants would rely on paragraph 19.5 of the order passed by the Adjudicating Officer on 30.10.2018 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per law and to send requisite reference (s) within time as per law for adjudication. In the meantime, PAO is confirmed holding the cash deposited in Bank Account No.916020056388231 of Shri Yogesh Baburao More Prop M./s. Raj Enterprise in Axis Bank as Benami Asset, Shri Yogesh Baurao More Prop M/s. Raj Enterprise, as Benamidar and M/s. Parker Bullion Pvt. Ltd., Shri Suresh Umar Soni Prop M/s. M.S.Jewellers, Shri Diptesh Soni Prop M/s. Gayatri Jewellers, Shri Bhagwanbhai Patel Prp M/s. Shreeji Enterprise, Shri Ajesh Patel Prop M/s. Patidar Bullion as the Beneficial Owner of the Benami Asset with Shri Sanjay Manubhai Soni (old Beneficiary owner) as the Abbetor of the entire Benami transaction. Pending attachment of the entire property that was the subject matter of the benami transaction, the provisional attachment of the properties being the bank balances, policies immovable properties etc made by the IO holding D-2 ie Mr Sanjay Manubhai Soni as beneficial owner lying in different bank accounts in various names shall continue till the finalization of proceedings under the Act. A perusal of the bank accounts through which benami transactions have been made contain a large nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner as defined in clauses (9A) and (19A) respectively of Section 2 of the Income-tax Act, 1961 (43 of 1961); 2 (24) "person" shall include- (i) an individual; (ii) a Hindu undivided family; (iii) a company; (iv) a firm; (v) an association of persons or a body of individuals, whether incorporated or not; (vi) every artificial juridical person, not falling under subclauses (i) to (v); 2 (26) "property" means assets of any kind, whether movable or immovable, tangible or intangible, corporeal or incorporeal and includes any right or interest or legal documents or instruments evidencing title to or interest in the property and where the property is capable of conversion into some other form, then the property in the converted form and also includes the proceeds from the property; 2 (29) "transfer" includes sale, purchase or any other form of transfer of right, title, possession or lien; Chapter IV-Attachment, Adjudication and Confiscation which provides notice and attachment of property involved of Benami transaction as provided under Section 24, Section 25 prescribing manner of service of notice and Section 26 Adjudication of benami property. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses an order provisionally attaching the property under sub-clause (i) of clause (b) of that sub-section, he shall, within fifteen days from the date of the attachment, draw up a statement of the case and refer it to the Adjudicating Authority. 25. Manner of service of notice .- (1) A notice under subsection (1) of section 24 may be served on the person named therein either by post or as if it were a summons issued by a Court under the Code of Civil Procedure, 1908 (5 of 1908). (2) Any notice referred to in sub-section (1) may be addressed - (i) in case of an individual, to such individual; (ii) in the case of a firm, to the managing partner or the manager of the firm; (iii) in the case of a Hindu undivided family, to Karta or any member of such family; (iv) in the case of a company, to the principal officer thereof; (v) in the case of any other association or body of individuals, to the principal officer or any member thereof; (vi) in the case of any other person (not being an individual), to the person who manages or controls his affairs. 26. Adjudication of benami property .- (1) On receipt of a reference under sub-section (5) of section 24, the Adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty and the property shall be deemed to be a property referred to it on the date of receipt of the reference under sub-section (5) of section 24. (6) The Adjudicating Authority may, at any stage of the proceedings, either on the application of any party, or suo motu, strike out the name of any party improperly joined or add the name of any person whose presence before the Adjudicating Authority may be necessary to enable him to adjudicate upon and settle all the questions involved in the reference. (7) No order under sub-section (3) shall be passed after the expiry of one year from the end of the month in which the reference under sub-section (5) of section 24 was received. (8) The benamidar or any other person who claims to be the owner of the property may either appear in person or take the assistance of an authorised representative of his choice to present his case. Explanation.-For the purposes of sub-section (8), authorised representative means a person authorised in writing, being- (i) a person related to the benamidar or such other person in any manner, or a person regularly employed by the benamidar or such other person as the case may be; or (ii) any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . - (1) Any party aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within a period of sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law arising out of such order. (2) The High Court may entertain any appeal after the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the period specified in sub-section (1). (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. (5) Nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. 19 (6) The High Court shall decide the question of law so formulated and deliver the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Initiating Officer or before this Authority the respective defendants have been able to prove as to in whose hands the benami property was taxed under the relevant provisions of the Incometax Act, 1961. We are of the considered opinion that the accumulated unaccounted wealth was channelized through these bank accounts post-demonetization in the disguise of business transactions. Conclusion : We have carefully considered the replies filed by the Defendants including the new beneficial owner in response to the notice issued under Section 26(1) of the Act. We have also considered the Rejoinders filed by and on behalf of the IO. We have also given due opportunity of hearing to the IO, the Defendants and ascertained the facts and evidence as deemed fit. We have also taken into account all the relevant materials. Hence for the reasons aforesaid we come to the conclusion that the subject property of the present Reference is a benami property. The Provisional Attachment order dated 26.9.2017 issued under Section 24(4)(b)(i) of the Act by IO is confirmed hereby. The reference no.134/2017 is allowed." 6. It is submitted that in a case like this, where the Adjudicating Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are based on arguments canvassed by learned senior counsel appearing for the private respondents in other appeals. 8. Having heard learned advocates for the parties in the context of challenging to the order passed by learned Single Judge in exercise of extraordinary jurisdiction under Article 226 and 227 of the Constitution of India, we are of the view that all contentions including that of powers conferred upon Adjudicating Authority under Section 26(1) (3) and whether such powers conferred upon Adjudicating Authority vis-a-vis jurisdiction, all can be raised before Appellate Tribunal exercising vide appellate powers under Section 46 of the Act 1988. Even after the order is passed by the Appellate Tribunal further appeal is provided before the High Court under Section 49 of the Act 1988, we are of the considered opinion in view of decision of the Apex Court in the case of Thansingh Nathmal & Ors. vs. A. Mazid reported in AIR 1964 SC 1419 and 1964 (6) SCR 654 that High Court is not to interfere with the order passed by the Adjudicating or Competent Authority when inbuilt efficacious alternative remedies are available, we find that oral order passed by learned Single Judge is acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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