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TMI Blog2022 (12) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon ble Supreme Court in the case of Ganpati Dealcom Pvt. Ltd. [ 2022 (8) TMI 1047 - SUPREME COURT ] such deliberations are not at all required, as the same would otherwise, cause prejudice to either of the parties. As in view of the undisputed fact that the transactions in question in these cases being of a period prior to 2016, the amendment of the Act made in the year 2016 would not be applicable and therefore, the impugned notices under Section 24 of the Act are not sustainable in law. Accordingly, the impugned notices are set aside and the writ petitions are allowed. - WP(C)/4385/2022 WP(C)/4390/2022 WP(C)/4387/2022 - - - Dated:- 16-12-2022 - HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI FOR THE PETITIONER : MS. A NEOG FOR THE RESPONDENT : ASSTT. S. G. I. APPEARING FOR THE DEPUTY COMMISSIONER OF INCOME TAX (BP) AND ORS. JUDGMENT A common challenge has been made in these three writ petitions and accordingly, the same are being disposed of by this common judgment. 2. The petitioners have assailed the orders issued under Section 24 (4) (6) (i) of the Prohibition of Benami Property Transactions Act, 1988 (hereinafter referred to as the Act) and the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported statement which were extracted by coercion. In the meantime, time was sought for by the petitioners to reply to the show cause notice. Ultimately, the petitioners had to file WP(C)/3246/2022 which was disposed of by this Court vide order dated 23.05.2022 allowing the petitioners to submit their replies to the show cause notice dated 30.03.2022 within a period of 10 days and it was further clarified not to give effect the attachment order in view of the clear undertaking given by the petitioners that the process will start afresh from the stage of procedure laid down in Section 24 (1) of the Act. Subsequently, the petitioners submitted their replies by contending that the impugned action was without jurisdiction and therefore, null and void. Finally, the authorities vide the impugned order dated 15.06.2022 had passed an order of attachment of the properties and assets till the passing of the order by the Adjudicating Authority under Section 26 (3) of the Act. WP(C)/4387/2022 5. There are two petitioners in this case. The petitioner no. 1 is one Shri Sailen Das against whom, the allegation is of being a benami holder and the petitioner no. 2 is one Shri Bhagya Kalit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted on the same and those were given on lease. On 31.01.2022, the Deputy Commissioner of Income Tax (BP), Guwahati had issued summons to the petitioner no. 1 directing him to attend and submit certain information in connection with proceedings under the Act. Thereafter notices were issued to the petitioner no. 1 to appear before the authorities for recording of statements in connection with a proceeding under Section 19 of the Act and ultimately, such statements were recorded before the respondent authorities on 25.03.2022. However, on 30.03.2022 show cause notice under Section 24 (1) of the Act was issued followed by the order of attachment dated 31.03.2022 under Section 24 (3). Thereafter various communications were made between the parties whereby the petitioners had requested for providing copies of the purported statement which were extracted by coercion. In the meantime, time was sought for by the petitioners to reply to the show cause notice. Ultimately, the petitioners had to file WP(C)/3245/2022 which was disposed of by this Court vide order dated 23.05.2022 allowing the petitioners to submit their replies to the show cause notice dated 30.03.2022 within a period of 10 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating Authority) issued a notice to the respondent-company invoking Section 24(1) of the 2016 Act to show cause as to why the aforesaid property should not be considered as Benami property and the respondent company as Benamidar within the meaning of Section 2(8) of the 2016 Act. On 06.09.2017, the respondent-company replied to the aforesaid show-cause notice denying that the scheduled property is a Benami property. 8. The Hon ble Supreme Court, after discussing all the decided cases and the provisions of law, has settled the law, the relevant paragraphs of which are extracted hereinbelow: 61. Third, it is fairly admitted by the learned ASG, Mr. Vikramjit Banerjee appearing for the Union of India, that the criminal provision was never utilized as there was a significant hiatus in enabling the functioning of such a provision. .. .. 63. The criminal provision under Section 3(1) of the 1988 Act has serious lacunae which could not have been cured by judicial forums, even through some form of harmonious interpretation. A conclusion contrary to the above would make the aforesaid law suspect to being overly oppressive, fanciful and manifestly arbitrary, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... full ownership over the property, without allowing the real owner to interfere with the rights of benamidar. If that be the case, then without effective any enforcement proceedings for a long span of time, the rights that have crystallized since 1988, would be in jeopardy. Such implied intrusion into the right to property cannot be permitted to operate retroactively, as that would be unduly harsh and arbitrary. . Conclusion 130. In view of the above discussion, we hold as under: e) Concerned authorities cannot initiate or continue criminal prosecution or confiscation proceedings for transactions entered into prior to the coming into force of the 2016 Act, viz., 25.10.2016. As a consequence of the above declaration, all such prosecutions or confiscation proceedings shall stand quashed. f) As this Court is not concerned with the constitutionality of such independent forfeiture proceedings contemplated under the 2016 Amendment Act on the other grounds, the aforesaid questions are left open to be adjudicated in appropriate proceedings. 9. The learned Senior Counsel has submitted that in the instant case, 7 numbers of sale deeds are invol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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