9911796707
TMI Blog2024 (8) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... ties though the detailed facts in that regard were submitted and has been narrated in this order also, thus, a perverse finding has been recorded going against the record and the material referred earlier. The finding has been recorded even going against the definition of benami transaction given under section 2(9)(A) despite satisfaction of both the limbs of the definition. It was a case where the property was transferred or held by a person of which consideration was provided or paid by another person. It is the case where wife and sons were not having sufficient means to acquire properties of the value given by the appellant and also that acquisition of property was for immediate or future benefit of the persons who provided consideration i.e. the father. It was found that the appellant Shobharam Dhariwal while in service could earn an amount of Rs. 63,95,140/- towards salary and if no part of it has been spent on the livelihood, he could not have acquired the property in name of his wife and son worth of Rs. 4 crore, 58 lacs and odd. The property was acquired for a value of a sum more than the earning. It was out of the illicit income of Shobharam Dhariwal while in service of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able-B(1) left by Adjudicating Authority. - MUNISHWAR NATH BHANDARI AND SHRI BALESH KUMAR For the Appellant : Mr. Kanhaiya Singhal, S.P.P and Ms. Trisha Mittal, Advocate For the Respondents : Shri Ashwani Taneja, Shri Ashish Tandon, Shri Ayush Saini and Shri Harnoor Virdi, Advocates This appeal has been preferred under section 46(1) of Prohibition of Benami Property Transactions Act, 1988 (in short the Act of 1988) to challenge the order dated 12.05.2023 passed by the Adjudicating Authority u/s 26(3) of the Act of 1988. It is a case, where, a show cause notice was issued to the benamidaar u/s 24(1) of the Act of 1988 followed by attachment of property u/s 24(3) of Act of 1988. In the proceedings, Shri Domendra Dhariwal and other appellants were identified as benamidaar whereas Shri Shobaram Dhariwal was identified as beneficial owner. The brief facts given rise to the case are as under: a) One Shri Shobram Dhariwal found to have acquired various immovable properties illegally in the name of his two sons Shri Domendra Dhariwal and Shri Somendra Dhariwal and his wife Smt. Kapuri Devi Dhariwal while working in the office of Agriculture Department, Chattisgarh. b) During the course o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed his income from known sources in education of his children, deposit in bank accounts and investments in the immovable properties. He was not having sufficient income to make investment for a sum of Rs. 4,58,04,376/-. The notice was accordingly issued to the benamidaar and beneficial owner in reference to acquisition of property to disclose the sources. The Ld. Counsel for the Appellant argued that in case of Domendra Dhariwal in appeal No. 2630/23, 29 immovable properties were attached apart from the Fixed Deposits and amount lying in the bank account out of which few bank accounts were opened before 25.10.2016 apart from two saving bank accounts. The Adjudicating Authority gave an opportunity for hearing to both the parties and passed a detailed impugned order where it refused to confirm the attachment of 20 properties which were at Sr. no. 1 to 19 and serial no. 29 acquired prior to 25.10.2016 and three F.D. and two bank accounts at serial no. 1 to 5 given in table A-(I)- (Moveable Property i.e. bank account deposits created in the name of Shri Domendra Dhariwal) S. No. Bank Name Account Number Type of A/c Balance (Rs.) As on 1. State Bank of India 53050972020 Savings 07.01.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of A/c Balance (Rs.) As on 1. Sahakari Bank 678102020814 Savings 20.01.2022 5,28,745/- 2. Sahakari Bank 350 (old) 678102106419 (New) FD 20.01.2022 2,20,046/- 3. Sahakari Bank 351 (old) 678102087224 (New) FD 20.01.2022 4,66,026/- Two F.Ds. were opened before 25.10.2016 and pre-deposits in the savings bank account were also prior to the aforesaid date and only interest accrued after the said date. The Adjudicating Authority refused to confirm properties at Sr. No. 1 to 13 and 17 in reference to the judgement in the case of M/s Ganpati Dealcom Pvt. Ltd. (Supra) and properties No. 14 to 16 and 18 and 19 in reference to the facts of the case holding it to be not a Benami Transaction. It is made clear that the impugned order at para 5.2 records that properties mentioned at Sr. No. 1 to 13 and 17 were acquired prior to 25.10.2016, however, the factual position would reveal that properties mentioned at Sr. No. 1 to 14 were acquired prior to 25.10.2016 as given in Table-B. It is thus, stated that this Tribunal would consider the factual position as revealed from above to be correct to hold that the properties mentioned therein at Sr. 1 to 14 as given in Table-B have been acquired prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was paid in cash in the year 2016 whereas Sh. Domendra Dhariwal i.e. Benamidar/D-1 was involved in a government job but his salary was meager as per his income profile discussed in the PAO 24(4) dated 28.04.22 and was lying in the bank account during the period, which clearly shows that Sh. Domendra Dhariwal didn't have the capacity to make such huge investment in these properties which makes it evident that Shri Domendra Dhariwal is Benamidar as per the provisions of section 2(10) of the PBPT Act, 1988. ii. Even during the period, no cash withdrawals from any of the bank accounts of Sh. Domendra Dhariwal could be observed to justify the fact i.e. payment made to purchase this property, if any, is done by Benamidar-Shri Domendra Dhariwal. iii. Shri Domendra Dhariwal also stated in his statement that he can't explain the difference between purchase consideration and Circle rate. iv. The payment of the subject property was done by Shri Shobharam Dhariwal in cash. This fact is evident from the statement of the sellers of the subject properties who have received the cash. For example-Shri Bharat Singh, the seller of immovable property has admitted in his statement recorded on o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk account during the period. ii. Further, no cash withdrawals from any of the bank accounts of Sh. Domendra Dhariwal could be observed during that period, which clearly shows that Sh. Domendra Dhariwal didn't have the capacity to make such huge investment in these properties. Due to this very fact, it is evident that Shri Domendra Dhariwal is Benamidar as per the provisions of section 2(10) of the PBPT Act, 1988. iii. Shri Domendra Dhariwal stated in his statement that he can't explain the difference between purchase consideration and Circle rate. iv. Seller of this property-Shri Dinesh Singh has stated in his statement recorded on oath u/s 19 of the PBPT Act, 1988 that Shri Shobharam Dhariwal purchased the said immovable property and paid the amount of Rs. 4,50,000 in the year 2017 and Rs. 35,00,000/- in the year 2019 in cash. The sellers also admitted that Shri Shobharam Dhariwal purchased the said immovable property and he got the registry of this property executed in the name of his son. He also admitted that Shri Shobharam Dhariwal pays the amount to him for doing agricultural activities on this land. This statement and the facts stated therein remains valid in the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to make such huge investment in these properties. Due to this very fact, it is evident that Shri Domendra Dhariwal is Benamidar as per the provisions of section 2(10) of the PBPT Act, 1988. v. As per the enquiries from one of the seller i.e. Sh. Rajveer Singh, it is clearly stated by him that for the purchase of the said immovable property, Sh. Shobharam Dhariwal i.e. Beneficial Owner made payment in cash of Rs. 28,00,000/- as purchase consideration and Rs. 4,57,600/- as registry expenses and got the registry executed in the name of his son. It was the Beneficial Owner who had paid Rs. 28,00,000/- as purchase consideration and Rs. 4,57,600/- as registry expenses. This statement and the facts stated therein remains valid in the absence of any contradictory finding before the Ld. Adjudicating Authority. vi. Ld. AA has erred in not considering the fact that as per the financial profile of the Beneficial Owner and the Benamidar, both have already exhausted their savings in various expenses and bank balances, hence, they are not left with any known source of income/savings in their hands. Therefore, the subject property is nothing but a 'benami property' purchased by Shri Shob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Benamidar, both have already exhausted their savings in various expenses and bank balances, hence, they are not left with any known source of income/savings in their hands. Therefore, the subject property is nothing but a 'benami property' purchased by Shri Shobharam Dhariwal from his unknown sources of income. iv. Thus, it is evident from the above statement of the seller, that he was paid much higher amount while the registries were made on low purchase consideration in the name of the benamidar and it is also clear from the above discussion, that Beneficial Owner- Shri Shobharam was directly involved in purchase of above subject property in the name of Benamidar- Shri Domendra Dhariwal and has paid the consideration from his unknown sources of income to the sellers of the subject property (Detailed discussion is done in PAO 24(4) dated 28.04.2022) and he also manages these properties. Thus, it is evident that Shri Domendra Dhariwal is Benamidaar as per the provisions of section 2(10) of the PBPT Act, 1988 and Shri Shobharam Dhariwal is main beneficial owner as per the provisions of section 2(12) of the PBPT Act, 1988. Therefore, these transactions are clearly covere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above discussion, that Beneficial Owner Shri Shobharam was directly involved in purchase of above subject property in the name of Benamidar- Shri Domendra Dhariwal and has paid the consideration from his unknown sources of income to the sellers of the subject property (Detailed discussion is done in PAO 24(4) dated 28.04.2022) and he also manages these properties. Thus, Shri Shobharam Dhariwal is the beneficial owner as per the provisions of section 2(12) of the PBPT Act, 1988. Therefore, these transactions are clearly covered u/s sec 2(9)(A) of the PBPT Act, 1988. f) Property No. 26 (Khasra No. 1207): i. That for the purchase of said property, total Rs. 8,00,000/- were paid in cash in the year 2019, whereas Sh. Domendra Dhariwal i.e. Benamidar/D-1 was involved in a government job but his salary was meagre and was lying in the bank account during the period, which clearly shows that Sh. Domendra Dhariwal didn't have the capacity to make such huge investment in this property. Hence, it is evident that Shri Domendra Dhariwal is Benamidar as per the provisions of section 2(10) of the PBPT Act, 1988. ii. Ld. AA has erred in not appreciating the fact that Sh. Domendra Dhariwal also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2019, whereas Sh. Domendra Dhariwal i.e. Benamidar/D-1 was although involved in a government job but his salary was meager and was lying in the bank account during the period, which clearly shows that Sh. Domendra Dhariwal didn't have the capacity to make such huge investment in these properties. ii. Further, as per the statement of Benamidar wherein, he stated that the payment for this property was made at the rate of circle rate and value in the registry had been shown less. x. Ld. AA has erred in not considering the fact that as per the statement of the seller Sh. Dinesh Kumar, it is stated by him that it was the Beneficial Owner who had purchased the said property and got the registry of this immovable property executed in the name of his son. The Beneficial Owner had paid Rs. 4,50,000/- in the year 2017 and Rs. 35,00,000/- in the year 2019 in cash (This sum includes payment of all properties sold by Shri Dinesh Kumar). This statement and the facts stated therein remains valid in the absence of any contradictory finding before the Ld. Adjudicating Authority. Thus, we can say that the Beneficial Owner Sh. Shobharam Dhariwal was directly involved in the purchase of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneficial Owner Sh. Shobharam Dhariwal was directly involved in the purchase of the subject property. This statement and the facts stated therein remains valid in the absence of any contradictory finding before the Ld. Adjudicating Authority.It is also pertinent to mention that as per the financial profile of the Beneficial Owner and the Benamidar, both have already exhausted their savings in various expenses and bank balances, hence, they are not left with any known source of income/savings in their hands. Therefore, the subject property is nothing but a 'benami property' purchased by Shri Shobharam Dhariwal from his unknown sources of income. iv. Thus, it is evident from the above statement of the seller, that he was paid much higher amount while the registries were made on low purchase consideration in the name of the benamidar and it is also clear from the above discussion, that Beneficial Owner- Shri Shobharam was directly involved in purchase of above subject property in the name of Benamidar- Shri Domendra Dhariwal and has paid the consideration from his unknown sources of income to the sellers of the subject property (Detailed discussion is done in PAO 24(4) dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served to justify the fact i.e. payment made to purchase this property, if any, is done by Benamidar-Shri Somendra Dhariwal. iii. Shri Somendra Dhariwal had stated in his statement that he can't explain the difference between purchase consideration and Circle rate. iv. The Ld. AA erred in not considering the fact that the purchase consideration of the subject property was done by Shri Shobharam Dhariwal in cash. This fact is evident from the statement of the sellers of the subject properties who have received the cash. For example- Sh. Krushna Jatav and Sh. Ajmer Singh who did all the dealings in respect of sale of this property, the seller of immovable property have stated that Sh. Shobharam Dhariwal/Beneficial Owner purchased the said property and he got registry of this property executed in the name of his son i.e. Sh. Somendra Dhariwal/Benamidar. The amount of around Rs. 50,00,000/- in cash was paid to them by Sh. Shobharam Dhariwal/Beneficial Owner. They further stated that Shri ShobharamDharival occasionally visits this immovable property and supervises the agricultural activities. This statement and the facts stated therein remains valid in the absence of any contradicto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 2(10) of the PBPT Act, 1988. ii. The Ld. AA erred in not considering the fact, no cash withdrawals upto the value of purchase consideration from any of the bank accounts of Sh. Somendra Dhariwal could be observed during that period, which clearly shows that Sh. Somendra Dhariwal didn't have the capacity to make such huge investment in these properties. iii. Seller of this property- Shri Rajveer Singh Yadav has stated in his statement recorded on oath u/s 19 of the PBPT Act, 1988 that Shri Shobharam Dhariwal paid the amount of Rs. 28,00,000 as purchase consideration and made expenditure of Rs. 4,57,600/- as registry expenses. He further admitted that Shri Shobharam Dharival supervises agricultural work on this land. This statement and the facts stated therein remains valid in the absence of any contradictory finding before the Ld. Adjudicating Authority. This fact proves that Shri Shobharam Dhariwal has paid the consideration for purchase of the property and getting benefited from it. iv. As discussed in the financial profiles of the Beneficial Owner and the Benamidar, both have already exhausted their savings in various expenses and bank balances, hence, they are not lef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctivities. This statement and the facts stated therein remains valid in the absence of any contradictory finding before the Ld. Adjudicating Authority. This fact proves that Shri Shobharam Dhariwal has paid the consideration for purchase of the property and getting benefited from it. iv. Ld. AA has erred in not considering the fact that as discussed in the financial profiles of the Beneficial Owner and the Benamidar, both have already exhausted their savings in various expenses and bank balances, hence, they are not left with any known source of income/savings in their hands. Therefore, the subject property is nothing but a 'benami property purchased by Shri Shobharam Dhariwal from his unknown sources of income. v. Thus, it is clear from the above statements of the sellers that Beneficial Owner- Shri Shobharam was directly involved in purchase of above subject property in the name of Benamidar- Shri Somendra Dhariwal and has paid the consideration in cash from his unknown sources of income to the sellers of the subject property (Detailed discussion is done in PAO 24(4) dated 28.04.2022) and he also manages these properties. Thus, Shri Shobharam Dhariwal is the beneficial owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ariwal from his unknown sources of income. iv. Thus, it is clear from the above statements of the sellers that Beneficial Owner- Shri Shobharam was directly involved in purchase of above subject property in the name of Benamidar- Shri Somendra Dhariwal and has paid the consideration in cash from his unknown sources of income to the sellers of the subject property (Detailed discussion is done in PAO 24(4) dated 28.04.2022) and he also manages these properties. Thus, Shri Shobharam Dhariwal is the beneficial owner as per the provisions of section 2(12) of the PBPT Act, 1988. It is also evident from the above statement of the sellers, that they were paid much higher amount in cash while the registries were made on low purchase consideration in the name of the benamidar. Therefore, these transactions are clearly covered u/s sec 2(9)(A) of the PBPT Act, 1988. Coming to the property purchased in the name of Kapuri Devi were excluded on the ground that both her sons and husband were working so the property could be purchased in her name. The description of each property has been given by the appellant which otherwise has been left by the Adjudicating Authority for confirmation in case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... left with any known source of income/savings in their hands. Therefore, the subject property is nothing but a 'benami property purchased by Shri Shobharam Dhariwal from his unknown sources of income. vi. The Ld. AA erred in not considering that Sh. Shobharam Dhariwal i.e. Beneficial Owner/D-2 was directly involved in purchase of the above subject property and has paid the consideration in cash to the seller of the subject property by using his income from unknown sources. Furthermore, he is also enjoying benefits from this property by conducting agricultural activities on this land as stated by the seller of this land in his statement on oath. Thus, these actions of Shri Shobharam Dhariwal establish him as the beneficial owner as per the provisions of section 2(12) of the PBPT Act, 1988. It is also evident from the above statement of the sellers, that they were paid much higher amount in cash while the registries were made on low purchase consideration in the name of the benamidar Therefore, these transactions are clearly covered u/s sec 2(9)(A) of the PBPT Act, 1988. K. Property at Sr. No. 06 of PAO u/s 24(4) dated 28.04.2022 (Khasra No. 1157/2, arca 0.57 Нес ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and has paid the consideration in cash to the seller of the subject property by using his income from unknown sources. Further, he is also enjoying benefits from this property by conducting agricultural activities on this land as stated by the seller of this land in his statement on oath. Thus, these actions of Shri Shobharam Dhariwal establish him as the beneficial owner as per the provisions of section 2(12) of the PBPT Act, 1988. It is also evident from the above statement of the sellers, that they were paid much higher amount in cash while the registries were made on low purchase consideration in the name of the benamidar Therefore, these transactions are clearly covered u/s see 2(9)(A) of the PBPT Act, 1988. L. Rs. 2,00,096/- in bank accounts mentioned at Sr. No. 1 to 3 of Table-C(1); Account No. Type of A/c Bank name Balance as on 3895895681 FD Central Bank of India 07.01.2022: Rs. 49,698/- 3894750714 RD Central Bank of India 07.01.2022: Rs. 44,000/- 3797250666 FD Central Bank of India 07.01.2022: Rs. 1,06,398/- i. Ld. AA has grossly erred by observing that the IO has failed to reason as to how Section 2 (9)(A) of the Act is applicable. Ld. AA was required to appreciate th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suffers from perversity and otherwise record contradictory finding. The order is even in conflict to provision of law and the facts available on record. The prayer was accordingly made to set aside the order for all the properties of which description has been given above and left out from confirmation despite acquisition of properties after 01.11.2016. Prayer was accordingly made to set aside the impugned order even for other properties and be made subject to outcome of the review petition pending consideration before the Apex Court in the case of Ganpati Dealcom (supra). The appeal is seriously contested by the respondent. The Counsel submitted that impugned order has been passed after consideration of factual and legal issues thus needs no interference. Referring to the facts of this case, it was submitted that value of property taken by the appellant Directorate was different than on which registration or purchase was made. Shri Domendra Dhariwal purchased the property out of his salary while working on the post of Rural Agricultural Extension Officer. His wife, Ms. Anita Kumari was also working as bank manager in Central Bank of India. She was having earning between the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e name of Kapuri Devi and properties at Sr. no. 1 to 13 and 17 in the name of Somedra Dhariwal given in Table-B on the ground that it was purchased or acquired prior to 25.10.2016 and thus, amendment in the Act of 1988 w.e.f 01.11.2016 would not be applicable in the light of the judgement of the Apex Court in the case of Ganpati Dealcom (supra). It is made clear that the impugned order at para 5.2 records that properties mentioned at Sr. No. 1 to 13 and 17 were acquired prior to 25.10.2016, however, the factual position would reveal that properties mentioned at Sr. No. 1 to 14 were acquired prior to 25.10.2016 as given in Table-B. The order of the same nature has been passed even for the two F.D.s and one bank account at serial no. 1 to 3 given in Table B-(I) said to have been opened prior to 25.10.2016. Challenge to the denial of confirmation of properties mentioned at Sr. no. 1 to 19 and 29 in Table-A apart from 5 movable properties in Table-A (1), immovable properties at Sr. no. 1 to 4 given in Table C and Sr. no. 1 to 14given in Table-B apart from 3 movable properties in Table- B (1) has been made in reference to pendency of the review petition before the Apex Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence to show not only the anomaly in the finding but perversity therein: Analysis and Findings: 5.4 As is observed from the facts of the case, which have been discussed at previous paras, the alleged benami transactions pertaining to the aforesaid immovable properties mentioned at Sr. No. 1 to 19 and 29 and the movable properties have occurred prior to 25.10.2016, that is, the date of entry into force of the amended PBPT Act, of 2016. In view of the aforesaid Judgment of the Hon'ble Supreme Court in the case of Union of India Anr vs. M/s. Ganpati Dealcom Pvt. Ltd in SLP(C) 2784/2020 dated 23.08.2022, the Provisional Attachment Order u/s 24(4) of PBPT Act dated 31.03.2022 of the 1.0., holding the aforesaid immovable properties mentioned at Sr. No. 1 to 19 and 29 and the movable properties as benami property u/s 2(8) of the amended PBPT Act and coming the provisional attachment of the same as per the provisions of the amended PBPT Act of 2016, cannot be sustained and confirmed by this Authority under the provisions of the Section 26 of the amended PBPT Act, as the alleged benami transactions have occurred during the period before the amended PBPT Act of 2016 came into force on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their credit not only their salary/professional income but also the income from the investments like agricultural land and FDs made prior to 25.10.2016. 5.6 In the case in hand, Out of total 29 immovable properties, 20 properties (4.228 Hectares) were acquired prior to 25.10.2016 and as already dicussed, all these properties have now lost their Benami credentials. Similarly, all FDs and bank balances were made prior to 2016 in the case in hand and they are also out of the ambit of Section 2(9)(A). Thus, for the remaining properties acquired after 2016 having market value of Rs. 1,59,03,118/- (Rs. 33,30,618/- as per registered sale deed), keeping in view the above facts, neither it can be said prima facia that the BO had provided consideration to the vendors for acquiring the properties in question in the name of BDs, nor it can be assumed that he is or will be enjoying the benefits of these investments. Now onus is on the IO to establish along with evidences, direct or indirect, to show that BO had provided consideration and that he will use these properties for his own benefit. It is seen that the 10 has invoked Section 2(9)(A) of the PBPT Act for the transactions in question. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... father must be reaping benefits from the properties in question. It is seen that both the Benamidar and Beneficial owner in the case in hand as well as in two other connected references were all related to each other being a joint family of father, mother, two sons, and their respective wives and that apart from Shobharam Dhariwal and his two Sons, his Daughters in Law Smt. Anita Kumari and Smt. Khyati Jain are also eaming and contributing in the family Income. It cannot be said that the father alone is reaping the benefits of the properties in question as the investment made by the father will ultimately be benefitted by the son and whole family only. So it cannot be said that the Benamidar in the instant case has only lend his name for namesake and has nothing to do with the properties in question apart from lending his name. In view of this, even the second limb of Section 2(9)(A) of the PBPT Act stands not justified by the IO. 5.7 As discussed in detail above, the IO has not given any findings or justification invoking Sections 2(9)(A) of the PBPT Act in order to hold the transactions in question as benami transactions under the provisions of the PBPT Act. Considering the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties) while his total accounted salary income is only Rs. 63.95 lakhs. It is evident that the ancestral agricultural land is not capable of giving any substantial agricultural income. The investment (out of unaccounted income) was made in the name of Beneficial Owners' wife and two sons who all were non-earning member till 2011 when one son, a doctor, started earning income from 2011 onwards and Second son starts getting very modest salary since 2013. From this, there is no doubt what so ever that whatever investments were made in the name of wife or two sons till 25.10.2016, all of them were arising out of unaccounted income of the Beneficial Owner. These investments as alleged by the 10, were as under:- Agricultural Land: Rs. 1,19,03,343/- FDs: Rs. 9,82,650/- Saving Bank Balances: Rs. 12,45,042/- Thus, had Section 2(9)(A) still be applicable, all the limbs of Section 2(9)(A) were clearly applicable; the considerations were clearly provided by B.O, whereas the legal ownerships were with minor/ non-earning sons and wife who were not in a position to reap benefit arising out of these investments and because the source of these investments were from unknown sources (unaccounted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to a person for which consideration is provided by another person and the person providing the consideration must be reaping immediate or future benefits out of it either directly or indirectly. Since the properties acquired before 25.10.2016 has lost the Benami credentials due to the judgement of Apex Court in Ganapati Dealcom Pvt. Ltd. though held by the IO as Benami in his PAO, the only question left is to test the properties acquired after it from Benami point of view in terms of Section 2(9)(A) of PBPTA. In the instant case the allegation of the IO is that the properties in question were acquired by the father Shri Shobharam Dhariwal in the name of his son Shri Somendra Dhariwal from his unknown sources as the son was minor/non-earning till 2013 and was not in the position to arrange funds to acquire the properties in question. It is seen that during the period of acquisition of the properties post 25.10.2016, Shri Somendra Dhariwal was no more minor and he is work is working as a qualified Doctor since 2011 and earning for his family as is evident from his financial profile discussed by the IO in his PAO in detail. It is further seen from the Reference that even the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d benami transactions pertaining to the aforesaid immovable properties mentioned at Sr. No. 1 to 04 have occurred prior to 25.10.2016, that is, the date of entry into force of the amended PBPT Act, of 2016. In view of the aforesaid Judgment of the Hon'ble Supreme Court in the case of Union of India Anr. vs. M/s. Ganpati Dealcom Pvt. Ltd in SLP(C) 2784/2020 dated 23.08.2022, the Provisional Attachment Order u/s 24(4) of PBPT Act dated 31.03.2022 of the L.O., holding the aforesaid immovable properties mentioned at Sr. No. 1 to 04 as benami property u/s 2(8) of the amended PBPT Act and continuing the provisional attachment of the same as per the provisions of the amended PBPT Act of 2016, cannot be sustained and confirmed by this Authority under the provisions of the Section 26 of the amended PBPT Act, as the alleged benami transactions have occurred during the period before the amended PBPT Act of 2016 came into force on 25.10.2016, whose provisions have been held by the Hon'ble Supreme Court as not being applicable retrospectively. 5.5 Before proceeding further to deal the rest of the properties, one need to take a pause and cast a bird's eye view on the facts of all thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25.10.2016 and as already discussed, all these properties have now lost their Benami credentials and are therefore out of the ambit of Section 2(9)(A). Thus, for the remaining properties acquired after 2016 amounting Rs. 55,35,096/-, {immovable properties having market value of Rs. 53,35,000/- (Rs. 7,96,775/- as per registered sale deed) and Rs. 2,00,096/- for the Bank Deposits), keeping in view the above facts, neither it can be said prima facia that the BO had provided consideration for acquiring the properties in question in the name of Ris, nor it can be assumed that he is or will be enjoying the benefits of these investments. Now onus is on the IO to establish along with evidences, direct or indirect, to show that BO had provided consideration and that he will use these properties for his own benefit. It is seen that the IO has invoked Section 2(9)(A) of the PBPT Act for the transactions in question. Section 2(9) (A) of the PBPT Act states that: 2(9) benami transaction means- (A) a transaction or an arrangement- (a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by another person; and (b) the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wives and that apart from her husband and her two sons, her daughters in Law Smt. Anita Kumari and Smt. Khyati Jain are also earning and contributing in the family Income. It cannot be said that the husband alone is reaping the benefits of the properties in question as the investment made by the husband will ultimately be benefitted by the wife, her sons and the whole family only. So, it cannot be said that the Benamidar in the instant case has only lend his name for namesake and has nothing to do with the properties in question apart from lending his name. In view of this. even the second limb of Section 2(9)(A) of the PBPT Act stands not justified by the IO. Further, with regard of Ben d to the movable properties in questions his Provisional Attachment Order dated 28.04.2022, viz, bank account deposit created in so attached by the 10 in the name of Smt. Kapuri Devi Dhariwal, it is seen from the Reference of one that the two FDs and one RD so attached by the IO have very nominal amount (Rs. 2,00,096/- in total) so it is hard to believe that a wife having a earning husband and a mother having two earning sons and two earning daughters in law has no wherewithals to invest the nomina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank balance as on 31.03.2020 Day to day expenses @ 30% of total earning Savings left for investment till F.Y. 2019-20 1. Shobhram Dhariwal 63.95 lacs 11.32 lacs 19.18 lacs Nil* 2. Domendra Dhariwal his wife 23.25 lacs + 33.30 lacs 11.80 lacs + 45.32 lacs 16.95 lacs Nil 3. Somendra Dhariwal his wife 37.99 lacs + 37.25 lacs 35 lacs + 25 lacs 22.57 lacs Nil 4. Kapuri Devi No ITR no significant source of income - - Nil If the total income of all the appellants is also taken into consideration, it does not come to Rs. 4 crore and 58 lacs. The table given above gives description of the income of the appellant and after deducting 30% of the amount, the net earning was not sufficient to acquire the property worth more than 4 crore and 58 lacs and otherwise substantial amount was lying in bank as on 31.03.2020 but was ignored by the Adjudicating Authority. The property was acquired for a value of a sum more than the earning. It was out of the illicit income of Shobharam Dhariwal while in service of the agriculture department. The unaccounted amount was used to acquire the property in the name of wife and sons for his own benefit and therefore it becomes a case of benami transaction‟ b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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