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TMI Blog2024 (9) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... e the property was purchased i.e. M/s Seasons Warehousing Pvt. Ltd. had no capacity to purchase the property worth of Rs. 01 Crore because as per the annual return submitted with the ROC, it was having worth of around 7 lakhs and that too in the Financial Year 1998-99. It is also a fact that the ITR for the Assessment Year 2020-21 filed by M/s Voltamp Controls Pvt. Ltd. reflected the address of the said property. Adjudicating Authority ignored the definition of Benami transaction given under the amending Act of 2016 while passing the order. The property in question was purchased in the name of M/s Seasons Warehousing Pvt. Ltd. Respondent No. 1 whereas it was not having means to pay consideration. M/s Voltamp Controls (I) Pvt. Ltd. Respondent No. 2 was holding the property in the name of M/s Seasons Warehousing Pvt. Ltd. Respondents did not contest the factual issues. It may be for the reason that the purchase of the property in the name of M/s Seasons Warehousing Pvt. Ltd. is for a sum of Rs. 01 Crores whereas the Company was not having sufficient funds to purchase the property worth of Rs. 01 Crores. It was thus held by M/s Voltamp Controls (I) Pvt. Ltd. and the address of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said property. Accordingly, the appellant could find that Respondent No.1 has not completed any legal requirement to be fulfilled by the Company registered with ROC. It is also a fact that the ROC has struck off the name of the Company and thereby in reality it is not even existing. The Company, however, used PAN number to undertake the property transaction on 28.12.2015 while not complying the filings required for the Income-tax purpose. The outcome was that the property was purchased by the fictitious company being non-existent on the record. The Provisional Attachment Order thereupon was passed under Section 24(4)(a)(i) of the Act of 1988. Since the attachment has not been confirmed by the Adjudicating Authority and the reference has been rejected, the appeal has been preferred. 6. The learned counsel submitted that the Adjudicating Authority refused to confirm the attachment and rejected the reference only for the reason that the property in question was purchased on 28.12.2015 and remained under enjoyment and possession with M/s Voltamp Controls (I) Pvt. Ltd. thus it was prior to the amendment in the Act of 1988 and in the light of the judgment of the Apex Court in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in the Act of 1988 and since it is not applicable retrospectively, the Adjudicating Authority has rightly refused to confirm the Provisional Attachment Order. Thus, the prayer was made to dismiss the appeal. 9. It is, however, urged by the counsel for the appellant that the word held' given under Section 2(9)(A) should be read with the word 'transfer' for the interpretation. If the transfer of the property was prior to the amendment and such property was held by the Benamidar, it cannot be termed to be a case of benami transaction. 10. We have considered the rival submissions of the parties and perused the record carefully. 11. The perusal of the order passed by the Adjudicating Authority shows rejection of the reference and denial of confirmation of the Provisional Attachment Order mainly for the reason that the property was purchased by M/s Seasons Warehousing Pvt. Ltd. Respondent No. 1 on 28.12.2015 i.e prior to the amendment in the Act of 1988 w.e.f. 01.11.2016. The Apex Court in the case of Ganpati Dealcom (supra) held that the amended provision affecting the right of the parties would not be applied retrospectively and accordingly the attachment order was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Transaction . The consideration of definition of Benami Transaction by dividing it into two parts was not made earlier. 38. In the case of Nexus Feeds Limited Others (Supra), we do not find a specific argument in reference to holding of property by a person of which consideration was paid or provided by another person. 39. For the aforesaid purpose, we refer para 69, 69.1, 70, 71, 73 and 93 of the said judgement and are quoted hereunder: 69. We have already noted above as to how the definition of benami transaction as finding place in the unamended 1988 Act has undergone a qualitative change post the Amendment Act of 2016. Under Section 2(a) of the unamended 1988 Act, benami transaction was defined to mean any transaction in which property is transferred to one person for a consideration paid or provided by another person. Thus, for a transaction to come within the ambit of benami transaction under the unamended 1988 Act, it must be a transaction in which property is transferred; such property must be transferred to one person by another person; and such transfer of property must be for a consideration paid or provided by the transferor. Under the Amendment Act of 2016, the defini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 'benamidar' and 'beneficial owner'. These two expressions are defined under the Amendment Act of 2016 and must be read in conjunction with the new definition of benami transaction as provided in Section 2(9). Benamidar is the person, real or fictitious, in whose name the benami property is transferred or who holds such benami property; this would include a person who lends his name to such transfer or holding of benami property. Again, beneficial owner means, the person for whose benefit the benami property is held by a benamidar, whether his identity is known or not. 73. From the above analysis, it is beyond any doubt that Section 2(9)(A) and Section 2(9)(C) are substantive provisions, inasmuch as if a transaction or an arrangement comes within the ambit of the aforesaid two provisions, then it would be a benami transaction which is not only prohibited under Sub Section (1) of Section (3) but is also an offence punishable under Sub-Sections (2) and (3) thereof as well as under Section 53 of the 1988 Act as amended. It is interesting to note that under Sub-Section (2) of Section (3), the penalty for the offence of benami transaction is imprisonment which may exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided by another person was not raised rather emphasis was in regard to the transfer of the property prior to the amendment by the Amending Act of 2016. The specific argument aforesaid was not raised even before us in any of the appeals decided by this Tribunal earlier rather the decision therein was based on the admission of the counsel for the respondents that Benami Transaction involved therein was of the period prior to 01.11.2016. The orders were passed on the admission of the parties that Benami Transaction is prior to 01.11.2016. 41. In the instant case, a contest was made by the counsel for the respondents who submitted that if anyone is holding a property after the amendment by the Amending Act, 2016 though transfer of property is prior to 01.10.2016, such a transaction would fall in the definition of Benami Transaction as given under section of 2(9)(A) of the Act of 2016. 42. We find force in the arguments of the learned counsel for the respondents. The Tribunal or for that even a court cannot ignore the statutory provision and for that to miss any word used in the statute. The word held has to be given true meaning and that too after proper reading of the definition, othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as, which are literally based on the admissions of the party where it was agreed that the Benami Transaction was of the period prior to the amendment by the Amending Act, 2016. That being the position, the judgement supra, does not support the appellant. 50. The appellants have referred to the judgement of the Apex Court in the case of Suresh Seth (Supra). It is to submit that there cannot be a continuous offence. If the offence is committed on a particular day, it ends on the same day. The arguments have been made in the ignorance of the facts in the case of Suresh Seth. If an offence is complete in all respect on a particulars day or days, then obviously the judgement in the case Suresh Seth (Supra) would apply. It would however depend on the nature of the offence and even the provision. In the instant case, the definition of Benami Transaction has two parts. One is on the transfer of the property and another on its holding. The use of the word held under section 2(9)(A)(a) is of significance and would make a transaction to be a Benami Transaction, if a person holds a property even on the date of amendment or subsequent to it of which consideration has been provided or paid by an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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