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TMI Blog2024 (9) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be only when it belongs to him and not otherwise. In any case, we do not find any substance in the argument of the appellant to state that no evidence or material has been produced by the respondents to prove case against him. Rather, the material available on record was considered by the Adjudicating Authority and elaborate finding was recorded thereupon. It is based on the material. Thus, we are unable to accept the first argument raised by the appellant. First statement u/s 132(4) was recorded on 06.02.2017 by the Income Tax Authority while the subsequent statement under section 19(1)(b) of the Act of 1988 was recorded on 17th and 18th January, 2018, i.e. with the delay of almost eleven months - Appellant however failed to refer to any provision which mandates that statement should be recorded within the specific period and otherwise as such there is no variance in the two statements of Bikky Kumar Singh recorded under section 132(4) of the Income Tax Act and the subsequent statement under section 19(1)(b) of the Act of 1988. Thus, even second argument raised by the appellant cannot be accepted in absence of a statutory provision to mandate recording of the statement within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requirement of approval under section 24(4)(a)(i) is concerned, the compliance of the aforesaid also exist. It was for continuing the provisional attachment of the property. Appeal dismissed. - JUSTICE MUNISHWAR NATH BHANDARI : CHAIRMAN AND SHRI BALESH KUMAR : MEMBER For the Appellant : Mr. Sanjay Chadha, Advocate, Mr. Hardik Jain, Advocate and Mr. Pragyan Sharma, Advocate For the Respondent : Mr. Kanhaiya Singhal, S.P.P and Mr. Aaditya Saraf, Advocate ORDER By this appeal under section 46 of Prohibition of Benami Properties Transaction Act, 1988, (in short the Act of 1988), the appellant had challenged the order dated 25.04.2019 passed by the PBPT, New Delhi on a reference number R-746/2018. 2. The learned counsel for the appellant submitted that the impugned order has been passed in ignorance of the issue raised by the appellant and going contrary to the record and otherwise it is without application of mind. Elaborating the argument, learned counsel for the appellant has referred brief facts of the case. Brief facts of the case 3. It is stated that on 06.02.2017 one Bikky Kumar Singh was apprehended by GRP at New Delhi Railway with cash currency of around Rs. 3 crores. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argely relied on the statement of Bikky Kumar Singh to record its finding to hold appellant to be the beneficial owner. It is even in ignorance that the statement of Bikky Kumar Singh was recorded initially u/s 132(4) of the Income Tax Act and subsequently under section 19(1)(b) of the Act of 1988 but it was with the delay of more than eleven months. Thus, the statement subsequently recorded could not have been relied and otherwise no material could be produced by the respondents to connect the appellant with the seizure of the currency notes from Bikky Kumar Singh. 9. In view of the above, the interference in the finding of the Adjudicating Authority should be made. It is more so when the appellant has made it clear that the currency seized does not belong to him rather he has wrongly been implicated in the matter showing him to be a beneficial owner. The impugned order thus deserves to be set aside on the aforesaid ground itself. 10. The other argument was that the impugned order was passed in violation of section 26(7) of the Act of 1988. The provision aforesaid mandates that no order under sub section (3) of section 26 would be passed by the Adjudicating Authority after expiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for challenge to the order passed by the Adjudicating Authority. However, before addressing factual and legal issues raised by the appellant, it would be relevant to refer few facts of the case. 16. It is a case where one Bikky Kumar Singh was apprehended by GRP, New Delhi and found in possession of approx. Rs. 3 crores in cash. The Investigating Wing of the Income Tax Department immediately reached to GRP Office, New Delhi on 06.02.2017 itself. The statement of Bikky Kumar Singh was recorded under section 132(4) of the Income Tax Act which are considered to be sworn statement. He was confronted to produce evidence with respect to the source of money of Rs. 2,99,90,000/-. Bikky Kumar Singh stated that he was acting as a courier and the money was to be given to Mr Pawan. The money was belonging to Sh. Anil/Rahul/Mama. It was received at Katihar Railway Station, Bihar. 17. In the statement, Bikky Kumar Singh stated that he was working in a grocery shop in the name of Vijay Bhandar in Kolkata at the salary of Rs. 8,000/- per month. Shri Anil/Rahul was frequent visitor of the shop. He gave Rs. 3 crore to deliver it to Mr Pawan in Delhi. Since, Bikky Kumar Singh was caught by the poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating Authority and elaborate finding was recorded thereupon. It is based on the material. Thus, we are unable to accept the first argument raised by the appellant. We are quoting relevant part of the statements of the persons recorded and referred in the impugned order along with relevant paras of the order. It is not in dispute that amount of Rs. 2,99,90,000/- was seized from Shri Bikky Kumar Sing, Benamidar (D-1) at New Delhi Railway Police Station on 06.02.2017. D-1 had 2.99 failed to produce any evidence with respect to the said amount. Initially D-1 stated that the said amount was to be handed over to unidentified person Mr. Pawan. D-1 also admitted in his statement Under Section 132(4) of Income Tax Act, that the money belongs to shri Anil/Rahul/Mama and was received at Katihar Railway Station, Bihar. The said amount was consequently deposited in PD Account of Income Tax (Inv.), New Delhi on 07.02.19. The said statement is reproduced in the order passed by 1.0, as is reproduced above. D-1's statement was also recorded under Section 19(1)(b) of PBPT Act, which is also reproduced by the 1.0 in the order dt. 22.03.2018 and is reproduced above. It is evident therefrom tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had filed his reply dated 30.01.2018 received in this office on 01.02.2018. In his reply Sh. Rahul shah had denied that the amount found with Sh Bikky Kumar Singh belongs to him and he has never entered into any transaction with Shri Bikky Kumar Singh. From the statement u/s 19(1)(b) of Shri Bikky Kumar Singh it has come to light that Shri Bikky Kumar Singh is a person of very limited means and in no way can justify the source of cash amounting to Rs. 2,99,90,000/- found in his possession on 06/02/2017 during the search and survey action u/s 132 of the Income Tax Act, 1961. Sh. Bikky Kumar Singh, is a person earning a meager amount of Rs. 8,000/- p.m. as admitted by him on oath before the statement before the I.O, BPU-1 on 17/01/2018. No evidences whatsoever was produced before the 1.0 BPU-1 to justify the source of funds during the investigation proceedings after issuance of notice u/s 24(1) of the Act. Further the non appearance and vehement denial of Sh. Rahul Shah regarding source of funds and also denial of any cash transaction with Bikky Kumar Singh leaves no option with the I.O BPU-1 Delhi but to rely on evidence provided by the benamidar Mr. Bikky Kumar Singh. From the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) any interested party, including a banking company; (d) any person who has made a claim in respect of the property: Provided that the Adjudicating Authority shall issue notice within a period of thirty days from the date on which a reference has been received: Provided further that the notice shall provide a period of not less than thirty days to the person to whom the notice is issued to furnish the information sought. (2) Where the property is held jointly by more than one person, the Adjudicating Authority shall make all endeavours to serve notice to all persons holding the property: Provided that where the notice is served on anyone of the persons, the service of notice shall not be invalid on the ground that the said notice was not served to all the persons holding the property. (3) The Adjudicating Authority shall, after (a) considering the reply, if any, to the notice issued under sub-section (1); (b) making or causing to be made such inquiries and calling for such reports or evidence as it deems fit; and (c) taking into account all relevant materials, provide an opportunity of being heard to the person specified as a benamidar therein, the Initiating Officer, and any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard may prescribe for this purpose. 23. Section 26(7) mandates order under sub-section 3 of section 26 within a period of one year from the end of the month in which reference under sub-section (5) of section 24 was received. The learned counsel for the appellant has ignored the word received rather it was taken to be the date of reference . In fact, no pleading has been made to plead the order was passed beyond a period of one year from the date of receipt of the reference. Though, the issue aforesaid is mixed question of facts and law. In any case, it was clarified by the respondent that reference dated 26.03.2018 was received by the Adjudicating Authority in the month of April 2018 who then caused show cause notice to Bikky Kumar Singh with a copy to the appellant in the month of April 2018 and the order was passed within one year from the date of receipt of the reference. In fact, from the end of the month of the receipt of the reference, the impugned order was passed within one year. Thus, the third issue raised by the appellant is also not made out though was not even pleaded in the appeal. 24. The next question raised by the appellant was is in reference to section 24(2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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