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TMI Blog2024 (11) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... g the documents along with the rejoinder but they have not been accepted in absence of application for taking additional documents on record at the appellate stage and otherwise it was not pressed by the appellant. We otherwise find that the assessment order for the block period 2011-12 to 2021-22 is subsequent to the impugned order and cannot support the appellant. The perusal of the assessment order otherwise shows the conduct of the appellant as he could not show source to acquire the properties while his statements were recorded under Section 19 of the Act but submitted I.T. return subsequent to it. The addition of income can be acceptable under the Income-Tax Act but it cannot be used for adjudication under the Act of 1988 and otherwise if the practice adopted by the appellant is accepted, every benamidaror beneficial owner get the assessment of block years by one order after paying the income tax and penalty without submission of proof of income before the IO or the Adjudicating Authority. We have made comment in reference to the assessment order though a serious objection of the document has been taken and as such we have not recorded our finding going deep in the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n/modification of the order dated 24.06.2022 but it was disallowed by the Adjudicating Authority vide its order dated 13.02.2023. 2. The learned counsel for the appellant submitted that the impugned order had been passed by the Adjudicating Authority in ignorance of the facts available on record so as the provisions of law applicable to the case and accordingly the attachment order was erroneously confirmed by the impugned order. 3. The appellant was held to be the benamidar of the properties given in three tables leaving one property at Item No.8 in Table `A . While confirming attachment of all the other properties holding it to be a case of benami transactions, it was taken under different sub-sections of Section 2(9) of the Act of 1988 as amended by the Amending Act of 2016 by the Notification dated 25.10.2016. 4. The appellant had disclosed sources for acquisition of the properties said to be benami with active support of his employer Piyush Gupta who was also served with the notice by the IO. The Adjudicating Authority ignored the fact that the appellant successfully demonstrated and proved sources to acquire all the properties. It was held to be benami after considering it to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H.No. 19, Gali No.01, ChowkiImambada, Huzur, Bhopal (M.P.) 1. Shri Arif Khan S/o Late Shri Dilshad Khan House no. 27, Gali no.2, Mugalpura, Barahmahal, Shahjahanabad, Bhopal 2. Sabiya Khan W/o Late Shri Rasheed Khan House no.27, Gali no.2, Mugalpura, Barahmahal, Shahjahanabad, Bhopal 3. Smt. Haseeba Bee, W/o Late Shri Haroon Khan, House no.27, Gali no.2, Mugalpura, Barahmahal, Shahjahanabad, Bhopal 4. Shri Shaheen Khan W/o Late Shri Rafeeq Khan, House no.27, Gali no.2, Mugalpura, Barahmahal, Shahjahanabad, Bhopal Rs.8,00,000/- Mode-Cash 4. Flat 536 Sq.ft Flat No.S-6, 2nd Floor, Usmani Heights, situated at Plot no.78, Kumharpura, Near Rejiment Road, Ward no.11, Bhopal Date of registry 26.04.2017 Mohd Farooq (Benamidar), S/o Late Shri Abdul Rakeeb R/o H. No. 19, Gali No. 01, ChowkiImambada, Huzur, Bhopal (M.P.) 1. Shri JavedUrmani S/o Late Shri VaheedUrmani 78, Kumharpura, Near Rejiment Road, Ward no. 11, Bhopal 2. Mohd. ParvejUrmani S/o Late Shri VaheedUrmani 78, Kumharpura, Near Regiment Road, Ward no. 11, Bhopal. Rs.10,00,000/- Mode- Cash 5. 170 0.550 Hec. Gram-Kolukhedi, PHN 34, Tehsil-Huzur, Bhopal Date of registry 08.07.2020 Mohd Farooq (Benamidar), S/o Late Shri Abdul Rakeeb R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the livelihood. Form 26AS show no TDS deductions or other substantial income including interest, rent or commission. The counsel for the appellant, however, submitted that the appellant was a BPL card holder indicating low income and limited financial resources. Thus a lenient view should have been taken by the Adjudicating Authority but it erroneously confirmed the order accepting the reference. 9. The appellant submitted documents along with the rejoinder without an application for taking the additional documents on record and otherwise the documents enclosed along with the rejoinder were not part of the proceedings before the authority below. Thus, a serious objection for consideration of those documents was raised by the counsel for the respondent and accepted by the Tribunal. Accordingly, counsel for the appellant did not refer those documents which were basically to prove the income by showing payment of income-tax though even if those documents are looked into, they are not sufficient to prove the sources for acquisition of the property and otherwise assessment order is for the block period starting from 2011-12 onwardsi.e much subsequent to the order impugned herein and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1 and 2 of Table `A on the strength of the judgment of the Apex Court without realizing that the judgment does not provide assistance to the appellant. If at all the date of purchase is taken to be 4.12.2013, property was held by the appellant even after the amendment w.e.f. 01.11.2016 thus case for those properties would fall under Section 2(9)(A) of the Amending Act of 2016. 14. The detailed arguments were made by the counsel for the respondent which would be referred while recording our finding to the arguments raised by the counsel for the appellant. It is to avoid repetition of the one and same facts. 15. We have considered the rival submissions of the parties and perused the record carefully. 16. It is a case where the allegation against the appellant was for acquisition of benami properties while he was employee of Piyush Gupta, the defendant No.2 before the Adjudicating Authority. The appellant was getting meagre salary of Rs. 15,000/- per month. However, during the course of search and seizure, it was found that the appellant Mohd. Farooq made investment of Rs.1,41,37,500/- during the Financial Years 2012-13, 2013-14, 2017-18 2020-21. The respondent found different prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant pressed the appeal mainly for release of properties at Item Nos. 1 and 2 of Table `A and Property at Item No. 1 of Table `C though later on he pressed the appeal mainly for release of properties at Item Nos. 1 and 2 of Table `A though failed to place the documents to indicate the source for acquisition of all the properties. 20. So far as the properties at Item Nos. 1 and 2 of Table `A are concerned, the argument has been raised to cause interference in the impugned order on the strength of the judgment of the Apex Court in the case of GanpatiDealcom as the property said to have been purchased prior to 25.10.2016. The amending Act of 2016 has no retrospective effect in the light of the judgment (supra). 21. We have considered the main submission of the appellant but finding that the Properties at Item Nos. 1 and 2 were purchased subsequent to the amendment i.e. on 04.12.2016 and not prior to the amendment, however, a confusion remains because 04.12.2013 has been shown to be the date of purchase in Table `A of the impugned judgment though throughout discussion, the Adjudicating Authority has taken date of purchase of the properties at Item Nos. 1 and 2 on 04.12.2016 and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the property for which he got assessment of income, no one prevented him to show the source for acquisition of property before the IO and the Adjudicating Authority. The detailed finding recorded by the Adjudicating Authority rather disclosed as to how the benami properties came in the name of the appellant benamidar. The finding in regard to each benami property has been recorded. The payment to acquire the property said to have been made largely in cash without disclosing the source for acquiring the cash. The Adjudicating Authority has made detailed discussion for purchase of each property vis- -vis the source of income. 26. In the light of the discussion made above and finding that the appellant failed to submit the material to prove the source of income before the Adjudicating Authority and even while filing the appeal, no document was submitted to prove the source for acquisition of property. The documents submitted along with rejoinder were without permission of the appellate court and were not relied later on by the counsel. The learned counsel for the appellant referred to the judgment of the Apex Court in the case of GanpatiDealcom (supra) and more specifically referen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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