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TMI Blog2024 (11) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... hings changed when the SVPL try to come to rescue of the appellant. The Company is equally responsible for the benami transaction because they did not take KYC documents despite the fact that it became mandatory in the year 2016 and continued the locker in the name of Shiv Daga. This highlights the conduct of SVPL. The fact now remains about the request letter given by the appellant to change the name from Shiv Daga to Shiv Narayan Baheti starting from the year 2013. The reminder was given even in the year 2015. It ishowever a fact that name was changed subsequent to the search and seizure. The only reason for delaying the change of the name was in absence of the payment which is shown to have been paid in the year 2019 without putting any documents as to show what was the arrangement between appellant and the SVPL for operation of lockers and what was the rent decided amongst them. We have already highlighted the conduct of SVPL who is trying to support the appellant because their mis-doings are also highlighted for not taking KYC in the year 2016, otherwise the things would have been settled in the year 2016 itself. To cover up the defaults, they said to have accepted the payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... KanhaiyaSinghal, S.P.P Mr. AadityaSaraf, Advocate ORDER The appeal has been filed under section 46 of the Prohibition of Benami Property Transaction Act, 1988 (in short, the Act of 1988) to challenge the order dated 31.01.2022 passed by the Adjudicating Authority under section 26 (3) of the Act of 1988 to confirm the attachment and also the reference. 2. It is a case where the respondents attached gold and silver articles valued toRs. 1,23,27,770/- (the market rate prevalent on 27.03.2019). Brief Facts of the Case 3. The learned counsel for the appellant gave brief facts of the case and stated that the articles in the two locker numbers 1947 and 1955 with M/s Shree Vardaan Safe Deposit Vaults Pvt. Ltd. (in short SVPL) were opened in the year 1998 in the name of Shiv Daga by taking the first part of the name of the appellant and the later part of his sister Krishna Devi Daga. The gold and silver found in his locker has been taken to be out of benami transaction under section 2 (9) (B) of the Act of 1988 as amended by the Amending Act of 2016. 4. It was stated that the sister Krishna Devi Daga was having some family dispute and therefore asked the appellant to open the lockers to ke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment by the Amending Act, 2016. 9. The prayer was made to set aside the impugned orders and with the aforesaid, the appeal be allowed. 10. The counsel for the appellant did not raise any other argument than referred to above despite an opportunity given by the Tribunal. The counsel for the appellant restricted his arguments limited to the issues referred to above and accordingly we called upon the respondents for contest. Arguments of the Counsel for the Respondent 11. The learned counsel for the respondent vehemently contested the appeal. It was submitted that on a search and seizure operation conducted under section 131 of Income Tax Act, 1961, many lockers were found with SVPL whose locker holders could not be identified. Locker number 1947 and 1955 was existing in the name of ShivDaga as per the record of SVPL. The summons were issued to Shiv Daga on the address available on record with SVPL. However, it could not be served as no person named as Shiv Daga was found at the address 6, Vivekanand Road, Kolkata. The SVPL published a notice on 25.02.2019 regarding search and seizure of the lockers and it was given in seven newspapers in all the popular languages but appellant d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ker without referring to her name so that she may keep the valuables and the ornaments therein. The appellant saidthat he has opened the locker in the name of Shiv Daga taking his first name and the last name of his sister. 17. As against the aforesaid argument, appellant has disclosed Shiv Daga to be his name, that is Shiv Narayan Baheti alias Shiv Daga. The two versions to justify opening of the lockers in the name of Shiv Daga goes in contradiction and in conflict with each other. If the lockers were opened on the request of the sister by taking his first name and last name of the sister, there remains no reason for the appellant to plead or argue that his second name was Shiv Daga which otherwise was stated even by SVPL while filing reply to the Show Cause Notice. The fact aforesaid shows the conduct of the appellant and his dubious personality. The issue would not end here for the reason that while opening the lockers, he had given his own address but no documents were submitted which includes even the KYC even in the year 2016 despite it was required. The fact becomes alarming when the signature of the appellant are looked into for opening of the lockers and other documents w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other justification could be given. The excuse was not acceptable not only for the reason that when search and seizure was made in reference to few lockers, the onus was on the SVPL and also on the appellant to immediately submit the true facts if it was true and not to cook up the story subsequently. The facts on record show how the things changed when the SVPL try to come to rescue of the appellant. The Company is equally responsible for the benami transaction because they did not take KYC documents despite the fact that it became mandatory in the year 2016 and continued the locker in the name of Shiv Daga. This highlights the conduct of SVPL. 21. The fact now remains about the request letter given by the appellant to change the name from Shiv Daga to Shiv Narayan Baheti starting from the year 2013. The reminder was given even in the year 2015. It ishowever a fact that name was changed subsequent to the search and seizure. The only reason for delaying the change of the name was in absence of the payment which is shown to have been paid in the year 2019 without putting any documents as to show what was the arrangement between appellant and the SVPL for operation of lockers and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in fact it was given to the appellant if he claims to be Shiv Daga by himself. It is not that respondent did not issue notice under section 24 (1) rather it was sent in the name of Shiv Dagaat the address of the appellant and if the name of the appellant is Shiv Narayan Baheti alias Shiv Daga then the compliance of section 24 (1) was made and otherwise the appellant made representation of his case before the IO. Thus, the attachment followed by reference cannot be held to be illegal. It is more so when the appellant was given full opportunity of hearing before the Adjudicating Authority to canvas his case but the order of the confirmation was made when appellant failed to make out a case. Thus, full opportunity of hearing was provided to the appellant and thereby the proceeding would not vitiate on the ground taken by him. 27. The issue now remains about the application of the judgement in the case of Union of India Anr. Versus M/s. GanpatiDealcom Pvt. Ltd. wherein it has been held that the transaction prior to the amendment by the notification dated 25.10.2016 would not be covered by the amended provision having prospective application. It was submitted that locker was opened ..... X X X X Extracts X X X X X X X X Extracts X X X X
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