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TMI Blog2018 (10) TMI 2044X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion was no longer with the appellants and could not have been attached at the hand of appellants who were merely carriers of the amount, the said fact has not been denied either in the reply or during the course of hearing. Notice would show that it is mechanical in nature. In fact, all notices are identical except for the amount mentioned. It shows a lack of application of mind, thus making the jurisdiction assumed under section 24 is invalid. The ordinary citizens who are not involved under Benami Act cannot be harassed in this manner. The Authority must be aware that end of law, criminal liability is involved, thus, the authority must be very careful being sensitive matters. Existence of the benami transaction has to be proved by the authorities i.e. the person who alleges the transaction (Sitaram Agarwal v. Subrata Chandra [ 2008 (5) TMI 718 - SUPREME COURT] ). The authorities have failed to discharge the burden of proof. The authority has purely gone on the premise that cash is transferred from one person to another, with an object to defeat, demonetization. This is insufficient to establish a benami transaction. The impugned order in two appeals are set aside. The attache ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PB 28, 40 and 51), part of the salary advance was consumed and part was returned back. c. In 7 cases (Number PB 30, 31, 53, 55, 59, 60 and 63), the entire salary advance was consumed. d. In 9 cases (Number PB 26, 32, 41 to 44, 52, 56 and 62), the salary advance was partly consumed, partly deposited in the bank from where withdrawn and consumed. e. In 2 cases (Number PB 15 and 24), the Appellants were mere carriers of money for further disbursal. 4. The facts and legal issues in both the appeals are common so as the impugned order. Therefore, in one single order, both the appeals are being disposed of. The relevant facts taken in appeal no. 15/2018, are given below:- i) The appellant is employed as a Librarian-cum-Sports Co-ordinator with St. Joseph's Engineering College since the year 2002 and is drawing salary of Rs. 98,228/- p.m. The said college is run by St. Joseph Educational Trust (in short "Trust"), whose Chairman is Shri B. Babu Manoharan. The appellant is filing his Income tax returns regularly. He has a bank account No. 482947133 with Indian Bank, Chennai in which there was a credit balance of Rs. 15,913/- on the date of attachment. ii) The Appellant had r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crores was distributed contains your name Shri/Smt. Shri P Ezhilpandian which shows that you have received the cash amount of Rs. 15,00,000/-. You also under sworn statement taken on 19/11/2016 has stated that you have received the cash amount of Rs. 15,00,000/-. This clearly establishes the fact that you have held the cash amount and also lent your name." 9. It was the case of the appellant that show cause are contrary to the factual position as it was pointed out by the Appellant in his sworn statement that the amount of Rs. 15 Lakhs was given to him to organize a Football tournament, which amount in turn was handed over by him to Mr. Sugumaran, Honorary Secretary, Chennai Football Association 10. In answer to question No. 12 of his statement, the Appellant stated as under: "As directed by the Chairman and Managing Director, Mr. Babu Manoharan, I have collected Rs. 15 Lakhs from Mr. Murali, Accountant and given to Mr. Sugumaran, Honorary Secretary, Chennai Football Association for organising S. Joseph's Football League Tournament for the years 2015-16 and 201617. I will furnish the receipt (Page no……..of the paper book) for the same shortly. Usually the spon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h property has been provided or paid out of the known sources of the individual; or (B) a transaction or an arrangement in respect of a property carried out or made in a fictitious name; or (C) a transaction or an arrangement in respect of a property where the owner of the property is not aware of, or, denies knowledge of, such ownership; (D) a transaction or an arrangement in respect of a property where the person providing the consideration is not traceable or is fictitious; Explanation.--For the removal of doubts, it is hereby declared that benami transaction shall not include any transaction involving the allowing of possession of any property to be taken or retained in part performance of a contract referred to in section 53-A of the Transfer of Property Act, 1882 (4 of 1882), if, under any law for the time being in force,-- i) consideration for such property has been provided by the person to whom possession of property has been allowed but the person who has granted possession thereof continues to hold ownership of such property; (ii) stamp duty on such transaction or arrangement has been paid; and (iii) the contract has been registered. 2(10) "ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w the Provisional Attachment order. The IO completely ignoring the replies given from time to time by the Appellant, passed the Attachment order dated 13/3/2017 under section 24(4)(a)(i) of the Act continuing the provisional attachment of the property already made under sub-section (3) of section 24 of the Act. 20. Para 6 of IO's order reproduces a part of the Appellant's statement as under: "As directed by the Chairman and Managing Director, Mr. Babu Manoharan, I have collected Rs. 15 Lakhs from Mr. Murali, Accountant and given to Mr. Sugumaran, Honorary Secretary, Chennai Football Association for organising St. Joseph's Football League Tournament for the years 2015-16 and 201617. I will furnish the receipt for the same shortly. Usually the sponsorship amount is paid in cheque, this time we have paid the amount in cash." 21. However, in Para 4 of the IO's order, he writes as under: "In response to the notice, the Benamidar had filed a reply, stating that the sum received by cash from through Shri Babu Manoharan, (beneficial owner) are his salary advance. His reply is not acceptable, because in the sworn statement recorded before the Assistant/Deputy Director of Income tax ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TR 515 & CIT v. Kelvinator India Ltd (2010) 320 ITR 561). 29. These statements would show that the money in question was no longer with the appellants and could not have been attached at the hand of appellants who were merely carriers of the amount, the said fact has not been denied either in the reply or during the course of hearing. 30. The Notice would show that it is mechanical in nature. In fact, all notices are identical except for the amount mentioned. It shows a lack of application of mind, thus making the jurisdiction assumed under section 24 is invalid. The ordinary citizens who are not involved under Benami Act cannot be harassed in this manner. The Authority must be aware that end of law, criminal liability is involved, thus, the authority must be very careful being sensitive matters. 31. The existence of the "benami" transaction has to be proved by the authorities i.e. the person who alleges the transaction (Sitaram Agarwal v. Subrata Chandra, (2008) 7 S.C.C. 716). The authorities have failed to discharge the burden of proof. The authority has purely gone on the premise that cash is transferred from one person to another, with an object to defeat, demonetization. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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