Benami properties
Guest
(Querist) 06 March 2012
This query is : Resolved
What exactly is the definition of a "Benami Property"? Is it legally permissible?
Can the state has the right to confiscate all such Benami Properties?"
ajay sethi
(Expert) 06 March 2012
we are not answeirng academic queries . do gooogle search
Adv.R.P.Chugh
(Expert) 06 March 2012
Show locus - get an answer !
Deepak Nair
(Expert) 06 March 2012
www.wikipedia.org.
Visit here to find out almost all things in the world.
A V Vishal
(Expert) 06 March 2012
Benami transaction means any transaction in which property is transferred to one person for a consideration paid or provided by another person.
All properties held benami shall be subject to acquisition by such authority, in such manner and after following such procedure as may be prescribed.
Guest
(Querist) 27 March 2012
With due respect to all the experts:-
Let me draw a parallel. My elder brother was detected with cancer. From Cal he was flown to Tata Memorial hosp Mumbai. He was operated upon and his right kidney removed.There after he was administered 5 Files of 2 Lac each Suten 10 drug in the name of molecular targeted therapy.I was there while he was operated upon and listened to the prognostics of the experts.None was willing to take a second opinion despite the patient's condition deteriorating on 2lac a file molecular targeted therapy.I lost my brother on 14 Oct last year within a year from the day he was diagnosed a cancer patient.
Experts are to prevent and not to act post confirmation of the disease.Our society is badly affected by the cancer. The one who engage a lawyer of any repute will face his/her wrath if one ventures to seek expert's opinion.To file a petition or to defend a case one is compelled to engage an advocate. There is no rate list. But it does not come free.My request would be to the experts to help the society to prevent systemic failure and not to wait for post mortem.
Secondly I had in a different thread gave a real case on limitation on time under Army Act 122 which had been much abused by the military authorities to protect especially the top officials to become Gen Tej...ender Singggg.Your beloved country is the sufferer.But I was given some spiritual advice.I think experts should lobby hard to restrict queries to lawyers only and not to all members.
Or else taking a second opinion is always a matter of life and death.Had the doctors at Tata Memorial taken one my brother would have been still alive.
prabhakar singh
(Expert) 31 March 2012
Visit the following page to satisfy your quest:...
http://www.vakilno1.com/bareacts/Benamiact/benami.htm
prabhakar singh
(Expert) 31 March 2012
The following would come in future::::
THE BENAMI TRANSACTIONS (PROHIBITION) BILL, 2011
A
BILL
to consolidate and amend the law relating to benami transactions, prohibit holding
property in benami and restrict right to recover or transfer property held benami, and
provide mechanism and procedure for confiscation of property held benami and for
matters connected therewith or incidental thereto.
BE it enacted by Parliament in the Sixty-second Year of the Republic of India as follows:—
CHAPTER I
PRELIMINARY
1. (1) This Act may be called the Benami Transactions (Prohibition) Act, 2011.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government may, by notification
in the Official Gazette, appoint, and different dates may be appointed for different provisions
of this Act and any reference in any such provision to the commencement of this Act shall be
construed as a reference to the coming into force of that provision.
Short title, ext e n t a n d c omme n c eme n t .
AS INTRODUCED IN LOK SABHA
Bill No. 56 of 2011
52
2. In this Act, unless the context otherwise requires,—
(a) “Adjudicating Authority” means the Adjudicating Authority appointed under
sub-section (1) of section 6 of the Prevention of Money-Laundering Act, 2002;
(b) “Administrator” means an Income-Tax Officer as defined in clause (25) of
section 2 of the Income-tax Act, 1961;
(c) “Appellate Tribunal” means the Appellate Tribunal established under section
25 of the Prevention of Money-Laundering Act, 2002;
(d) “Approving Authority” means a Joint Commissioner of Income-Tax as defined
in clause (28C) of section 2 of the Income-tax Act, 1961;
(e) “authority” means an authority referred to in section 7;
(f) “benami property” means any property which is the subject matter of a
benami transaction;
(g) “benami transaction” means,—
(A) a transaction or arrangement—
(a) where a property is transferred to, or is held by, a person for a
consideration provided, or paid by, another person; and
(b) the property is held for the immediate or future benefit, direct or
indirect, of the person providing the consideration, except when the property is
held by—
(i) a karta, or a member of a Hindu undivided family, as the
case may be, and the property is held for his benefit or benefit of
other members in the family; or
(ii) a person standing in a fiduciary capacity for the benefit of
another person towards whom he stands in such capacity and
includes a trustee, executor, partner, agent, director of a company or
legal adviser, a depository or a participant as an agent of a depository
under the Depositories Act, 1996 and any other person as may be
notified by the Central Government for this purpose;
(B) a transaction or arrangement in respect of a property carried out or
made in a fictitious name; or
(C) a transaction or arrangement in respect of a property where the owner
of the property is not aware of, or, denies knowledge of, such ownership;
(h) “benamidar” means a person or a fictitious person, as the case may be, in
whose name the benami property is transferred or held and includes a name lender;
(i) “beneficial owner” means a person, whether his identity is known or not, for
whose benefit the benami property is held by a benamidar;
(j) “fair market value” in relation to a property, means—
(i) the price that the property would ordinarily fetch on sale in the open
market on the relevant date; and
(ii) where the price referred to in sub-clause (i) is not ascertainable, such
price as may be determined in accordance with the rules made under this Act.
(k) “Initiating Officer” means an Assistant Commissioner of Income-tax as defined
in clause (9A) of section 2 of the Income-tax Act, 1961;
(l) “notification” means a notification published in the Official Gazette and the
expression “notified” shall be construed accordingly;
(m) “High Court” means—
(i) the High Court within the jurisdiction of which the aggrieved party
ordinarily resides or carries on business or personally works for gain; and
15 of 2003.
43 of 1961.
15 of 2003.
43 of 1961.
22 of 1996.
43 of 1961.
Definitions.
5
1 0
1 5
2 0
2 5
3 0
3 5
4 0
4 53
(ii) where the Government is the aggrieved party, the High Court within
the jurisdiction of which the respondent, or in a case where there are more than
one respondent, any of the respondents, ordinarily resides or carries on business
or personally works for gain;
(n) “person” includes—
(i) an individual;
(ii) a Hindu undivided family;
(iii) a company;
(iv) a firm (including a limited liability partnership under the Limited Liability
Partnership Act, 2008);
(v) an association of persons or a body of individuals, whether incorporated
or not;
(vi) every artificial juridical person, not falling within any of the preceding
sub-clauses.
Explanation.—For the purposes of this clause, an association of persons or a
body of individuals or an artificial juridical person shall be deemed to be a person,
whether or not such person or body or artificial juridical person was formed or
established or incorporated with the object of deriving income, profits or gains;
(o) “prescribed” means prescribed by rules made under this Act;
(p) “property” means property of any kind, whether movable or immovable,
tangible or intangible, and includes any right or interest in such property and where
the property is capable of conversion into some other form, then the property in such
converted form;
(q) “Schedule” means the Schedule appended to this Act;
(r) “Special Court” means a Court of Session designated as Special Court under
sub-section (1) of section 25;
(s) “transfer” includes sale, purchase or any other form of transfer of right, title,
possession or lien.
CHAPTER II
PROHIBITION OF BENAMI TRANSACTION
3. (1) No person shall, on and after the commencement of this Act, enter into any
benami transaction.
(2) Nothing contained in sub-section (1) shall apply to a benami transaction entered
into by any person, being an individual, in the name of his–
(a) spouse;
(b) brother or sister; or
(c) any lineal ascendant or descendant.
4. Any property, which is subject matter of benami transaction, not being a benami
transaction referred to in sub-section (2) of section 3, shall be liable to be confiscated by the
Central Government.
5. (1) No suit, claim or action to enforce any right in respect of any property held
benami against the person in whose name the property is held or against any other person
shall lie by, or, on behalf of, a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether
against the person in whose name the property is held, or, against any other person, shall be
allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner
of such property.
6 of 2009.
Prohibi t ion of
b e n ami t r a n s -
a c t i o n .
P r o p e r t y h e l d
benami liable to
confiscation.
P r o h i b i t i o n o f
right to recover
p r o p e r t y h e l d
b e n ami.
5
1 0
1 5
2 0
2 5
3 0
3 5
4 0
4 54
6. No person, being benamidar shall re-transfer the benami property held by him to
the beneficial owner or any other person acting on his behalf.
CHAPTER III
AUTHORITIES
7. The following shall be the authorities for the purposes of this Act, namely:—
(a) the Initiating Officer;
(b) the Approving Authority; and
(c) the Administrator.
8. (1) The authorities shall exercise all or any of the powers and perform all or any of the
functions conferred on, or, assigned, as the case may be, to it under this Act or the rules
framed thereunder in accordance with such directions as the Central Government may issue
for the exercise of powers and performance of the functions by all or any of the authorities.
(2) In issuing the directions or orders referred to in sub-section (1), the Central
Government may have regard to any one or more of the following criteria, namely:—
(a) territorial area;
(b) classes of persons;
(c) classes of cases; and
(d) any other criterion specified by the Central Government in this behalf.
9. (1) The authorities shall, for the purposes of this Act, have the same powers as are
vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit in respect of
the following matters, namely:—
(a) discovery and inspection;
(b) enforcing the attendance of any person and examining him on oath;
(c) compelling the production of books of account and other documents;
(d) issuing commissions;
(e) receiving evidence on affidavits; and
(f) any other matter which may be prescribed.
(2) For the purposes of this Act, any authority under this Act may requisition the
service of any police officer or of any officer of the Central Government or State Government
or of both to assist him for all or any of the purposes specified in sub-section (1), and it shall
be the duty of every such officer to comply with such requisition or direction.
10. The Initiating Officer or the Adjudicating Authority shall have power to require
any officer or authority of the Central Government or State Government or a local authority
or any person or authority who is responsible for registering and maintaining books of
account and other documents containing a record of any transaction relating to any property
or any other person to furnish such information in relation to such persons, points or
matters as in his opinion will be useful for or relevant to the purposes of this Act.
11. (1) Where any books of account or other documents are produced before the
authority in any proceedings under this Act and the authority in this behalf has reason to
believe that any of such books of account or other documents are required to be impounded
and retained for any inquiry under this Act, it may impound and retain such books of account
or other documents for a period not exceeding three months from the date of attachment
made by the Adjudicating Authority under sub-section (3) of section 15.
Prohibi t ion to
r e - t r ans f e r
prope r ty in
b e n ami d a r.
Authorities.
Jurisdiction of
authorities.
5 of 1908.
P owe r t o c a l l
f o r i n f o rma -
t i o n .
P owe r o f
a u t h o r i t y t o
impound docume n t s .
Powers of
authorities
regarding
summons,
production of
documents and
to give
evidence, etc.
5
1 0
1 5
2 0
2 5
3 0
3 5
4 05
(2) The person, from whom the books of account and other documents were impounded,
shall be entitled to obtain copies of the books of account or other documents impounded
under sub-section (1).
(3) On the expiry of the period specified under sub-section (1), the books of account
and other documents shall be returned to the person from whom such books of account or
other documents were impounded unless the Approving Authority or Adjudicating Authority
permits retention of such books of account and other documents beyond the said period.
12. The Initiating Officer, after obtaining prior approval of the Approving Authority,
shall have power to cause to be conducted any inquiry or investigation in respect of any
person, place, property, assets, documents, books of account or any other relevant matters
and it shall be competent upon him to exercise the powers conferred under sub-section (1) of
section 9.
CHAPTER IV
ATTA C H M E N T, A D J U D I C AT I O N A N D C O N F I S C AT I O N
13. (1) Where the Initiating Officer, on the basis of material in his possession, has
reason to believe that any person, not being a person referred in sub-section (2) of section
3, is a benamidar in respect of a property, he may, after recording reasons in writing, issue a
notice to such person to show cause within such time as may be specified in the notice why
such property should not be treated as benami property.
(2) Where a notice under sub-section (1) specifies any property as being held by a
benamidar referred to in that sub-section, a copy of the notice shall also be served upon
such other person who is a beneficial owner.
(3) Where the Initiating Officer is of the opinion that the person in possession of the
property held benami may alienate such property during the period specified in the notice,
he may, with the previous approval of the Approving Authority, by order in writing, attach
provisionally such property in the manner as may be prescribed.
(4) The Initiating Officer, after making such inquires and calling for such reports or
evidence as he deems fit and taking into account all relevant materials, shall, within a period
of ninety days from the date of issue of notice under sub-section (1),—
(a) where the provisional attachment has been made under sub-section (3),—
(i) pass an order continuing the provisional attachment of the property
with the prior approval of the Approving Authority, till the date of the order
made by the Adjudicating Authority under sub-section (3) of section 15; or
(ii) revoke the provisional attachment of the property with the prior
approval of the Approving Authority;
(b) where provisional attachment has not been made under sub-section (3),—
(i) pass an order provisionally attaching the property till the date of order
made by the Adjudicating Authority under sub-section (3) of section 15; or
(ii) decide not to attach the property as specified in the notice, with the
prior approval of the Approving Authority.
(5) Where the Initiating Officer passes an order continuing the provisional attachment
of the property under sub-clause (i) of clause (a) or passes an order provisionally attaching
the property under sub-clause (i) of clause (b) of sub-section (4), he shall, within fifteen days
from such attachment, draw up a statement of the case and refer it to the Adjudicating
Authority.
Power to cause
inquiry or
investigation.
Notice and
a t t a chment of
property
involved in
prohibited
b e n a m i
t r ans a c t ion.
5
1 0
1 5
2 0
2 5
3 0
3 5
4 0
4 56
14. (1) A notice under sub-section (1) of section 13 may be served on the person
named therein either by post or as if it were a summons issued by a Court under the Code of
Civil Procedure, 1908.
(2) Any notice referred to in sub-section (1) may be addressed—
(i) in case of an individual, to such individual;
(ii) in the case of a firm, to the managing partner or the manager of the firm;
(iii) in the case of a Hindu undivided family, to karta or any member of such
family;
(iv) in the case of a company, to the principal officer thereof;
(v) in the case of any other association or body of individuals, to the principal
officer or any member thereof;
(vi) in the case of any other person (not being an individual), to the person who
manages or controls his affairs.
15. (1) On receipt of a reference under sub-section (5) of section 13, the Adjudicating
Authority shall serve notices, to furnish such documents, particulars or evidence as is
considered necessary on a date to be specified therein, on the following person, namely:—
(a) the person specified as a benamidar therein;
(b) any person referred to as the beneficial owner therein or identified as such;
(c) any interested party, including a banking company;
(d) any person who has made a claim in respect of the property.
(2) Where such property is held jointly by more than one person, such notice shall be
served to all persons holding such 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 he 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 person who claims to be the owner of such property, and,
thereafter, pass an order—
(i) holding the property not to be a benami property and revoking the attachment
order; or
(ii) holding the property to be a benami property and confirming the attachment
order.
(4) Where the Adjudicating Authority is satisfied that some part of the properties in
respect of which reference has been made to him is benami property, but is not able to
specifically identify such part, he shall record a finding to the best of his judgment as to
which part of properties is held benami.
(5) Where in the course of proceedings before him, the Adjudicating Authority has
reason to believe that a property, other than a property referred to him by the Initiating
Officer is benami property, it shall provisionally attach such property and such property
shall be deemed to be a property referred to it on the date of receipt of the reference under
sub-section (5) of section 13.
5 of 1908.
Manner of
service of
n o t i c e .
Adjudication
of benami
p r o p e r t y.
5
1 0
1 5
2 0
2 5
3 0
3 5
4 07
(6) The Adjudicating Authority may, at any stage of the proceedings, either on the
application of any party, or suo motu, strike out the name of any party improperly joined or
add the name of any person whose presence before the Adjudicating Authority may be
necessary to enable it to adjudicate upon and settle all the questions involved in the
reference.
(7) No order under sub-section (3) shall be passed after the expiry of one year from the
end of the month in which the reference under section 13 was received.
16. (1) Where any property is attached under sub-section (3) of section 15, the
Adjudicating Authority shall, after giving an opportunity of being heard to the person
concerned, make an order confiscating the property held to be a benami property.
(2) Nothing in sub-section (1) shall apply to a property held or acquired by a person
from the benamidar for adequate consideration, without his having knowledge of the
benami transaction.
(3) Where an order of confiscation has been made under sub-section (1), all the rights
and title in such property shall vest absolutely in the Central Government free of all
encumbrances and no compensation shall be payable in respect of such confiscation.
(4) Any right of any third person created in such property with a view to defeat the
purposes of this Act shall be null and void.
(5) Where no order of confiscation is made upon the proceedings under this Act
attaining finality, no claim shall lie against the Government.
17. (1) The Administrator shall have the power to receive and manage the property, in
relation to which an order of confiscation under sub-section (1) of section 16 has been
made, in such manner and subject to such conditions, as may be prescribed.
(2) The Central Government may, by order published in the Official Gazette, notify as
many of its officers as it thinks fit, to perform the functions of an Administrator.
(3) The Administrator shall also take such measures, as the Central Government may
direct, to dispose of the property which is vested in the Central Government under section 16.
18. (1) Where an order of confiscation in respect of a property under sub-section (1)
of section 16 has been made, the Administrator shall proceed to take the possession of such
property.
(2) The Administrator shall,—
(a) by notice in writing, order within seven days of the date of the service of
notice any person, who may be in possession of the benami property, to surrender or
deliver possession thereof to him or any other person duly authorised in writing by
him in this behalf;
(b) in the event of non-compliance of the order referred to in clause (a), or if in his
opinion, taking over of immediate possession is warranted, for the purpose of forcibly
taking over possession, requisition the service of any police officer to assist him and
it shall be the duty of such officer to comply with such requisition.
CHAPTER V
APPELLATE TRIBUNAL
19. Subject to the provisions of this Act, the Appellate Tribunal established under
section 25 of the Prevention of Money-Laundering Act, 2002 shall be the Appellate Tribunal
for the purposes of this Act and the said Appellate Tribunal shall exercise the powers
conferred on it by or under this Act.
20. (1) Any person aggrieved by an order of the Adjudicating Authority may prefer an
appeal in such form and along with such fee, as may be prescribed, to the Appellate Tribunal
against the order passed by the Adjudicating Authority under section 15 within forty-five
days from the date of such order.
Confiscation
and vesting of
b e n a m i
p r o p e r t y.
Management
of properties
confiscated
under this Act.
P o s s e s s i o n o f
p r o p e r t y.
E s t a b l i s hme n t
o f Ap p e l l a t e
Tribunal.
15 of 2003.
Appeals to
Appe l l a t e
Tribunal.
5
1 0
1 5
2 0
2 5
3 0
3 5
4 0
4 58
(2) The Appellate Tribunal may entertain any appeal after the said period of forty-five
days, if it is satisfied that the appellant was prevented by sufficient cause from filing the
appeal in time.
(3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after
giving the parties to the appeal an opportunity of being heard, pass such orders thereon as
it thinks fit.
(4) The Appellate Tribunal, as far as possible, may hear and decide such appeal within
a period of two years from the last date of the month in which the appeal is filed.
21. An Appellate Tribunal shall have the power—
(a) to determine a case finally, where the evidence on record is sufficient;
(b) to take additional evidence or to require such evidence to be taken by the
Adjudicating Authority, where the Adjudicating Authority has refused to admit
evidence, which ought to have been admitted;
(c) to require any document to be produced or any witness to be examined for
the purposes of proceeding before it;
(d) to frame issues which appear to the Appellate Tribunal essential for
adjudication of the case and refer them to the Adjudicating Authority for determination;
(e) to pass final order and affirm, vary or reverse an order of adjudication passed
by the Adjudicating Authority and pass such order as may be necessary to meet the
ends of justice.
22. (1) The Appellate Tribunal or the Adjusticating Authority or as the case may be,
the initiating Officer, in order to rectify any mistake apparent on the face of the record, may
amend any order made by it, within a period of one year from the end of the month in which
the order was passed.
(2) No amendment shall be made under sub-section (1) if such amendment is likely to
affect any person prejudicially, unless he has been given notice of the intention to do so and
has been allowed an opportunity of being heard.
23. (1) A person preferring an appeal to the Appellate Tribunal under this Act may
either appear in person or take the assistance of an authorised representative of his choice to
present his case before the Appellate Tribunal.
Explanation.—For the purposes of this sub-section, the expression “authorised
representative” shall have the same meaning as assigned to it under sub-section (2) of
section 288 of the Income-tax Act, 1961.
(2) The Central Government may authorise one or more authorised representatives or
any of its officers to act as presenting officers and every person so authorised may present
the case with respect to any appeal before the Appellate Tribunal.
24. (1) Any party aggrieved by any decision or order of the Appellate Tribunal may file
an appeal to the High Court within one hundred and twenty days from the date of
communication of the decision or order of the Appellate Tribunal to him on any question of
law arising out of such order.
(2) The High Court may entertain any appeal after the said period of one hundred and
twenty days, if it is satisfied that the appellant was prevented by sufficient cause from filing
the appeal within the period specified in sub-section (1).
(3) Where the High Court is satisfied that a substantial question of law is involved in
any case, it shall formulate that question.
(4) The appeal shall be heard only on the question so formulated, and the respondents
shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question.
(5) Nothing in this sub-section shall be deemed to take away or abridge the power of
the court to hear, for reasons to be recorded, the appeal on any other substantial question of
law not formulated by it, if it is satisfied that the case involves such question.
Powers of
Appe l l a t e
Tribunal.
R e c t i f i c a t i o n
of mistakes.
43 of 1961.
Right to
representation.
Appeal to High
Cour t .
5
1 0
1 5
2 0
2 5
3 0
3 5
4 0
4 5
5 09
(6) The High Court shall decide the question of law so formulated and deliver such
judgment thereon containing the grounds on which such decision is founded and may
award such cost as it deems fit.
(7) The High Court may determine any issue which—
(a) has not been determined by the Appellate Tribunal; or
(b) has been wrongly determined by the Appellate Tribunal, by reason of a
decision on such question of law as is referred to in sub-section (1).
(8) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure,
1908, relating to appeals to the High Court shall, as far as may be, apply in the case of appeals
under this section.
CHAPTER VI
SPECIAL COURTS
25. (1) The Central Government, in consultation with the Chief Justice of the High
Court, shall for trial of an offence punishable under this Act, by notification, designate one
or more Courts of Session as Special Court or Special Courts for such area or areas or for
such case or class or group of cases as may be specified in the notification.
(2) While trying an offence under this Act, a Special Court shall also try an offence
other than an offence referred to in sub-section (1), with which the accused may, under the
Code of Criminal Procedure, 1973, be charged at the same trial.
(3) The Special Court shall not take cognizance of any offence punishable under this
Act except upon a complaint in writing made by—
(i) the authority; or
(ii) any officer of the Central Government or State Government authorised in
writing in this behalf by the Central Government by a general or special order made in
this behalf by that Government.
(4) Every trial under this section shall be conducted as expeditiously as possible and
an endeavour shall be made to conclude the trial within six months from the date of filing of
the complaint.
26. (1) Save as otherwise provided in this Act, the provisions of the Code of Criminal
Procedure, 1973, shall apply to the proceedings before a Special Court and for the purposes
of the said provisions, the Special Court shall be deemed to be a Court of Session and the
persons conducting the prosecution before the Special Court, shall be deemed to be a public
prosecutor:
Provided that the Central Government may also appoint for any case or class or group
of cases a Special Public Prosecutor.
(2) A person shall not be qualified to be appointed as a Public Prosecutor or a Special
Public Prosecutor under this section unless he has been in practice as an advocate for not
less than seven years, under the Union or a State.
(3) Every person appointed as a Public Prosecutor or a Special Public Prosecutor
under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u)
of section 2 of the Code of Criminal Procedure, 1973 and the provisions of that Code shall
have effect accordingly.
CHAPTER VII
OFFENCES AND PENALTIES
27. (1) Where any person enters into a benami transaction, not being a benami
transaction reffered to in sub-section (2) of section 3, in order to defeat the provisions of any
law or to avoid payment of statutory dues or to avoid payment to creditors, the beneficial
owner, benamidar and any other person who abets or induces any person to enter into such
benami transaction, shall be guilty of the offence of benami transaction.
Special Courts.
2 of 1974.
Application of
Code of
Criminal
Procedure,
1 9 7 3 t o
proceedings
before Special
Cour t .
2 of 1974.
Pena l ty for
b e n a m i
t r ans a c t ion.
2 of 1974.
5 of 1908.
5
1 0
1 5
2 0
2 5
3 0
3 5
4 0
4 510
(2) Whoever is found guilty of the offence of benami transaction referred to in subsection (1) shall be punishable with imprisonment for a term which shall not be less than six
months, but which may extend to two years and shall also be liable to fine which may extend
to twenty-five per cent. of the fair market value of the property.
28. Any person who wilfully gives false information to any authority or furnishes any
false document in any proceeding under this Act, shall be punishable with imprisonment for
a term which shall not be less than three months but which may extend to two years or with
fine which may extend to ten per cent. of the fair market value of the property.
29. No prosecution shall be instituted against any person in respect of any offence
under section 27 without the previous sanction of the Approving Authority.
CHAPTER VIII
MISCELLANEOUS
30. Where, after the issue of a notice under section 13, any property referred to in the
said notice is transferred by any mode whatsoever, such transfer shall, for the purposes of
the proceedings under this Act, be ignored and if such property is subsequently confiscated
by the Central Government under section 16 then, the transfer of such property shall be
deemed to be null and void.
31. (1) The Central Government may, by notification, exempt any property or class of
properties from the operation of this Act.
(2) Every notification issued under sub-section (1) shall be laid before each House of
Parliament.
32. (1) The Central Government may, from time to time, issue such orders, instructions
and directions to the authorities as it may deem fit for the proper administration of this Act
and such authorities and all other persons employed in execution of this Act shall observe
and follow such orders, instructions and directions of the Central Government.
(2) No orders, instructions or directions under sub-section (1) shall be issued so as
to—
(a) require any authority to decide a particular case in a particular manner; or
(b) interfere with the discretion of the Adjudicating Authority in exercise of his
functions.
33. No finding of any officer or authority under any other law shall be conclusive for
the purposes of any proceedings under this Act.
34. The provisions of this Act shall be in addition to, and not, save as hereinafter
expressly provided, in derogation of any other law for the time being in force.
35. Save as otherwise provided under this Act, no order passed or declaration made
under this Act shall be appealable except as provided therein and no civil court shall have
jurisdiction in respect of any matter which the Appellate Tribunal or any Authority is
empowered by or under this Act to determine, and no injunction shall be granted by any
court or other authority in respect of any action taken or to be taken in pursuance of any
power conferred by or under this Act.
36. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an
offence under this Act shall be non-cognizable and bailable.
Pena l ty for
false informat i o n .
Certain
transfers to be
null and void.
E x emp t i o n .
Power of
Central
Gove rnment
to issue
directions, etc.
Findings under
other laws not
conclusive for
proceedings
under this Act.
Application of
other laws not
barred.
Bar of
jurisdiction.
Offences to 2 of 1974.
be noncognizable.
Previous
s anc t ion.
5
1 0
1 5
2 0
2 5
3 0
3 5
4 011
37. (1) Where a person committing a contravention of any of the provisions of this
Act or of any rule, direction or order made thereunder is a company, every person who, at the
time the contravention was committed, was in charge of, and was responsible to, the company,
for the conduct of the business of the company as well as the company, shall be deemed to
be guilty of the contravention and shall be liable to be proceeded against and punished
accordingly.
(2) Nothing contained in sub-section (1), shall render any such person liable to
punishment if he proves that the contravention took place without his knowledge.
(3) Notwithstanding anything contained in sub-section (1), where a contravention of
any of the provisions of this Act or of any rule, direction or order made thereunder has been
committed by a company and it is proved that the contravention has taken place with the
consent or connivance of, or is attributable to any neglect on the part of any director,
manager, secretary or other officer of the company, such director, manager, secretary or other
officer shal1 also be deemed to be guilty of the contravention and shall be liable to be
proceeded against and punished accordingly.
Explanation.—For the purpose of this section,—
(i) “company” means any body corporate and includes a firm or other association
of individuals; and
(ii) “director”, in relation to a firm, means a partner in the firm.
38. No notice, summons, order, document or other proceeding, furnished or made or
issued or taken or purported to have been furnished or made or issued or taken in pursuance
of any of the provisions of this Act shall be invalid, or shall be deemed to be invalid merely
by reason of any mistake, defect or omission in such notice, summons, order, document or
other proceeding if such notice, summons, order, document or other proceeding is in substance
and effect in conformity with or according to the intent and purpose of this Act.
39. No prosecution, suit or other proceeding shall lie against the Government or any
officer of the Government or the Appellate Tribunal or the Adjudicating Authority established
under this Act, for anything done or intended to be done in good faith under this Act.
40. (1) Every suit or proceeding in respect of a benami transaction pending in any
Court (other than the High Court) or Tribunal or before any authority on the date of the
commencement of this Act shall stand transferred to the Appellate Tribunal or the Adjudicating
Authority, as the case may be, referred to in this Act having jurisdiction in the matter.
(2) Where any suit, or other proceeding stands transferred from any court (other than
High Court) or Tribunal or other authority to the Appellate Tribunal under sub-section (1),—
(a) the court, Tribunal or other authority shall, as soon as may be, after such
transfer, forward the records of such suit, or other proceeding to the Appellate Tribunal;
(b) the Appellate Tribunal may, on receipt of such records, proceed to deal with
such suit, or other proceeding, so as may be, in the same manner as in the case of a
reference made under sub-section (5) of section 15, from the stage which was reached
before such transfer or from any earlier stage or de novo as the Appellate Tribunal may
deem fit.
41. (1) Where a person dies during the course of any proceeding under this Act, any
proceeding taken against the deceased before his death shall be deemed to have been taken
against the legal heir and may be continued against the legal heir from the stage at which it
stood on the date of the death of the deceased.
(2) Any proceeding which could have been taken against the deceased if he had
survived, may be taken against the legal heir and all the provisions of this Act shall apply
accordingly.
Notice, etc.,
not to be
invalid on
c e r t a in
grounds.
P r o t e c t i o n o f
action taken in
good faith.
T r a n s f e r o f
pending cases.
Legal heir.
Of f e n c e s b y
companies.
5
1 0
1 5
2 0
2 5
3 0
3 5
4 0
4 512
(3) Where any property of a person has been held benami under section 15, then it
shall be lawful for the legal heir of such person to prefer an appeal to the Appellate Tribunal,
in place of such person and the provisions of section 20 shall, so far as may be, apply, or
continue to apply, to such appeal.
42. The provisions of this Act shall have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force.
43. (1) The Central Government may, by notification, make rules for carrying out the
provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such
rules may provide for all or any of the following matters, namely:—
(a) determination of the price where the price is not ascertainable under clause (j)
of section 2;
(b) the powers and functions to be exercised by the authority under section 8;
(c) any other matter under sub-section (1) of section 9;
(d) the manner of provisional attachment of the property under sub-section (3)
of section 13;
(e) the manner to receive and manage property under sub-section (1) of section 17;
(f) the form in which appeal shall be filed the fee for filing the appeal under subsection (1) of section 20.
44. Every rule made under this Act shall be laid, as soon as may be after it is made,
before each House of Parliament, while it is in session, for a total period of thirty days which
may be comprised in one session or in two or more successive sessions, and if, before the
expiry of the session immediately following the session or the successive sessions aforesaid,
both Houses agree in making any modification in the rule or both Houses agree that the rule
should not be made, the rule shall thereafter have effect only in such modified form or be of
no effect, as the case may be; so, however, that any such modification or annulment shall be
without prejudice to the validity of anything previously done under that rule.
45. (1) If any difficulty arises in giving effect to the provisions of this Act, the Central
Government may, by order, published in the Official Gazette, make such provisions not
inconsistent with the provisions of this Act as may appear to be necessary for removing the
difficulty.
(2) No order shall be made under this section after the expiry of two years from the
commencement of this Act.
(3) Every order made under this section shall be laid, as soon as may be after it is made,
before each House of Parliament.
46. (1) The Benami Transactions (Prohibition) Act, 1988 is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken or purported to
have been done or taken including any rule, notification, inspection, order or notice made or
issued or any appointment, confirmation or declaration made or any licence, permission,
authorisation, exemption granted or any document or instrument executed or any direction
given under the Act hereby repealed shall, in so far as it is not inconsistent with the provisions
of this Act, be deemed to have been done or taken under the corresponding provision of this
Act.
(3) Notwithstanding the repeal of section 281A of the Income-tax Act, 1961, the operation
of the said section shall continue in the State of Jammu and Kashmir.
47. The enactment specified in the Schedule is hereby amended to the extent and in
the manner as given below:—
Overriding
effect of Act.
Power to make
rules.
Rules to be
laid before
Pa r l i ament .
Power to
r emo v e
difficulties.
Repeal and 45 of 1988.
saving.
43 of 1961.
Amendment of
e n a c tme n t .
5
1 0
1 5
2 0
2 5
3 0
3 5
4 0
4 5THE SCHEDULE
(See section 47)
AMENDMENTS TO THE PREVENTION OF MONEY-LAUNDERING ACT, 2002
(15 OF 2003)
1. In section 6,—
(i) in sub-section (1), after the words “conferred by or under this Act’’, the
words, brackets and figures “or the Benami Transactions (Prohibition) Act, 2011 or
any other law for the time being in force’’ shall be inserted;
(ii) in sub-section (15), after the words “other provisions of this Act’’, the
words, brackets and figures “or the Benami Transactions (Prohibition) Act, 2011 or
any other law for the time being in force,’’ shall be inserted.
2. In section 11, in sub-section (1), after the words “purposes of this Act”, the words,
brackets and figures “or the Benami Transactions (Prohibition) Act, 2011 or any other law for
the time being in force’’ shall be inserted.
3. In section 25, after the words “authorities under this Act’’, the words, brackets and
figures “or the Benami Transactions (Prohibition) Act, 2011 or any other law for the time
being in force’’ shall be inserted.
4. In section 35,—
(i) in sub-section (1), after the words “other provisions of this Act’’, the words,
brackets and figures “or the Benami Transactions (Prohibition) Act, 2011 or any other
law for the time being in force’’ shall be inserted;
(ii) in sub-section (2), after the words “discharging its functions under this
Act’’, the words, brackets and figures “or the Benami Transactions (Prohibition) Act,
2011 or any other law for the time being in force’’ shall be inserted;
(iii) in sub-section (3), after the words “under this Act”, the words, brackets
and figures “or the Benami Transactions (Prohibition) Act, 2011 or any other law for
the time being in force’’ shall be inserted.
13STATEMENT OF OBJECTS AND REASONS
The Benami Transactions (Prohibition) Act, 1988 was enacted to prohibit benami
transactions and the right to recover property held benami. However, the said Act, inter alia,
provides that—(a) all the properties held benami shall be subject to acquisition by such
authority in such manner and after following such procedure as may be prescribed; (b) no
amount shall be payable for the acquisition of any property held benami; (c) the purchase of
property by any person in the name of his wife or unmarried daughter for their benefit would
not be benami transaction; (d) the securities held by a depository as registered owner under
the provisions of the Depositories Act, 1996 or participant as an agent of a depository would
not be benami transactions.
2. During the process of formulating the rules for implementing certain provisions of
the Act, it was found that the provisions of the aforesaid Act are inadequate to deal with
benami transactions as the Act, inter alia,—(i) does not contain any specific provision for
vesting of confiscated property with the Central Government; (ii) does not have any provision
for an appellate mechanism against an action taken by the authorities under the Act, while
barring the jurisdiction of a Civil Court; (iii) does not confer the powers of the Civil Court
upon the authorities for its implementation.
3. In view of the circumstances stated above, a comprehensive legislation, in place of
the Benami Transaction (Prohibition) Act, 1988 has become necessary in order to prohibit
holding property in benami and restrict right to recover or transfer property held benami and
also to provide a mechanism and procedure for confiscation of property held benami.
4. It is, therefore, felt necessary to repeal the Benami Transactions (Prohibition) Act,
1988 and enact a new comprehensive legislation to deal with benami transactions. The
Benami Transactions (Prohibition) Bill, 2011, inter alia, provides for the following,
namely:—
(i) it prohibits benami transactions by any person, except in the case of benami
transactions entered into in the name of spouse, brother or sister or any lineal ascendant
or descendant;
(ii) it provides that Benami property arising out of prohibited Benami transaction
is liable to confiscation by the Central Government and such property shall vest
absolutely in the Central Government without paying any compensation;
(iii) it prohibits right of the benamidar to recover property held benami;
(iv) it provides that the Initiating Officer, the Approving Authority and the
Administrator shall be the authorities for the purposes of the Bill;
(v) it provides that the Adjudicating Authority and the Appellate Tribunal
established under the Prevention of Money-Laundering Act, 2002 shall respectively
be the Adjudicating Authority and the Appellate Tribunal for the purposes of the Bill
and any person aggrieved by an order of Adjudicating Authority may prefer an appeal
to the Appellate Tribunal;
(vi) it provides that any party aggrieved by any decision or order of the Appellate
Tribunal may file an appeal to the High Court on any question of law;
(vii) it enables the Central Government, in consultation with the Chief Justice of
the High Court , to designate one or more Courts of Session as Special Court or Special
Courts for the purpose of the Bill;
1415
(viii) it provides penalty for entering into prohibited benami transactions and
for furnishing any false documents in any proceeding under the Bill;
(ix) it provides for transfer of any suit or proceeding in respect of a benami
transaction pending in any Court (other than High Court) or Tribunal or before any
authority to the Appellate Tribunal as provided in the Bill;
(x) it also proposes to make consequential amendments in the Prevention of
Money-Laundering Act, 2002.
5. The Notes on clauses explain in detail various provisions in the Bill.
6. The Bill seeks to achieve the above objectives.
NEW DELHI; PRANAB MUKHERJEE.
The 3rd August, 2011
prabhakar singh
(Expert) 31 March 2012
The above pdf can be had from...
http://www.prsindia.org/uploads/media/Benami/Benami%20Transaction%20(Prohibition)%20Bill.%202011.pdf
Guest
(Querist) 01 April 2012
Dear Sri Prabhakar
Thanks for the post though most of the thing has gone overboard which is obvious as I am neither law qualified nor exposed earlier to such a deal.
With my limited exposure with the sub-registrar at Malkajgiri to obtain a deed for my property for the bank to get a student loan I observed:
That all property transactions are to be registered through sub-registrar.
That both parties are to be physically present before the Sub-registrar to execute transfer.
That there has to be two witnesses from the same area with their identities duly verified by the sub-registrar's office.
Is there a provision to prosecute all those who stood witnesses to the deal?
Is there a provision to prosecute the Sub-registrar without whose help no transaction any property can take place?
Is there a provision that credentials of the witnesses as well as parties involved in those benami operations are brought to book at the initial stage by the sub-registrar himself?
Is there a provision a provision the advocates or the lawyers who were party to those benami operations be brought to book.
Finally has the law is in force?
