(1). AMENDMENT TO THE BENAMI TRANSACTIONS
(PROHIBITION) ACT, 1988 (45 OF 1988)[1]
THROUGH THE DEPOSITORIES ACT, 1996
PART
V
AMENDMENT TO THE BENAMI
TRANSACTIONS (PROHIBITION) ACT, 1988 (45 OF 1988)
Amendment In section 3,
for sub-section (2), the following sub-section shall be substituted, namely:—
“(2) Nothing in
sub-section (1) shall apply to-
(a) the purpose of property by any person in the
name of his wife or unmarried daughter and it shall be presumed, unless the
contrary is proved, that the said property had been purchased for the benefit
of the wife or the unmarried daughter;
(b) the securities held by a-
(i) depositary as registered owner under
sub-section (1) of section 10 of the Depositories Act, 1996.
(ii) participant as an agent of a depositary.
Explanation.- The expression “depository” and
“Participants” shall have the meanings respectively assigned to them in clauses
(e) and (g) of sub-section (1) of
section 2 of the Depositories Act, 1996.”
(2) THE BENAMI TRANSACTIONS (PROHIBITION)
AMENDMENT ACT, 2016 (43
OF 2016)[2]:
An
Act further to amend the Benami Transactions (Prohibition) Act, 1988.
BE it
enacted by Parliament in the Sixty-seventh Year of the Republic of India as follows:—
1. Short title and Commencement
(1) This
Act may be called the Benami Transactions (Prohibition) Amendment Act,
2016.
(2) 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.
2. Insertion of new heading before section 1
In the Benami Transactions
(Prohibition) Act, 1988 (45 of 1988) (hereinafter referred to as the principal
Act), before section 1, the following heading shall be inserted, namely:—
‘‘CHAPTER
I
PRELIMINARY.’’
3. Amendment of section 1
In section 1 of the principal Act,
for sub-section (1), the following sub-section shall be substituted, namely:—
"(1) This Act may be called the
Prohibition of Benami Property Transactions Act, 1988 (45 of 1988).".
4. Substitution of new section for section 2.
Definitions
For section 2 of the principal Act,
the following section shall be substituted, namely:—
‘2. In this Act, unless the context
otherwise requires,—
(1) "Adjudicating Authority" means the
Adjudicating Authority appointed under section 7;
(2) "Administrator" means an Income-tax
Officer as defined in clause (25) of section 2 of the Income-tax Act,
1961 (43 of 1961);
(3) "Appellate Tribunal" means the
Appellate Tribunal established under section 30;
(4) "Approving Authority" means an
Additional Commissioner or a Joint Commissioner as defined in clauses
(1C) and (28C) respectively of section 2 of the Income-tax Act, 1961 (43
of 1961);
(5) "attachment" means the prohibition
of transfer, conversion, disposition or movement of property, by an
order issued under this Act;
(6) "authority" means an authority
referred to in sub-section (1) of section 18;
(7) "banking company" means a company to
which the provisions of the Banking Regulation Act, 1949 (10 of 1949),
applies and includes any bank or banking institution referred to in
section 51 of that Act;
(8) "benami property" means any
property which is the subject matter of a benami transaction and
also includes the proceeds from such property;
(9) "benami transaction" means,—
(A) a
transaction or an arrangement—
(a) where a property is transferred to, or is held
by, a person, and the consideration for such property has been provided,
or paid by, another person; and
(b) the property is held for the immediate or
future benefit, direct or indirect, of the person who has provided 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 and the consideration
for such property has been provided or paid out of the known sources of
the Hindu undivided family;
(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, director of a company, a
depository or a participant as an agent of a depository under the
Depositories Act, 1996 (22 of 1996) and any other person as may be
notified by the Central Government for this purpose;
(iii) any person being an individual in the name of
his spouse or in the name of any child of such individual and the
consideration for such property has been provided or paid out of the
known sources of the individual;
(iv) any person in the name of his
brother or sister or lineal ascendant or descendant, where the names of
brother or sister or lineal ascendant or descendant and the individual
appear as joint-owners in any document, and the consideration for such
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 53A 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.
(10) "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 person who lends his name;
(11) "Bench"
means a Bench of the Adjudicating Authority or the Appellate Tribunal, as the
case may be;
(12) "beneficial
owner" means a person, whether his identity is known or not, for whose
benefit the benami property is held by a benamidar;
(13) "Board"
means the Central Board of Direct Taxes constituted under the Central Boards of
Revenue Act, 1963 (54 of 1963);
(14) "director"
shall have the same meaning as assigned to it in clause (34) of section 2 of
the Companies Act , 2013 (18 of 2013);
(15) "executor"
shall have the same meaning as assigned to it in clause (c) of section 2 of the
Indian Succession Act, 1925 (39 of 1925);
(16) "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 date of the transaction; and
(ii) where the price referred to in sub-clause (i)
is not ascertainable, such price as may be determined in accordance with such
manner as may be prescribed;
(17)
"firm" shall have the same meaning as assigned to it in section 4 of the
Indian Partnership Act, 1932 (9 of 1932) and shall include a limited liability
partnership as defined in the Limited Liability Partnership Act, 2008 (6 of
2009);
(18)
"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
(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;
(19) "Initiating
Officer" means an Assistant Commissioner or a Deputy Commissioner as
defined in clauses (9A) and (19A) respectively of section 2 of the Income-tax Act,
1961 (43 of 1961);
(20) "Member"
means the Chairperson or the Member of the Adjudicating Authority or the
Appellate Tribunal, as the case may be;
(21) "notification"
means a notification published in the Official Gazette and the expression
"notified" shall be construed accordingly;
(22)
"partner" shall have the same meaning as assigned to it in section 4
of the Indian Partnership Act, 1932 (9 of 1932), and shall include,—
(a) any person who, being a minor, has been
admitted to the benefits of partnership; and
(b) a
partner of a limited liability partnership formed and registered under the
Limited Liability Partnership Act, 2008 (6 of 2009);
(23) "partnership"
shall have the same meaning as assigned to it in section 4 of the Indian
Partnership Act, 1932 (9 of 1932), and shall include a limited liability
partnership formed and registered under the Limited Liability Partnership Act,
2008 (6 of 2009);
(24)
"person" shall include—
(i) an individual;
(ii)
a Hindu undivided family;
(iii)
a company;
(iv)
a firm;
(v) an
association of persons or a body of individuals, whether incorporated or not;
(vi)
every artificial juridical person, not falling under sub-clauses (i) to (v);
(25) "prescribed"
means prescribed by rules made under this Act;
(26)
"property" means assets of any kind, whether movable or immovable, tangible
or intangible, corporeal or incorporeal and includes any right or interest or
legal documents or instruments evidencing title to or interest in the property and
where the property is capable of conversion into some other form, then the property
in the converted form and also includes the proceeds from the property;
(27) "public
financial institution" shall have the same meaning as assigned to it in
clause (72) of section 2 of the Companies Act, 2013 (18 of 2013);
(28) "Special
Court" means a Court of Session designated as Special Court under
sub-section (1) of section 50;
(29)
"transfer" includes sale, purchase or any other form of transfer of right,
title, possession or lien;
(30)
"trustee" means the trustee as defined in the section 3 of the Indian
Trusts Act, 1882 (2 of 1882);
(31) words
and expressions used herein and not defined in this Act but defined in the
Indian Trusts Act, 1882 (2 of 1882), the Indian Succession Act, 1925 (39 of
1925), the Indian Partnership Act, 1932 (9 of 1932), the Income-tax Act, 1961
(43 of 1961), the Depositories Act, 1996 (22 of 1996), the Prevention of
Money-Laundering Act, 2002 (15 of 2003), the Limited Liability Partnership Act,
2008 (6 of 2009) and the Companies Act, 2013 (18 of 2013), shall have the same
meanings respectively assigned to them in those Acts.’.
5. Insertion of new heading before section 3
Before section 3 of the principal
Act, the following heading shall be inserted, namely:—
"CHAPTER
II
PROHIBITION
OF BENAMI TRANSACTIONS"
6. Amendment of section 3
In section 3 of the principal Act,—
(a)
sub-section (2) shall be omitted;
(b)
sub-section (3) shall be renumbered as sub-section (2) thereof;
(c)
after sub-section (2) as so renumbered, the following sub-section shall be
inserted,
namely:—
"(3)
Whoever enters into any benami transaction on and after the date of commencement
of the Benami Transactions (Prohibition) Amendment Act, 2016, shall,
notwithstanding anything contained in sub-section (2), be punishable in accordance
with the provisions contained in Chapter VII.";
(d)
sub-section (4) shall be omitted.
7. Amendment of section 4
In section 4 of the principal Act,
sub-section (3) shall be omitted.
8. Substitution of new sections for sections 5
and 6
For sections 5 and 6 of the
principal Act, the following sections shall be substituted, namely:—
"5. Property held benami liable to
confiscation
Any property, which is subject
matter of benami transaction, shall be liable to be confiscated by the
Central Government.
6. Prohibition on re-transfer of property by benamidar
(1) No
person, being a benamidar shall re-transfer the benami property
held by him to the beneficial owner or any other person acting on his behalf.
(2) Where
any property is re-transferred in contravention of the provisions of sub-section
(1), the transaction of such property shall be deemed to be null and void.
(3) The
provisions of sub-sections (1) and (2) shall not apply to a transfer made in
accordance with the provisions of section 190 of the Finance Act, 2016 (28 of
2016).".
9. Insertion of new Chapters III to VII
After section 6 of the principal
Act, the following shall be inserted, namely:—
‘CHAPTER
III
AUTHORITIES
7. Adjudicating Authority
The Central Government shall, by
notification, appoint one or more Adjudicating Authorities to exercise jurisdiction,
powers and authority conferred by or under this Act.
8. Composition of Authority
An Adjudicating Authority shall
consist of a Chairperson and at least two other Members.
9. Qualifications for appointment of Chairperson
and Members
(1) A
person shall not be qualified for appointment as the Chairperson or a Member of
the Adjudicating Authority unless he,—
(a) has been a member of the Indian Revenue
Service and has held the post of Commissioner of Income-tax or equivalent post
in that Service; or
(b) has been a member of the Indian Legal Service
and has held the post of Joint Secretary or equivalent post in that Service.
(2) The
Chairperson and other Members of the Adjudicating Authority shall be appointed
by the Central Government in such manner as may be prescribed.
(3) The
Central Government shall appoint the seniormost Member to be the Chairperson of
the Adjudicating Authority
10. Constitution of Benches of Adjudicating
Authority
(1) Subject
to the provisions of this Act,—
(a) the jurisdiction of the Adjudicating Authority
may be exercised by Benches thereof;
(b) a Bench may be constituted by the Chairperson
of the Adjudicating Authority with two Members, as the Chairperson may deem
fit;
(c) the Benches of the Adjudicating Authority
shall ordinarily sit in the National Capital Territory of Delhi and at such
other places as the Central Government may, in consultation with the Chairperson,
by notification, specify;
(d) the Central Government shall, by notification,
specify the areas in relation to which each Bench of the Adjudicating Authority
may exercise jurisdiction.
(2) Notwithstanding
anything contained in sub-section (1), the Chairperson may transfer a Member
from one Bench to another Bench.
11. Power of Adjudicating Authority to regulate its
own procedure
The Adjudicating Authority shall not
be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of
1908), but shall be guided by the principles of natural justice and, subject to
the other provisions of this Act, the Authority shall have powers to regulate
its own procedure.
12. Terms of office of Chairperson and Members of
Adjudicating Authority
The Chairperson and Members of the
Adjudicating Authority shall hold office for a term not exceeding five years
from the date on which they enter upon their office, or until they attain the
age of sixty-two years, whichever is earlier and shall not be eligible for
reappointment.
13. Terms and conditions of services of Chairperson
and Members of Adjudicating Authority
(1) The
salary and allowances payable to, and the other terms and conditions of service
of the Chairperson and other Members of the Adjudicating Authority shall be
such as may be prescribed.
(2) Any
vacancy caused to the office of the Chairperson or any other Member shall be
filled up within a period of three months from the date on which such vacancy occurs.
14. Removal of Chairperson and Members of
Adjudicating Authority
(1) The
Central Government may, by order, remove from office, the Chairperson or other Members
of the Adjudicating Authority, if the Chairperson or such other Member, as the
case may be,—
(a) has been adjudged as an insolvent; or
(b) has been convicted of an offence, involving
moral turpitude; or
(c) has become physically or mentally incapable of
acting as a Member; or
(d) has acquired such financial or other interest
as is likely to affect prejudicially his functions; or
(e) has so abused his position as to render his
continuance in office is prejudicial to the public interest.
(2) No
Chairperson or Member shall be removed from his office under clause (d) or
clause (e) of sub-section (1) unless he has been given a reasonable opportunity
of being heard in the matter.
15. Members to act as Chairperson in certain
circumstances
(1) In
the event of the occurrence of any vacancy in the office of the Chairperson by
reason of his death, resignation or otherwise, the seniormost Member shall act
as the Chairperson of the Adjudicating Authority until the date on which a new
Chairperson, appointed in accordance with the provisions of this Act to fill
such vacancy, enters upon his office.
(2) When
the Chairperson is unable to discharge his functions owing to absence, illness
or any other cause, the seniormost Member shall discharge the functions of the Chairperson
until the date on which the Chairperson resumes his duties.
16. Vacancies etc., not to invalidate proceedings
of Adjudicating Authority
No act or proceeding of the
Adjudicating Authority shall be invalid merely by reason of—
(a) any vacancy in, or any defect in the
constitution of the Authority; or
(b) any defect in the appointment of a person
acting as a Member of the Authority; or
(c) any irregularity in the procedure of the
Authority not affecting the merits of the case.
17. Officers and employees of Adjudicating
Authority
(1) The
Central Government shall provide each Adjudicating Authority with such officers
and employees as that Government may think fit.
(2) The officers and employees of
the Adjudicating Authority shall discharge their functions under the general
superintendence of the Chairperson of the Adjudicating Authority.
18. Authorities and jurisdiction
(1) The
following shall be the authorities for the purposes of this Act, namely:—
(a) the Initiating Officer;
(b) the Approving Authority;
(c) the Administrator; and
(d) the Adjudicating Authority.
(2) 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 in accordance with such rules as may be prescribed.
19. Powers of Authorities
(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 (5 of 1908),
while trying a suit in respect of the following matters, namely:—
(a) discovery and inspection;
(b) enforcing the attendance of any person,
including any official of a banking company or a public financial institution
or any other intermediary or reporting entity, 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) All
the persons summoned under sub-section (1) shall be bound to attend in person
or through authorised agents, as any authority under this Act may direct, and shall
be bound to state the truth upon any subject respecting which they are examined
or make statements, and produce such documents as may be required.
(3) Every
proceeding under sub-section (1) or sub-section (2) shall be deemed to be a
judicial proceeding within the meaning of section 193 and section 228 of the
Indian Penal Code (45 of 1860).
(4) 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 the
requisition or direction.
(5) For
the purposes of this section, "reporting entity" means any
intermediary or any authority or of the Central or the State Government or any
other person as may be notified in this behalf.
Explanation.— For the purposes of sub-section (5),
"intermediary" shall have the same meaning as assigned to it in
clause (n) of sub-section (1) of section 2 of the Prevention of
Money-Laundering Act, 2002 (15 of 2003).
20. Certain officers to assist inquiry, etc.
The following officers shall assist
the authorities in the enforcement of this Act, namely:—
(a) income-tax authorities appointed under
sub-section (1) of section 117 of the Income- tax Act, 1961 (43 of 1961);
(b) officers of the Customs and Central Excise
Departments;
(c) officers appointed under sub-section (1) of
section 5 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of
1985);
(d) officers of the stock exchange recognised under
section 4 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956);
(e) officers of the Reserve Bank of India constituted
under sub-section (1) of section 3 of the Reserve Bank of India Act, 1934 (2 of
1934);
(f) police;
(g) officers of enforcement appointed under
sub-section (1) of section 36 of the Foreign Exchange Management Act, 1999 (40
of 1999);
(h) officers of the Securities and Exchange Board
of India established under section 3 of the Securities and Exchange Board of
India Act, 1992 (15 of 1992);
(i) officers of any other body corporate
constituted or established under a Central or a State Act; and
(j) such other officers of the Central Government,
State Government, local authorities or banking companies as the Central Government
may, by notification, specify, in this behalf.
21. Power to call for information
(1) The
Initiating Officer or the Approving Authority or the Adjudicating Authority
shall have power to require any officer of the Central Government or State Government
or a local body or any person or officer who is responsible for registering and
maintaining books of account or other documents containing a record of any transaction
relating to any property or any other person to furnish any information in relation
to any person, point or matter as in his opinion shall be useful for or
relevant for the purposes of this Act.
(2) Without
prejudice to sub-section (1), every officer or person referred to in sub-section
(1) shall furnish such information to any authority under this Act in such form
and manner as may be prescribed.
22. Power of authority to impound documents
(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 the books of account or other documents are required to be impounded
and retained for any inquiry under this Act, it may impound and retain the books
of account or other documents for a period not exceeding three months from the date
of order of attachment made by the Adjudicating Authority under sub-section (3)
of section 26:
Provided that the period for
retention of the books of account or other documents may be extended beyond a
period exceeding three months from the date of order of attachment made by the
Adjudicating Authority under sub-section (3) of section 26 where the authority
records in writing the reasons for extending the same.
(2) Where
the authority impounding and retaining the books of account or other documents,
under sub-section (1) is the Initiating Officer, he shall obtain approval of the
Approving Authority within a period of fifteen days from the date of initial impounding
and seek further approval of the Approving Authority for extending the period
of initial retention, before the expiry of the period of initial retention, if
so required.
(3) The
period of retention of the books of account or other documents under sub-section
(1) shall in no case exceed a period of thirty days from the date of conclusion
of all the proceedings under this Act.
(4) The
person, from whom the books of account or other documents were impounded under
sub-section (1), shall be entitled to obtain copies thereof.
(5) On
the expiry of the period specified under sub-section (1), the books of account
or other documents shall be returned to the person from whom such books of account
or other documents were impounded unless the Approving Authority or the Adjudicating
Authority permits their release to any other person.
23. Power of authority to conduct inquiry, etc.
The Initiating Officer, after
obtaining prior approval of the Approving Authority, shall have power to
conduct or cause to be conducted any inquiry or investigation in respect of any
person, place, property, assets, documents, books of account or other
documents, in respect of any other relevant matters under this Act.
CHAPTER
IV
ATTACHMENT,
ADJUDICATION AND CONFISCATION
24. Notice and attachment of property involved in benami
transaction
(1) Where
the Initiating Officer, on the basis of material in his possession, has reason
to believe that any person is a benamidar in respect of a property, he
may, after recording reasons in writing, issue a notice to the person to show
cause within such time as may be specified in the notice why the 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 issued to
the beneficial owner if his identity is known.
(3) Where
the Initiating Officer is of the opinion that the person in possession of the
property held benami may alienate the property during the period
specified in the notice, he may, with the previous approval of the Approving
Authority, by order in writing, attach provisionally the property in the manner
as may be prescribed, for a period not exceeding ninety days from the date of
issue of notice under sub-section (1).
(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 passing of the order by the Adjudicating Authority under sub-section
(3) of section 26; 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 with the prior approval of the Approving Authority, till the passing
of the order by the Adjudicating Authority under sub-section (3) of section 26;
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) of sub-section (4) or passes an
order provisionally attaching the property under sub-clause (i) of clause (b) of
that sub-section, he shall, within fifteen days from the date of the
attachment, draw up a statement of the case and refer it to the Adjudicating
Authority.
25. Manner of service of notice
(1) A
notice under sub-section (1) of section 24 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 (5 of 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.
26. Adjudication of benami property
(1) On
receipt of a reference under sub-section (5) of section 24, the Adjudicating
Authority shall issue notice, to furnish such documents, particulars or evidence
as is considered necessary on a date to be specified therein, on the following
persons, 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:
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 person who claims to be the owner of the 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, in all other cases.
(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 the properties is held benami.
(5) Where
in the course of proceedings before it, the Adjudicating Authority has reason
to believe that a property, other than a property referred to it by the
Initiating Officer is benami property, it shall provisionally attach the
property and the 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 24.
(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 him 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 sub-section (5) of section 24
was received.
(8) The
benamidar or any other person who claims to be the owner of the property
may either appear in person or take the assistance of an authorised representative
of his choice to present his case.
Explanation.— For the purposes of sub-section (8), authorised
representative means a person authorised in writing, being—
(i) a person related to the benamidar or
such other person in any manner, or a person regularly employed by the benamidar
or such other person as the case may be; or\
(ii) any officer of a scheduled bank with which the
benamidar or such other person maintains an account or has other regular
dealings; or
(iii)
any legal practitioner who is entitled to practice in any civil court in India;
or
(iv) any
person who has passed any accountancy examination recognised in this behalf by
the Board; or
(v) any person who has acquired such educational
qualifications as the Board may prescribe for this purpose.
27. Confiscation and vesting of benami
property
(1) Where
an order is passed in respect of any property under sub-section (3) of section
26 holding such property to be a benami property, 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:
Provided that where an appeal has
been filed against the order of the Adjudicating Authority, the confiscation of
property shall be made subject to the order passed by the Appellate Tribunal
under section 46:
Provided further that the
confiscation of the property shall be made in accordance with such procedure as
may be prescribed.
(2) Nothing
in sub-section (1) shall apply to a property held or acquired by a person from
the benamidar for adequate consideration, prior to the issue of notice under
sub-section (1) of section 24 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.
28. Management of properties confiscated
(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 27 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
Administrators.
(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 sub-section (3) of section 27, in such manner and subject to such
conditions as may be prescribed.
29. Possession of the property
(1) Where
an order of confiscation in respect of a property under sub-section (1) of
section 27, has been made, the Administrator shall proceed to take the
possession of the property.
(2) The
Administrator shall,—
(a) by notice in writing, order within seven days
of the date of the service of notice to any person, who may be in possession of
the benami property, to surrender or deliver possession thereof to the
Administrator 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 the
officer to comply with the requisition.
CHAPTER
V
APPELLATE
TRIBUNAL
30. Establishment of Appellate Tribunal
The Central Government shall, by
notification, establish an Appellate Tribunal to hear appeals against the
orders of the Adjudicating Authority under this Act.
31. Composition etc., of Appellate Tribunal
(1) The
Appellate Tribunal shall consist of a Chairperson and at least two other
Members of which one shall be a Judicial Member and other shall be an
Administrative Member.
(2) Subject
to the provisions of this Act,—
(a) the jurisdiction of the Appellate Tribunal may
be exercised by Benches thereof;
(b) a Bench may be constituted by the Chairperson
with two Members as the Chairperson may deem fit;
(c) the Benches of the Appellate Tribunal shall
ordinarily sit in the National Capital Territory of Delhi and at such other places
as the Central Government may, in consultation with the Chairperson, by
notification, specify;
(d) the Central Government shall, by notification,
specify the areas in relation to which each Bench of the Appellate Tribunal may
exercise its jurisdiction.
(3) Notwithstanding
anything contained in sub-section (2), the Chairperson may transfer a Member
from one Bench to another Bench.
32. Qualification for appointment of Chairperson
and Members of Appellate Tribunal
(1) A
person shall not be qualified for appointment as Chairperson of the Appellate
Tribunal unless he is a sitting or retired Judge of a High Court, who has completed
not less than five years’ of service.
(2) A person shall not be qualified
for appointment as a Member unless he—
(a)
in the case of a Judicial Member, has been a Member of the Indian Legal Service
and has held the post of Additional Secretary or equivalent post in that
Service;
(b) in the case of an Administrative Member, has
been a Member of the Indian Revenue Service and has held the post of Chief
Commissioner of Incometax or equivalent post in that Service.
(3) No sitting Judge of a High Court
shall be appointed under this section except after consultation with the Chief
Justice of the High Court.
(4) The Chairperson or a Member holding
a post as such in any other Tribunal, established under any law for the time
being in force, in addition to his being the Chairperson or a Member of that
Tribunal, may be appointed as the Chairperson or a Member, as the case may be,
of the Appellate Tribunal under this Act.
33. Terms and conditions of services of Chairperson
and Members of Appellate Tribunal
(1) The
salary and allowances payable to, and the other terms and conditions of service
of the Chairperson and other Members shall be such as may be prescribed and
shall not be varied to their disadvantage during their tenure.
(2) Any
vacancy caused to the office of the Chairperson or any other Member shall be
filled up within a period of three months from the date on which such vacancy occurs.
34. Terms of office of Chairperson and Members
The Chairperson and Members of the
Appellate Tribunal shall hold office for a term not exceeding five years from
the date on which they enter upon their office, or until they attain the age of
sixty-five years, whichever is earlier and shall not be eligible for
reappointment.
35. Removal of Chairperson and Member from office
in certain circumstances
(1) The
Central Government may, in consultation with the Chief Justice of High Court,
remove from office of the Chairperson or any Member, who—
(a) has been adjudged as an insolvent; or
(b) has been convicted of an offence which, in the
opinion of the Central Government involves moral turpitude; or
(c) has become physically or mentally incapable;
or
(d) has acquired such financial or other interest
as is likely to affect prejudicially his functions; or
(e) has so abused his position as to render his
continuance in office prejudicial to the public interest.
(2) The Chairperson or Judicial
Member shall not be removed from his office except by an order made by the
Central Government after an inquiry made by Chief Justice of the High Court in
which the Chairperson or Judicial Member has been informed of the charges
against him and given a reasonable opportunity of being heard in respect of
those charges.
(3) The Central Government may
suspend from office the Chairperson or Judicial Member in respect of whom a
reference of conducting an inquiry has been made to the Chief Justice of the High
Court under sub-section (2), until the Central Government passes an order on
receipt of the report of inquiry made by Chief Justice of the High Court on the
reference.
(4) The Central Government may
regulate the procedure for inquiry referred to in sub-section (2) in the manner
as may be prescribed.
(5) The Administrative Member may be
removed from his office by an order of the Central Government on the grounds
specified in sub-section (1) and in accordance with the procedure notified by
the Central Government:
Provided that the Administrative
Member shall not be removed unless he has been given an opportunity of being
heard in the matter.
36. Vacancies, etc., not to invalidate proceedings
of Appellate Tribunal
No act or proceeding of the
Appellate Tribunal shall be invalid merely by reason of—
(a) any vacancy in, or any defect in the constitution
of the Tribunal; or
(b) any defect in the appointment of a person
acting as a Member of the Tribunal; or
(c) any irregularity in the procedure of the Tribunal
not affecting the merits of the case.
37. Resignation and removal
The Chairperson or any other Member
may, by notice in writing under his hand addressed to the Central Government,
resign his office:
Provided that the Chairperson or any
other Member shall, unless he is permitted by the Central Government to
relinquish his office sooner, continue to hold office until the expiry of three
months from the date of receipt of the notice or until a person duly appointed
as his successor enters upon his office or until the expiry of his term of office,
whichever is earlier.
38. Member to act as Chairperson in certain
circumstances
(1) In
the event of the occurrence of any vacancy in the office of the Chairperson of
the Appellate Tribunal by reason of his death, resignation or otherwise, the
senior-most Member shall act as the Chairperson until the date on which a new Chairperson,
appointed in accordance with the provisions of this Act to fill such vacancy,
enters upon his office.
(2) When
the Chairperson is unable to discharge his functions owing to absence, illness
or any other cause, the senior-most Member shall discharge the functions of the
Chairperson until the date on which the Chairperson resumes his duties.
39. Staff of Appellate Tribunal
(1) The
Central Government shall provide the Appellate Tribunal with such officers and employees
as it may thinks fit.
(2) The
officers and employees of the Appellate Tribunal shall discharge their functions
under the general superintendence of the Chairperson.
(3) The
salaries and allowances and other conditions of service of the officers and
employees of the Appellate Tribunal shall be such, as may be prescribed.
40. Procedure and powers of Appellate Tribunal
(1) The
Appellate Tribunal shall not be bound by the procedure laid down by the Code of
Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of
natural justice and, subject to the other provisions of this Act, the Appellate
Tribunal shall have powers to regulate its own procedure.
(2) The
Appellate Tribunal shall, for the purposes of discharging its functions under
this Act, have the same powers as are vested in a civil court under the Code of
Civil Procedure, 1908 (5 of 1908) while trying a suit, in respect of the
following matters, namely:—
(a) summoning and enforcing the attendance of any
person and examining him on oath;
(b) requiring the discovery and production of
documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of sections 123 and
124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public
record or document or copy of such record or document from any office;
(e) issuing commissions for the examination of
witnesses or documents;
(f) reviewing its decisions;
(g) dismissing a representation for default or
deciding it ex parte;
(h) setting aside any order of dismissal of any
representation for default or any order passed by it ex parte; and
(i) any other matter, which may be, prescribed by
the Central Government.
(3) An
order made by the Appellate Tribunal under this Act shall be executable by it
as a decree of civil court and, for this purpose, the Appellate Tribunal shall
have all the powers of a civil court.
(4) Notwithstanding
anything contained in sub-section (3), the Appellate Tribunal may transmit any
order made by it to a civil court having jurisdiction and the civil court shall
execute the order as if it were a decree made by that court.
(5) All
proceedings before the Appellate Tribunal shall be deemed to be judicial proceedings
within the meaning of sections 193 and 228 of the Indian Penal Code (45 of
1960) and the Appellate Tribunal shall be deemed to be a civil court for the
purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973 (2 of
1974).
41. Distribution of business amongst Benches of
Appellate Tribunal
Where any Benches are constituted,
the Chairperson may, from time to time, by notification, make provision as to
the distribution of the business of the Appellate Tribunal amongst the Benches
and also provide for the matters which may be dealt with by each Bench.
42. Power of Chairperson of Appellate Tribunal to
transfer cases
On the application of any of the
parties and notice to the parties, and after hearing them, or on his own motion
without any notice, the Chairperson of the Appellate Tribunal may transfer any
case pending before one Bench, for disposal, to any other Bench.
43. Decision to be by majority
If the Members of a Bench consisting
of two Members differ in opinion on any point, they shall state the point or
points on which they differ, and make a reference to the Chairperson of the
Appellate Tribunal who shall either hear the point or points himself or refer
the case for hearing on the point or points by one or more of the other Members
and the point or points shall be decided according to the opinion of the majority
of the Members of the Appellate Tribunal who have heard the case, including those
who first heard it.
44. Members, etc., to be public servants
The Chairperson, Members and other officers
and employees of the Appellate Tribunal, the Adjudicating Authority, Approving
Authority, Initiating Officer, Administrator and the officers subordinate to
all of them shall be deemed to be public servants within the meaning of section
21 of the Indian Penal Code (45 of 1860).
45. Bar of jurisdiction of civil courts
No civil court shall have
jurisdiction to entertain any suit or proceeding in respect of any matter which
any of the authorities, an Adjudicating Authority or the Appellate Tribunal is empowered
by or under this Act to determine, and no injunction shall be granted by any
court or other forum in respect of any action taken or to be taken in pursuance
of any power conferred by or under this Act.
46. Appeals to Appellate Tribunal
(1) Any
person, including the Initiating Officer, aggrieved by an order of the Adjudicating
Authority may prefer an appeal in such form and along with such fees, as may be
prescribed, to the Appellate Tribunal against the order passed by the Adjudicating
Authority under sub-section (3) of section 26, within a period of fortyfive
days from the date of the order
(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) An
Appellate Tribunal while deciding the appeal 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 any
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
other order or orders as may be necessary to meet the ends of justice.
(5) The
Appellate Tribunal, as far as possible, may hear and finally decide the appeal
within a period of one year from the last date of the month in which the appeal
is filed.
47. Rectification of mistakes
(1) The
Appellate Tribunal or the Adjudicating Authority may, in order to rectify any
mistake apparent on the face of the record, amend any order made by it under
section 26 and section 46 respectively, 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 the amendment is likely to
affect any person prejudicially, unless he has been given notice of intention
to do so and has been given an opportunity of being heard.
48. Right to representation
(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.
(2) The
Central Government may authorise one or more of its officers to act as presenting
officers on its behalf, and every person so authorised may present the case with
respect to any appeal before the Appellate Tribunal.
Explanation.— For the purposes of this section, "authorised
representative" means a person authorised by the appellant in writing to
appear on his behalf, being—
(i) a person related to the appellant in any
manner, or a person regularly employed by the appellant; or
(ii) any officer of a scheduled bank with which the
appellant maintains an account or has other regular dealings; or
(iii) any legal practitioner who is entitled to
practice in any civil court in India; or
(iv) any person who has passed any accountancy
examination recognized in this behalf by the Board; or
(v) any person who has acquired such educational
qualifications as the Board may prescribe for this purpose.
49. Appeal to High Court
(1) Any
party aggrieved by any decision or order of the Appellate Tribunal may file an
appeal to the High Court within a period of sixty 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 sixty 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.
(6) The
High Court shall decide the question of law so formulated and deliver the judgment
thereon containing the grounds on which any decision is founded and may award
any 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 (5 of 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
50. Special Courts
(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 (2 of 1974), 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 by that Government by a general or special
order made in this behalf.
(4) Every
trial under this section shall be conducted as expeditiously as possible and
every endeavour shall be made by the Special Court to conclude the trial within
six months from the date of filing of the complaint.
51. Application of Code of Criminal Procedure, 1973
to Proceedings before Special Court
(1) Save
as otherwise provided in this Act, the provisions of the Code of Criminal Procedure,
1973 (2 of 1974), shall apply to the proceedings before a Special Court and the
persons conducting the prosecution before the Special Court, shall be deemed to
be Public Prosecutors:
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, the Public Prosecutor has been in practice
as an advocate for not less than seven years, and the Special Public Prosecutor
has been in practice as an advocate for not less than ten years in any court.
(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 (2 of 1974) and the
provisions of that Code shall have effect accordingly.
52. Appeal and revision
The High Court may exercise, so far
as may be applicable, all the powers conferred by Chapter XXIX or Chapter XXX
of the Code of Criminal Procedure, 1973 (2 of 1974), on a High Court, as if a
Special Court within the local limits of the jurisdiction of the High Court
were a Court of Session trying cases within the local limits of the
jurisdiction of the High Court.
CHAPTER
VII
OFFENCES
AND PROSECUTION
53. Penalty for benami transaction
(1) Where
any person enters into a benami transaction 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 the benami transaction, shall be guilty
of the offence of benami transaction.
(2) Whoever
is found guilty of the offence of benami transaction referred to in sub-section
(1) shall be punishable with rigorous imprisonment for a term which shall not
be less than one year, but which may extend to seven years and shall also be
liable to fine which may extend to twenty-five per cent. of the fair market
value of the property.
54. Penalty for false information
Any person who is required to
furnish information under this Act knowingly gives false information to any
authority or furnishes any false document in any proceeding under this Act,
shall be punishable with rigorous imprisonment for a term which shall not be
less than six months but which may extend to five years and shall also be
liable to fine which may extend to ten per cent. of the fair market value of
the property.
55. Previous sanction
No prosecution shall be instituted
against any person in respect of any offence under sections 3, 53 or section 54
without the previous sanction of the Board.’.
10. Substitution of new Chapter VIII for sections 7
and 8
For sections 7 and 8 of the
principal Act, the following shall be substituted, namely:—
‘CHAPTER
VIII
MISCELLANEOUS
56. Repeal of provisions of certain Acts
(1) Sections
81, 82 and 94 of the Indian Trusts Act, 1882 (2 of 1882), section 66 of the Code
of Civil Procedure, 1908 (5 of 1908) and section 281A of the Income-tax Act,
1961 (43 of 1961), are hereby repealed.
(2) For
the removal of doubts, it is hereby declared that nothing in sub-section (1) shall
affect the continued operation of section 281A of the Income-tax Act, 1961 (43
of 1961) in the State of Jammu and Kashmir.
57. Certain transfers to be null and void
Notwithstanding anything contained in
the Transfer of the Property Act, 1882 (4 of 1882) or any other law for the
time being in force, where, after the issue of a notice under section 24, any
property referred to in the said notice is transferred by any mode whatsoever,
the transfer shall, for the purposes of the proceedings under this Act, be ignored
and if the property is subsequently confiscated by the Central Government under
section 27, then, the transfer of the property shall be deemed to be null and
void.
58. Exemption
(1) The
Central Government may, by notification, exempt any property relating to
charitable or religious trusts from the operation of this Act.
(2) Every
notification issued under sub-section (1) shall be laid before each House of
Parliament.
59. Power of Central Government to issue
directions, etc.
(1) The
Central Government may, from time to time, issue such orders, instructions or
directions to the authorities or require any person to furnish information 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 the orders, instructions and directions of the Central Government.
(2) In
issuing the directions or orders referred to in sub-section (1), the Central Government
may have regard to anyone or more of the following criteria, namely:—
(a) territorial area;
(b) classes of persons;
(c) classes of cases; and
(d) any other criterion that may be specified by
the Central Government in this behalf.
(3) 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 the discharge of its functions.
60. Application of other laws not barred
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.
61. Offences to be non-cognizable
Notwithstanding anything contained
in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this Act
shall be non-cognizable.
62. Offences by companies
(1) Where
a person committing 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 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, the
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 purposes of this section,—
(a) "company" means a body corporate,
and includes—
(i) a
firm; and
(ii) an association of persons or a body of
individuals whether incorporated or not; and
(b)
"director", in relation to—
(i) a
firm, means a partner in the firm;
(ii) any association of persons or a body of
individuals, means any member controlling the affairs thereof.
63. Notice, etc., not to be invalid on certain
grounds
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 the notice, summons, order, document or
other proceeding if the 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.
64. Protection of action taken in good faith
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.
65. Transfer of pending cases
(1) Every
suit or proceeding in respect of a benami transaction pending in any
Court (other than a High Court) or Tribunal or before any forum on the date of
the commencement of this Act shall stand transferred to the Adjudicating
Authority or the Appellate Tribunal, as the case may be, having jurisdiction in
the matter.
(2) Where
any suit, or other proceeding stands transferred to the Adjudicating Authority
or the Appellate Tribunal under sub-section (1),—
(a) the court, Tribunal or other forum shall, as
soon as may be, after the transfer, forward the records of the suit, or other
proceeding to the Adjudicating Authority or the Appellate Tribunal, as the case
may be;
(b) the Adjudicating Authority may, on receipt of
the records, proceed to deal with the suit, or other proceeding, so far as may
be, in the same manner as in the case of a reference made under sub-section (5)
of section 24, from the stage which was reached before the transfer or from any
earlier stage or de novo as the Adjudicating Authority may deem fit.
66. Proceedings etc., against legal representative
(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 representative and may be continued against the legal representative
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 representative and all the provisions of this Act,
except sub-section (2) of section 3 and the provisions of Chapter VII, shall
apply accordingly.
(3) Where
any property of a person has been held benami under sub-section (3) of
section 26, then, it shall be lawful for the legal representative of the person
to prefer an appeal to the Appellate Tribunal, in place of the person and the
provisions of section 46 shall, so far as may be, apply, or continue to apply,
to the appeal.
67. Act to have overriding effect
The provisions of this Act shall
have effect, notwithstanding anything inconsistent therewith contained in any
other law for the time being in force.
68. Power to make rules
(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) manner of ascertaining the fair market value
under clause 16 of section 2;
(b) the manner of appointing the Chairperson and
the Member of the Adjudicating Authorities under sub-section (2) of section 9;
(c) the salaries and allowances payable to the
Chairperson and the Members of the Adjudicating Authority under sub-section (1)
of section 13;
(d) the powers and functions of the authorities
under sub-section (2) of section 18;
(e) other powers of the authorities under clause
(f) of sub-section (1) of section 19;
(f) the form and manner of furnishing any
information to the authority under sub-section (2) of section 21;
(g) the manner of provisional attachment of
property under sub-section (3) of section 24;
(h) the procedure for confiscation of benami
property under the second proviso to sub-section (1) of section 27;
(i) the manner and conditions to receive and
manage the property under sub-section (1) of section 28;
(j) the manner and conditions of disposal of
property vested in the Central Government under sub-section (3) of section 28;
(k) the salaries and allowances payable to and the
other terms and conditions of service of the Chairperson and other Members of
the Appellate Tribunal under sub-section (1) of section 33;
(l) the manner of prescribing procedure for
removal of Chairperson or Member under sub-section (4) of section 35;
(m) the salaries and allowances payable to and
the other terms and conditions of service of the officers and employees of the
Appellate Tribunal under sub-section (3) of section 39;
(n) any power of the Appellate Tribunal under
clause (i) of sub-section (2) of section 40;
(o) the form in which appeal shall be filed and
the fee for filing the appeal under sub-section (1) of section 46;
(p) any other matter which is to be, or may be,
prescribed, or in respect of which provision is to be made, by rules.
69. Laying of rules and notifications before
Parliament
Every rule made and notification
issued under this Act shall be laid, as soon as may be after it is made or
issued, 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 rules or notifications, as the case may be, both Houses
agree that the rules or notifications, as the case may be, should not be made
or issued, the rule or notification, as the case may be, 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 or notification, as
the case may be.
70. Power to remove difficulties
(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.
71. Transitional provision
The Central Government may, by notification,
provide that until the Adjudicating Authorities are appointed and the Appellate
Tribunal is established under this Act, the Adjudicating Authority appointed
under sub-section (1) of section 6 of the Money-Laundering Act, 2002 (15 of
2003) and the Appellate Tribunal established under section 25 of that Act may
discharge the functions of the Adjudicating Authority and Appellate Tribunal,
respectively, under this Act.’.
11. Amendment of section 9
Section 9 of the principal Act shall
be renumbered as section 72 thereof.
______________________________________________
(3). The Finance (NO.2) Act, 2019 (23 of 2019)[3]:
An
Act to give effect to the financial proposals of the Central Government for the
financial year 2019-2020.
BE it
enacted by Parliament in the Seventieth Year of the Republic of India as
follows:-
CHAPTER
I
PRELIMINARY
1. Short title and commencement
(1) This
Act may be called the Finance (No.2) Act, 2019.
(2) Save
as otherwise provided in this Act,-
(a) section 2 to 69 shall be deemed to have come
into force on the 1st day of April, 2019;
(b) section 92 to 112 and section 114 shall come
into force on such date as the Central Government may, by notification in the
Official Gazette, appoint.
* * * * * * * * * * *
CHAPTER
VI
MISCELLANEOUS
* * * * * * * * * * *
PART
VIII
AMENDMENTS
TO THE PROHIBITION OF BENAMI PROPERTY TRANSACTIONS ACT, 1988
173. Amendment of section 23
In the Prohibition of Benami
Property Transactions Act, 1988 (45 of 1988) (hereafter in this Part referred
to as the principal Act), in section 23, the following Explanation shall be
inserted and shall be deemed to have been inserted with effect from the 1st
day of November, 2016, namely:-
“Explanation:- For the
removal of doubts, it is hereby clarified that nothing contained in this
section shall apply and shall be deemed to have ever applied where a notice
under sub-section (1) of section 24 has been issued by the Initiating Officer.”
174. Amendment of section 24
In section 24 of the principal Act,
with effect from the 1st day of September, 2019,—
(a) in sub-section (3), for the words, brackets
and figure “from the date of issue of notice under sub-section (1)”, the words,
brackets and figure “from the last day of the month in which the notice under
sub-section (1) is issued” shall be substituted;
(b) in sub-section (4), for the words, brackets
and figure “from the date of issue of notice under sub-section (1)”, the words,
brackets and figure “from the last day of the month in which the notice under
sub-section (1) is issued” shall be substituted;
(c) the following Explanation shall be inserted,
namely:—
“Explanation.––For the purposes of
this section, in computing the period of limitation, the period during which
the proceeding is stayed by an order or injunction of any court shall be
excluded: Provided that where immediately after the exclusion of the aforesaid
period, the period of limitation referred to in sub-section (4) available to
the Initiating Officer for passing order of attachment is less than thirty
days, such remaining period shall be deemed to be extended to thirty days:
Provided further that where
immediately after the exclusion of the aforesaid period, the period of
limitation referred to in sub-section (5) available to the Initiating Officer
to refer the order of attachment to Adjudicating Authority is less than seven days,
such remaining period shall be deemed to be extended to seven days.”.
175. Amendment of section 26
In section 26 of the principal Act,
in sub-section (7), with effect from the 1st day of September, 2019, the
following Explanation shall be inserted, namely:-—
“Explanation.—For the purposes of
this sub-section, in computing the period of limitation, the period during which
the proceeding is stayed by an order or injunction of any court shall be
excluded:
Provided that where immediately
after the exclusion of the aforesaid period, the period of limitation available
to the Adjudicating Authority for passing order is less than sixty days, such
remaining period shall be deemed to be extended to sixty days.”.
176. Amendment of section 30
In section 30 of the principal Act,
for the words "the Adjudicating Authority", the words "any
authority" shall be substituted with effect from the 1st day of September,
2019.
177. Amendment of section 46
In section 46 of the principal Act,
with effect from the 1st day of September, 2019,—
(a) after
sub-section (1), the following sub-section shall be inserted, namely:—
"(1A) Any person aggrieved by
an order passed by the authority under section 54A may prefer an appeal in such
form along with such fees, as may be prescribed, to the Appellate Tribunal
against the said order within a period of forty-five days from the date of that
order.";
(b) in sub-section (3), after the word, brackets
and figure "sub-section (1)," the words, brackets, figure and letter
"or sub-section (1A)" shall be inserted.
178. Amendment of section 47
In section 47 of the principal Act,
for sub-section (1), the following sub-section shall be substituted with effect
from the 1st day of September, 2019, namely:—
"(1) The Appellate Tribunal or any authority
may, in order to rectify any mistake apparent on the face of the record, amend
any order passed by it under the provisions of this Act, within a period of one
year from the end of the month in which such order was passed.".
179. Insertion of new sections 54A and 54B
In
the principal Act, after section 54, the following sections shall be inserted
with
effect
from the 1st day of September, 2019, namely:—
“54A.
(1) Any person who fails to,––
(i) comply with summons issued under sub-section
(1) of section 19; or
(ii) furnish information as required under section
21,
shall be liable to pay penalty of
twenty-five thousand rupees for each such failure.
(2) The
penalty under sub-section (1) shall be imposed by the authority who had issued
the summons or called for the information.
(3) No
order under sub-section (2) shall be passed by the authority unless the person on
whom the penalty is to be imposed has been given an opportunity of being heard:
Provided that no penalty shall be
imposed if, such person proves that there were good and sufficient reasons
which prevented him from complying with the summons or furnishing information.
54B. The
entries in the records or other documents in the custody of an authority shall
be admitted in evidence in any proceedings for the prosecution of any person
for an offence under section 3 or this Chapter, as the case may be, and all
such entries may be proved either by–
(i) the production of the records or other
documents in the custody of the authority containing such entries; or
(ii) the production of a copy of the entries
certified by the authority having custody of the records or other documents
under its signature stating that it is a true copy of the original entries and
that such original entries are contained in the records or other documents in
its custody.”.
180. Amendment of section 55
In section 55 of the principal Act,
with effect from the 1st day of September, 2019,—
(i) for
the word “Board”, the words “competent authority” shall be substituted;
(ii) the following Explanation shall
be inserted, namely:–
‘Explanation.– For the
purposes of this section, “competent authority” means a Commissioner, a
Director, a Principal Commissioner of Income-tax or a Principal Director of
Income-tax as defined in clause (16), clause (21), clause (34B) and clause
(34C), respectively, of section 2 of the Income-tax Act, 1961.’.
______________________________________________
(4). The Jammu and Kashmir Reorganisation Act,
2019 (34 of 2019)[4]:
An
Act to give effect to the financial proposals of the Central Government for the
financial year 2019-2020.
BE it
enacted by Parliament in the Seventieth Year of the Republic of India as
follows:—
95. Territorial extent of laws
(1)
All Central laws in Table -1 of the Fifth Schedule to this Act, on and from the
appointed day, shall apply in the manner as provided therein, to the Union
territory of Jammu and Kashmir and Union territory of Ladakh.
(2)
All other laws in Fifth Schedule, applicable to existing State of Jammu and
Kashmir immediately before the appointed day, shall apply in the manner as
provided therein, to the Union territory of Jammu and Kashmir and Union
territory of Ladakh.
96.
Power to adapt laws
For
the purpose of facilitating the application in relation to the successor Union Territories,
of any law made before the appointed day, as detailed in Fifth Schedule, the Central
Government may, before the expiration of one year from that day, by order, make
such adaptations and modifications of the law, whether by way of repeal or
amendment, as may be necessary or expedient, and thereupon every such law shall
have effect subject to the adaptations and modifications so made until altered,
repealed or amended by a competent Legislature or other competent authority.
The
Fifth Schedule
(See
Sections 95 and 96)
TABLE
- 1
CENTRAL
LAWS MADE APPLICABLE TO THE UNION TERRITORY OF JAMMU AND KASHMIR; AND UNION
TERRITORY OF LADAKH
|
S.No. |
Name
of the Act |
Section/Amendments |
|
4. |
**** |
**** |
|
5. |
The Benami Transactions
(Prohibition) Act, 1988 |
In sub-section (2) of section 1,
words, "except the State of Jammu and Kashmir" shall be omitted. |
|
6. |
**** |
**** |
______________________________________________
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