[As amended by the Jammu and Kashmir Reorganisation
Act, 2019 and the Finance (No.2) Act, 2019]
An
Act to prohibit benami transactions and the right
to recover property held benami for matters connected therewith or
incidental thereto.
BE it
enacted by Parliament in the Thirty-ninth Year of the Republic of India as
follows:-
[2][CHAPTER I
PRELIMINARY]
1. Short title, extent and commencement
[3][(1) This Act may be called the
Prohibition of Benami Property Transactions Act, 1988 (45 of 1988).]
(2)
It extends to the whole of India [4][*
* *].
(3) The provisions of sections 3, 5
and 8 shall come into force at once, and the remaining provisions of this Act
shall be deemed to have come into force on the 19th day of May, 1988.
[5][2. Definitions.-
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, 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 1982);
(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.]
[6][CHAPTER II
PROHIBITION
OF BENAMI TRANSACTIONS]
3. Prohibition of benami transactions
(1) No
person shall enter into any benami transaction.
[7][* * *]
[8][(2)] Whoever enters into any benami
transaction shall be punishable with imprisonment for a term which may extend
to three years or with fine or with both.
[9][(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.]
[10][* * *]
4. Prohibition of the right to recover
property held benami
(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.
[11][* * *]
[12][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.]
[13][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-section (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).]
[14][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 senior-most 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. Term 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. Member 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 senior-most 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 senior-most
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, 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
authorized 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.
(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.
20. Certain officers to
assist in 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;
(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;
(d) officers of the stock
exchange recognized under section 4 of the Securities Contracts (Regulation)
Act, 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;
(f) police;
(g) officers of enforcement
appointed under sub-section (1) of section 36 of the Foreign Exchange
Management Act, 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;
(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.]
[15][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.]
[16][CHAPTER IV
ATTACHMENT,
ADJUDICATION AND CONSFICATION
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 [17][from
the last day of the month in which the notice under sub-section (1) is issued].
(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 [18][
from the last day of the month in which the notice under sub-section (1) is
issued],-
(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.
[19][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.]
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 endeavors 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.
[20][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.]
(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 authorized representative of his choice to present his case.
Explanation.- For the purposes of sub-section
(8), authorized representative means a person authorized 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 recognized in this behalf by the Board; or
(v) any person who has
acquired such educational qualifications as the Board may prescribe for this
purposes.
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 authorized 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.]
[21][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 [22][any 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. Qualifications 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 Income tax 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. Term 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) eceiving 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 1860) 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 forty-five days from the date of the order.
[23][(1A) Any person aggrieved by an
order passed by the authority under section 54A may prefer an appeal in such
form alongwith 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.]
(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) [24][or
sub-section (1A)], 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
[25][(1) The Appellate Tribunal or any authority
may, in order to rectify any mistake apparent on the face of the record, amend
any order made 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.]
(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) [26][A
person, including the Initiating Officer, who is a party to any proceedings before]
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 authorize one or more of its officers to act as
presenting officers on its behalf, and every person so authorized may present
the case with respect to any appeal before the Appellate Tribunal.
Explanation.- For the purposes of this section,
"authorized representative" [27][in
relation to-
(i) the Initiating Officer, means a person
authorized by the Central Government;
(ii) any other party to the proceedings, means a
person authorised by the party;]
in writing to appear on his behalf,
being-
(i) a person related to [28][the
party] in any manner, or a person regularly employed by the appellant; or
(ii) any officer of a scheduled bank with which [29][the
party] 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.]
[30][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 authorized 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 endeavor 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 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.
[31][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.
[32][54A. Penalty for failure to comply with notices or
furnish information
(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. Proof of entries in records or
documents
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.]
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 [33][competent
authority].
[34][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 (43 of 1961).]
[35][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 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 [36][for
such period and in respect of such cases or class of cases as may be specified
in the said notification].]
[37][72]. Repeal and saving
(1) The
Benami Transactions (Prohibition of the Right to Recover Property)
Ordinance, 1988 (Ordinance 2 of 1988), is hereby repealed.
(2) Notwithstanding
such repeal, anything done or any action taken under the said Ordinance shall
be deemed to have been done or taken under the corresponding provisions of this
Act.
[1] Earlier known as The Benami
Transactions (Prohibition) Act, 1988 (45 of 1988).
[2] Inserted by Act 43 of 2016 w.e.f.
01.11.2016 vide S.O. 3289(E) dated 25.10.2016.
[3] Substituted by Act 43 of 2016 w.e.f.
01.11.2016 vide S.O. 3289(E) dated 25.10.2016. Sub-section (1), before
substitution, stood as under:
“(1)
This Act may be called the Benami Transactions (Prohibition) Act, 1988.”
[4] The word “except the State of Jammu and
Kashmir” omitted by the Jammu and Kashmir Reorganisation Act, 2019 (34 of 2019)
w.e.f. 31.10.2019.
[5] Substituted by Act 43 of 2016 w.e.f.
01.11.2016 vide S.O. 3289(E) dated 25.10.2016. Section 2, before substitution,
stood as under:
“2. Definitions.-
In this Act, unless the context otherwise requires,-
(a) “Benami transaction” means any
transaction in which property is transferred to one person for a consideration
paid or provided by another person;
(b) “prescribed” means prescribed by rules made
under this Act;
(c) “property” means property of any kind,
whether movable or immovable, tangible or intangible, and includes any right or
interest in such property.”
[6] Inserted by Act 43 of 2016 w.e.f.
01.11.2016 vide S.O. 3289(E) dated 25.10.2016.
[7] Sub-section (2) omitted by Act 43 of 2016
w.e.f. 01.11.2016 vide S.O. 3289(E) dated 25.10.2016. Sub-section (1), before
substitution, stood as under:
“(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.”
[8] Sub-section (3) renumbered as sub-section
(2) thereof by Act 43 of 2016 w.e.f. 01.11.2016 vide S.O. 3289(E) dated
25.10.2016.
[9] Inserted by Act 43 of 2016 w.e.f.
01.11.2016 vide S.O. 3289(E) dated 25.10.2016.
[10] Sub-section (4) omitted by Act 43 of 2016
w.e.f. 01.11.2016 vide S.O. 3289(E) dated 25.10.2016. Sub-section (4), before
omission, stood as under:
“(4) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be
non-cognizable and bailable”
[11] Sub-section (3) omitted by Act 43 of 2016
w.e.f. 01.11.2016 vide S.O. 3289(E) dated 25.10.2016. Sub-section (3), before
omission, stood as under:
“(3) Nothing in this section shall apply,-
(a) where the person in whose name the property is held is a
coparcener in a Hindu undivided family and the property is held for the benefit
of the coparceners in the family; or
(b) where the person in whose name the property is held is a trustee
or other person standing in a fiduciary capacity, and the property is held for
the benefit of another person for whom he is a trustee or towards whom he
stands in such capacity.”
[12] Substituted by Act 43 of 2016 w.e.f.
01.11.2016 vide S.O. 3289(E) dated 25.10.2016. Section 5, before substitution,
stood as under:
“5. Property held benami liable to
acquisition.-
(1) All properties held benami shall be subject to acquisition
by such authority, in such manner and after following such procedure, as may be
prescribed.
(2) For the removal of doubts, it is hereby declared that no amount
shall be payable for the acquisition of any property under sub-section (1).”
[13] Substituted by Act 43 of 2016 w.e.f.
01.11.2016 vide S.O. 3289(E) dated 25.10.2016. Section 6, before substitution,
stood as under:
“6. Act not to apply in certain cases.-
Nothing in this Act shall affect the provisions of section 53 of the Transfer
of Property Act, 1882 (4 of 1882), or any law relating to transfers for an
illegal purpose.”
[14] Chapter III (containing sections 7 to 23)
inserted by Act 43 of 2016 w.e.f. 01.11.2016 vide S.O. 3289(E) dated
25.10.2016.
[15] Inserted by Act 23 of 2019 w.e.f.
01.09.2019.
[16] Chapter IV (containing sections 24 to 29)
inserted by Act 43 of 2016 w.e.f. 01.11.2016 vide S.O. 3289(E) dated
25.10.2016.
[17] Substituted by Act 23 of 2019, for “from
the date of issue of notice under sub-section (1)” w.e.f. 01.09.2019.
[18] Ibid.
[19] Inserted by Act 23 of 2019, w.e.f.
01.09.2019.
[20] Inserted by Act 23 of 2019, w.e.f.
01.09.2019.
[21] Chapter V (containing sections 30 to 49)
inserted by Act 43 of 2016 w.e.f. 01.11.2016 vide S.O. 3289(E) dated
25.10.2016.
[22] Substituted by Act 23 of 2019, for “the
Adjudicating Authority” w.e.f. 01.09.2019.
[23] Inserted by Act 23 of 2019, w.e.f.
01.09.2019.
[24] Ibid.
[25] Substituted by Act 23 of 2019, w.e.f.
01.09.2019. Sub-section (1), before substitution, stood as under:
“(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.”
[26] Substituted by S.O. 5194(E) dated
09.10.2018, for “A person preferring an appeal to” w.e.f. 09.10.2018.
[27] Substituted by S.O. 5194(E) dated
09.10.2018, for “means a person authorized by the appellant” w.e.f. 09.10.2018.
[28] Substituted by S.O. 5194(E) dated
09.10.2018, for “the appellant” w.e.f. 09.10.2018.
[29] Ibid.
[30] Chapter VI (containing sections 50 to 52)
inserted by Act 43 of 2016 w.e.f. 01.11.2016 vide S.O. 3289(E) dated
25.10.2016.
[31] Chapter VII (containing sections 53 to 55)
inserted by Act 43 of 2016 w.e.f. 01.11.2016 vide S.O. 3289(E) dated
25.10.2016.
[32] Inserted by Act 23 of 2019, w.e.f.
01.09.2019.
[33] Substituted by Act 23 of 2019, for “Board”
w.e.f. 01.09.2019.
[34] Inserted by Act 23 of 2019, w.e.f.
01.09.2019.
[35] Chapter VIII (containing sections 56 to 71)
inserted by Act 43 of 2016, section 10, for section 7 and 8 w.e.f. 01.11.2016
vide S.O. 3289(E) dated 25.10.2016. Section 7 and 8, before substitution, stood
as under:
“7. Repeal
of provisions of certain Acts.- (1) Section 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.
8. Power to make rules.- (1) The Central Government may, by
notification in the Official Gazette, make rules for carrying out the purpose
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) the authority competent to acquire properties
under section 5;
(b) the manner in which, and the procedure to be
followed for, the acquisition of properties under section 5;
(c) any other matter which is required to be, or
may be, prescribed.
(3) 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 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.”
[36] Inserted by S.O. 5602(E) dated 31.10.2018,
w.e.f. 31.10.2018.
[37] Section 9 renumbered as section 72 by Act
43 of 2016, w.e.f. 01.11.2016 vide S.O. 3289(E) dated 25.10.2016.
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