Advocate Ashwani Taneja has explained the relevance of the Benami Act and how far the menace of additions under sections 68 and 69 to 69D of the Income-tax Act, 1961 can continue to haunt under the regime of new Benami Law. The learned author has also explained the law in the embedded video
The most complex question which most of us face now-a-days, is if any assets such as share capital, loans, gifts, gold/jewellery, cash, immovable property or an investment/expenditure in any other form is discovered by any investigative agency; then would the same be subject to provisions under section 68 to 69D of the Income-tax Act or would these be attached as benami property by the authorities under the Benami law?
Further questions arise such as whether action can be taken only in any one of the legislations or there can be simultaneous action under both the Acts? Thus the question arising here is “what is going to be the interplay between these species of legislations? Are they mutually exclusive or cumulative?”
It is quite often seen that there are various types of transactions which are roped in by the Assessing Officers under sections 68 to 69D of the Income-tax Act, 1961. Let us analyse a few such transactions by taking real life situations which have been faced by certain taxpayers after introduction of the new Benami Law, as contained in Prohibition of Benami Property Transactions Act, 1988 (in short referred to as PBPT).
Chronicles of Benami Transactions
Bogus Share Capital
A search operation by the Income Tax Department takes place upon the premises of R Ltd. During the course of search, Mr. R (director-cum-shareholder of R Ltd.) is required to surrender some undisclosed income on the insistence of search officials. Accordingly,
Mr. R makes aggregate surrender of ` 100 crore and also deposits the amount of tax payable thereon. The break-up of the amount so surrendered contains amongst other disclosures, share capital amounting to ` 20 crore received by R Ltd. from B Ltd. During the course of search operation, the statement of Mr. R was recorded wherein he explained as to how the said share capital was routed. It was explained by him that cash of equivalent amount was provided by him to B Ltd., who in turn issued the cheque of equivalent amount to R Ltd. and accordingly R Ltd. issued shares to B Ltd. In the light of such disclosures the search operation was concluded.
Subsequently, notices are issued by the Initiating Officer (hereafter referred to as ‘IO’) under section 24(1) of PBPT Act to all of the aforesaid three parties namely B Ltd, R Ltd. and Mr. R, wherein it was alleged that aforesaid transaction of share capital is a benami transaction. A Provisional Attachment Order (PAO) is also passed by IO under section 24(3) by making attachment of sum of ` 20 crore in the bank account of R Ltd., for the following alleged reasons:-
1) Ltd is not the real owner of the share certificates.
2) Consideration was provided by Mr. R and not by B Ltd. for subscribing into share capital.
3) Mr. R is the real owner of the share certificates and thus beneficial owner under PBPT Act.
4) R Ltd. is benamidar of the aforesaid share capital as per PBPT Act.
5) A sum of ` 20 crores lying in the bank account of R Ltd. is benami property liable to be confiscated under PBPT Act.
Now in the aforesaid given situation, we need to evaluate as to what extent and in what manner can the reasoning and action of the IO be justified under the provisions of PBPT Act.
Let us analyse the transaction and the reasoning of IO in a ‘step by step’ manner:-
a) In this case the admitted position is that cash was paid by Mr. R to B Ltd. And B Ltd. in turn paid the sum via cheque to R Ltd. towards subscription of share capital. Therefore, admittedly the consideration has not been provided by B Ltd. Hence, the IO can strongly assert that first condition of section 2(9)(A) is satisfied.
b) The share certificates are issued by R Ltd. in the name of B Ltd.:
Because of the admission of Mr. R, it can be prima facie alleged by the IO that B Ltd. does not enjoy the true ownership rights of the share certificates. Thus, it can be strongly asserted that B Ltd. does not hold the impugned asset (i.e., share certificates) for its own benefit, but for the benefit of Mr. R who provided the consideration. Accordingly, in the given facts he can at the best hold B Ltd. as Benamidar but NOT R Ltd. as has been done by him, as per provisions of PBPT Act, 1988.
c) The IO’s action of treating the amount of ` 20 crore lying in the bank account of R Ltd. as benami property:
In my view, the IO’s action is not in accordance with law because in this transaction what can be best described as benami property, if at all, are the share certificates issued to B Ltd. in its name on account of the consideration provided by Mr. R and thus what could be matter of attachment is the share certificates only, and not the amount deposited in the bank.
However, there could be some debate on this issue because one may also contend that the amount received by way of cheque by R Ltd. is also benami property in as much as the amount received by R Ltd. from B Ltd. actually belongs to Mr. R.
However, this reasoning would not be sound as when R Ltd. received the cheque, it issued its share certificates to B Ltd. in lieu of the cheque so received and thus the transaction stood squared off in the books of R Ltd.
The next important thing left to be determined here would be the nature and characteristics of share certificates issued by R Ltd. in favour of B Ltd. in the context of PBPT Act.
In my view, in the aforesaid peculiar facts, the IO can very well contend that the real ownership of these share certificates and control is not with B Ltd. but with Mr. R and thus these are benami property of which B Ltd. is benamidar and Mr. R is beneficial owner in terms of corresponding provisions of PBPT.
Now let’s twist the facts here to explore another situation. In the aforesaid facts if cash is paid directly by R Ltd. to B Ltd. then the question may arise as to whether there will be any change in identification and characterisation of the alleged benami property.
The reasonable contention in the light of the changed facts would be that in lieu of cash, B Ltd. issued cheque to R Ltd. and thus transaction stood squared off in the books of B Ltd. Similarly, R Ltd. issued share certificate in lieu of cheque received by it. Therefore the transactions also got squared off in the books of R Ltd. Hence, the moot point is about determination of nature and characteristics of share certificates issued and registered in the name of B Ltd.
In the given situation, one may very well contend that the share certificates registered in the name of B Ltd. are actually beneficially owned by R Ltd. and not by B Ltd. and thus B Ltd. is simply a benamidar and R Ltd. the beneficial owner as per provisions of PBPT Act.
Let us examine a third situation where B Ltd. gives cheque to R Ltd. (in lieu of cash received by B Ltd. from Mr. R) on account of ‘loan’ (and NOT on account of share capital) on which interest is payable by R Ltd. say at the rate of 12% per annum.
In my view, in this scenario also the inference shall remain the same to the extent that the first transaction has gotten squared off in the books of B Ltd. and when R Ltd. issued acknowledgement of the same which is then shown as a ‘loan asset’ by B Ltd. in its balance sheet. What is to be evaluated and determined is the nature and characteristic of said ‘loan asset’ shown by B Ltd. in its books of account. Here also, the Initiating Officer may very well assert and allege that the loan asset is not owned by B Ltd. but Mr. R and B Ltd. is merely benamidar of said asset as per the provisions of PBPT Act.
In my view, it is very important to observe that in all the above three situations if any property could be held to be benami, it could only be the share certificates / loan assets held in the name of B Ltd. and NOT the amount of cheque issued by B Ltd. from its bank accounts. The said cheque amount cannot be even termed as proceeds from sale of a benami property. Thus by no stretch of imagination, the said amount can be made a subject matter of attachment under section 24(3) or 24(4) of PBPT Act. Any such action done by the IO would be illegal per se.
The opponents of the above view may also contend that there would not be any benami property in any of the aforesaid three situations in as much as there is no actual asset in existence here. The argument made by them here is that the share certificates or the loan assets are dummy assets and that dummy assets cannot be treated as benami property.
Though, the argument looks to be quite logical, it is flawed in as much as the admitted facts here show that the impugned assets very much exist on paper and are duly registered and held in the name of B Ltd. Thus, the authorities implementing the benami law would strongly contend that one of the objectives to bring out benami law is also to capture such kinds of benami assets which are actually parked in the name of some benamidar and its enjoyment is done by the beneficial owners. The asset may be created in physical form, on papers or in any dummy form, however so long as its beneficial interest is hidden or lies somewhere else it has to be identified as benami property. This is imperative so as to dig out all the benami properties and prosecute real offenders and to clean the economy of such transitions / assets. The arguments are quite strong from both the sides, but the law available before us is vague and incomplete. All such issues would finally be settled through suitable legislative amendments under the law and/or judgments of higher courts.
Further, all said and done, whatever may be the final position as interpreted by the courts with respect to determination and attachment of benami property, one thing is clear that the consequences of making a surrender (whether forced or voluntary) during the course of search and survey carried out during the income tax proceedings are now far more disastrous than what these used to be until new PBPT Act had not spread its tentacles.
Legal position where no ‘admission’ or ‘surrender’ is made
In the three situations dealt above it was presumed that there was a clear admission that cash was originally paid by Mr. R or R Ltd., and that B Ltd. did not have any beneficial interest. However the question arises that, if there is no admission from any party and additions are made by Assessing Officer under section 68 of Income-tax Act 1961, by treating the amount of share capital / loan received by the company as unsubstantiated, then whether on the basis of such additions can the IO under PBPT Act treat such share certificate / loan assets as benami property and such shareholders / loan creditors as benamidar and such assessee (or alleged payer) as beneficial owner?
On properly breaking down the legal provisions, I am of the well thought out view that though the undiluted principles might remain same, there would a material change on account of huge distinctions in the parameters of onus of proof as stipulated in the two pieces of legislation i.e., Income-tax Act 1961 and PBPT Act. It is a well accepted fact that the fabric of Income tax law is woven in such a fashion that various additions and disallowances are made by the Assessing Officer also on a deemed basis since the income tax law permits the Assessing Officer to do so, e.g., addition on account of deemed dividend under section 2(22)(e) and additions under sections 68 to 69D of the Act and so forth and so on.
However, the fabric of Benami Law is totally different in this regard. The perusal of provisions of the PBPT Act, 1988 show that under this law no deeming actions are permitted to be done on the part of IO. Even otherwise, it is well settled position of law coming from various courts including the Hon’ble Supreme Court that the burden to prove a property as benami property is upon the person who asserts it so. Ready reference can be made to the landmark judgment of the Supreme Court in the case of Jaydayal Poddar vs. Bibi Hazra, [(1974) 1 SCC 3].
There would therefore be heavy burden cast upon the Initiating Officer to lay down concrete initial proof that the aforesaid share certificates / loan assets are benami property and to do so the IO could be duty bound under the law to bring out positive evidences on record to demonstrate that cash came from the coffers of Mr. R or R Ltd. and that B Ltd. does not have any beneficial control and interest over such assets. Merely because an Assessing Officer under the income tax proceedings deemed the said asset as unexplained and accordingly deemed it as the unexplained income of R Ltd, it would not ipso facto give powers and jurisdiction to the IO under the PBPT Act to presume a state of fact and then treat it as benami property and hold B Ltd. as benamidar and R Ltd. or Mr. R as beneficial owner on a deemed basis.
Let us analyse a few more transactions which may be hit under sections 68, 69 to 69D of the Income-tax Act 1961.
Apart from the issues arising under section 68 of the Income-tax Act we quite often face transactions which are treated as unexplained expenditure/investment by the Assessing Officer. One of the most pertinent question here would also be as to if any item/ transaction is covered by the Assessing officer under section 69 to 69D of the Income tax law whether the same would still be liable to be covered under PBPT Act? Let’s try to analyse on the basis of some real life examples as discussed under:
A car going from Delhi to Chandigarh is intercepted by the Police and a huge sum of cash is recovered which is handed over to the Income Tax department. There were 2 passengers in the car namely Mr. A and Mr. B and when the interrogation is done by the Income tax department it is informed by Mr. B that cash was delivered to him by Mr. Y, with the instructions to deliver it further to Mr. Z. Then interrogation is done of Mr. Z who denies any knowledge of Mr B and the cash. Thereafter inquiry is done from Mr. Y who claims that cash was handed over to him by Mr. X for onward delivery to Mr. B.
In a nut shell, the real source and ownership of the cash is not explained by any person. Thus, under these circumstances the investigation wing of the Income tax department hands over the matter and all the statements recorded of all these persons to the Benami Prohibitions Unit (BPU).
Thereafter the BPU makes requisite enquiry from Mr. B and treats the amount of cash as benami property and Mr. B as benamidar and holds that the identity of the beneficial owner is not known. Under these circumstances let us analyse whether action of the IO is justified. The first question to be decided here is whether the impugned amount of cash is liable to be dealt with under section 69 of the Income-tax Act or under benami law or it can be covered under both?
In my considered view, the scope and object of new Benami Law is to deal with the assets held in the name of a person, whose real owner is someone else. So the first question that would arise here is that whether ‘cash’ can be said to be held in the ‘name’ of any person, because cash is not registered or titled in the name of any person. The ostensible ownership of cash is always considered by way of its possession. As per my thoughts and analysis, if the ownership of the cash is admitted and accepted in hands of the possessor, then the operation of Benami Law would be ousted and in that case it would be liable to be examined under section 69 of the Income Tax Act only. On the other hand, if the person in whose possession cash is found denies it’s ownership, then it would be difficult for an Assessing Officer to make its assessment under section 69 of the Income-tax Act, 1961 in the hands of such person. That is where the real role of Benami Law comes into play. In the given scenario, since Mr. B denied any kind of ownership of impugned amount of cash, the benami law officer got an occasion to examine it under the provisions of PBPT Act.
If we analyse provisions of Section 2(9) of the PBPT Act which defines benami transaction we find that its clause (D) may be relevant here and therefore reproduced hereunder for ready reference
2. In this Act, unless the context otherwise requires,—
(9) "benami transaction" means,—
(D) a transaction or an arrangement in respect of a property where the person providing the consideration is not traceable or is fictitious.
A reading of clause (D) suggests that the IO may very well contend that the cash (property) is held by Mr. B as a result of a transaction/ arrangement where the person providing the consideration is not traceable or fictitious and therefore impugned amount of cash recovered falls under the purview of benami transactions and is a benami property under section 2(8), being subject matter of benami transactions and the benamidar is Mr. B and beneficial owner is not known.
It may be quite interesting to note that the definition of beneficial owner which as per section 2(12) means a person, whether his identity is known or not, for whose benefit the benami property is held by a benamidar.
Thus, as per law it is not mandatory for the IO to identify the beneficial owner before declaring a property to be a benami property. However, a word of caution to be kept in mind here is that though it may not be necessary to identify the beneficial owner, it is essential for the IO to demonstrate and accordingly give a finding that the beneficial owner of the alleged beneficial property is someone other than the alleged benamidar. I would not hesitate in mentioning that the aforesaid views are highly debatable and subject to various ‘ifs and buts’. The law contained in PBPT Act is highly vague especially in absence of any statements of subjects, explanatory notes to the clauses or any other background material. Therefore a better picture would emerge when lot of churning is done before the courts and accordingly views are expressed by the courts.
The position with regards to gold, diamond or jewellery being movable property and not being capable of being registered in the name of a particular person would be similar. However, the attempt to explain the ownership of the same may be made by a person in whose possession it is found with the help of supporting bills/ invoices. The underlying principles for its treatment under sections 69-69D of the Income-tax Act vis-a-vis section 2(9) of the PBPT Act would broadly remain the same as discussed above in the case of cash. Undoubtedly there would be some variation in the practical approach of various officers depending upon situations and mode and manner of recovery of such assets.
Anecdote of Shares
Let us now analyse the possibility of treatment of shares held by a person as benami property. The shares are registered and held in the name of a particular person. Hence the approach to be followed by officers would be slightly different as compared to the other movable assets as discussed above for choosing the proper course of action for making assessment under sections 68 to 69D, or covering the same under the net of Benami Law. If the shares are found to be registered in the name of say
Mr. B, but it is found by the concerned officers that consideration for its acquisition was say provided by Mr. R and it is also found that there shares are beneficially enjoyed by Mr. R and not Mr. B, then it would be a simple and straight case of shares being benami property where Mr. B would be benamidar and Mr. R would be beneficial owner.
On the other hand, if it is found by the officer that the shares are registered in the name of Mr. B and held by Mr. B but he is neither able to explain the source for providing the consideration for its acquisition nor is he able to prove that its consideration is provided from disclosed sources and there is nothing in the possession of the IO to suggest that the shares are not beneficially held by Mr. B, then the IO has no jurisdiction to treat the same as benami property. However, the Assessing Officer would be very much within his rights to make an addition under section 69B in the hands of Mr. B. Similar principles can be followed for treatment of all such properties which are or capable of being legally registered in the name of a particular person e.g. debentures, bonds, FDRs, immovable properties and so forth and so on.
Corporate veil : How far it survives under Benami Law
It is quite often seen that many companies are found struggling with the issue raised by the Assessing Officer in the assessment proceedings for substantiation of amount of cash credits in the form of share capital/loans received by them. If the assessing officer finds that the assessee company is not able to discharge its onus as stipulated under section 68 of Income- tax Act 1961 to explain the nature of source of any such sum, then the same may be deemed to be income of assessee and added as such under section 68 of Income Tax Act, 1961. However, the next question that arises under such cases is that under the PBPT Act proceedings, up to what extent can the IO go in making attachment of the properties of any such company where the addition has been made under section 68 of Income-tax Act, 1961. In other words, under such cases where addition has been made under section 68, whether the Initiating Officer can make attachment of the amount or also the properties acquired by the company from such amount or both or none. This is one of the most frequent questions which is being analysed on both sides i.e., Benami Law officers on the one side and professionals and their clients who are affected under this law on the other side.
Before proceeding further on this issue, it is relevant here to recapitulate that company duly incorporated under law of the land is treated as separate legal juristic person under the eyes of law which is different from its shareholders. The shareholders may have beneficial interest in the assets of the company through their shareholding in the company but they are never deemed to be owner themselves of the assets/ properties of the company. The principles in this regard were laid down way back in the case of Mrs. Bacha F.Guzdar vs. CIT [SC (1955) 27 ITR 0001]/ Salomon vs. Salomon & Co Ltd [UKHL 1, AC 22 (1897)], wherein it was clearly laid down that there is a corporate veil between the shareholder and the company which cannot be lifted except through the due process of law.
Thus, coming back to the issue before us, the amount treated as unexplained income in the hands of the company may be unexplained income of that company or shareholder or any other person, however once the said amount comes in domain and control of the company and the company becomes its rightful owner then it cannot be categorised as a benami property.
Further, in any case, the assets / properties acquired by the said company from such amounts are assets of the company acquired in its own right and control and shown as such in its balance sheet. Thus, under these circumstances the company would be its legal as well as it’s beneficial owner and therefore benami law would have no application. If the IO alleges otherwise, then it will be his primary obligation to prove it so and that too with the help of positive and cogent evidences to prove and demonstrate that the said assets / properties are beneficially enjoyed by certain other person(s) and NOT by the said company and that the said company is holding it only for the name sake purposes. Thus, it will be an altogether different exercise to be done by IO within the framework of provisions of the PBPT Act and read with relevant provisions of the Indian Evidence Act, 1872 and other applicable allied laws. In any case, the IO does not have the power or justification to treat such assets/properties as benami on deemed basis merely for the reason that the original amount of share capital or loan received by it was not found to be properly substantiated in the opinion of the IO or the Assessing Officer during income tax proceedings.
Buying benami property for loved ones
It is like a ritual in our country for an individual to buy property in the name of loved ones viz spouse, children, parents, brothers or sisters. Fortunately, the PBPT Act, 1988 excludes such transactions from the definition of benami transaction as contained in section 2(9)(A). However, there is a serious rider to claim the benefit of such exclusion. The Act stipulates that the consideration for such property has been provided or paid out of ‘known sources’ of the individual who has bought such property.
However, if the IO finds that the consideration is not paid or provided out of ‘known sources’ of the individual, then he may refuse to give the benefit of exclusion and may thus treat such property as benami property and such individual as beneficial owner and the other person as benamidar of such property.
The story does not end here. The assessing officer may also require such an individual to explain and substantiate source for acquisition of such property in terms of section 69S to 69 D of the Income-tax Act, 1961 and in case he is not satisfied with the explanation, he may make addition to the taxable income of such individual on account of consideration paid or provided for buying such property. Thus, there would be parallel action under both the laws.
However, next question that arises here is that what is meaning of the expression ‘known sources’. It may be noted that usually the expressions used so far in other legislations have been like “disclosed sources…” or “declared sources…..” or “out of the sources on which tax has been paid…”etc. However, this kind of expression ‘known sources’ has been used for the first time to my knowledge. Thus, how it will be different from ‘disclosed/declared sources’ is matter of interpretation and debate. The PBPT Act, 1988 has not defined the meaning of the expression ‘known sources’, therefore everyone will make its own guess to find out contextual meaning of this expression as has been used by the legislature. One thought that comes here is that expression ‘known sources’ is wider than the expression ‘disclosed/declared sources’. Thus, something which can be described and has proper identity should fall within the scope of the said expression. It can be something disclosed/declared and also something though not disclosed/declared but otherwise known or identified which can be described. But to be covered within the meaning of ‘disclosed/declared’ the nature of the amount should be the one which has been disclosed/declared to Income Tax or other authority.
Further, the other important aspect to be noticed here is that the legislature has not used the expression “known sources of income”. It is because of the fact that a person may make borrowings also from where consideration may be paid. Thus with a view to take care of such a situation, the word ‘income’ has been removed on the recommendation made by the Standing Committee on Finance of the Parliament in its 28th Report presented before Parliament on 28th April, 2016.
Beware of the ‘catch’
In addition to the aforesaid rider, in order to claim the benefit of exclusion of the property purchased in the name of brother, sister, parents, lineal ascendant or descendant, there is one more requirement as per the law that there should be joint ownership of the person providing the consideration along with the person in whose name property is purchased. If the property is not in joint ownership, then it may fall in the definition of Benami Transaction and may be treated as Benami Property and then all the consequences as provided under the law may follow.
Interplay with other laws:
Before concluding our discussion on the topic, I would like to draw the attention of the readers upon two very significant provisions of PBPT Act, 1988:
Section 60 of PBPT, 1988 provides that the application of other laws is not barred. It states that 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.
Similarly, Section 67 provides that this Act shall have overriding effect. It states that the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
From combined reading of aforesaid two provisions, following distinctive features of this new law can be noted:-
1) The provisions of PBPT Act, 1988 operate in addition to the provisions of any other law. In other words, it is quite possible that in any given situation, Benami Law, Income-tax Act, Prevention of Money Laundering Act, 2002 as well as any other law can be applied simultaneously if requisite conditions of application of any such law exist. Thus, in other words the application of Benami Law is not mutually exclusive to application of any other law and vice-versa. A person may have been given clean chit under Income Tax provisions, but it would not mean that he would be automatically given clean chit under Benami Law also. Thus, it would purely depend upon the facts and the circumstances of the case leading to the violation in concerned laws. Thus, Benami Law may have a multiplier effect also.
2) PBPT Act, 1988 has overriding effects on the provisions contained in any other law. However, in many cases it is noted that few Initiating Officers in their orders (i.e., Statement of Case) have missed out one important point that PBPT Act’s provisions shall have overriding effect only where there is a provision in any other law which is inconsistent with the provisions of PBPT Act. Thus, if there are no inconsistent provisions in Benami Law applicable to a particular scenario, the effect of the provisions of other laws are not barred or nullified. For example, Section 91 and Section 92 of “Indian Evidence Act” provide that where documentary evidence and oral evidence are compared, then documentary evidence shall have precedence over the oral evidence. As there is no contrary provision in this regard in “The PBPT Act”, any authority under Benami Law cannot simply disregard the provisions of Section 91 and Section 92 of Indian Evidence Act by simply taking shelter of Section 67 of “The Prohibition of Benami Property Transactions Act”, 1988.
It is to be carefully noted that the fabric of benami law is structured in a unique manner. Adequate care needs to be taken now by the citizens of this country to ensure that no benami transaction is done by them, either knowingly or otherwise. Further, there is a heavy onus placed upon the professionals to ensure that all the replies/clarifications under Income-tax or any other law should not be filed in any careless or casual manner as this could lead to pushing his clients into the deep well of Benami Law. Further, the replies to notices and submissions under the benami law need to be submitted, right from the stage of Initiating Officer, after properly appreciating the fine principles of this law. Any incorrect or wrong information may put his client as well as concerned professional into difficulty.
All said and done, this is a new law and mostly vague so far. It is yet to evolve with the help of court judgments and suitable amendments or clarifications from the legislature. Thus, views expressed herein are personal views based upon my thinking, observations and experiences gained from day-to-day handling of the proceedings before the Initiating Officers, the Adjudicating Authority and the Appellate Tribunal. I hope I shall be pardoned by the readers for something stated herein inadvertently which is felt to be inaccurate or imperfect.
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