Advocate Narayan Jain and FCA Dilip Loyalka have explained the salient features of the Prohibition of Benami Property Transactions Act as amended in 2016. The precise manner in which the Act identifies benami transactions has been pinpointed. The consequences that will befall persons caught with benami property and the statutory remedies available to them have also been highlighted
Benami Transactions (Prohibition) Act, 1988 was introduced as an Act of the Parliament in 1988 to prohibits certain types of financial transactions. The 1988 Act had come into force on 5th September, 1988. Although benami transactions were declared illegal due to enactment of the said Act, the Act had limited success in curbing them. Updated versions were therefore passed in 2011 and 2016, seeking to more comprehensively and effectively enforce the prohibitions.
One of the leading issue in Indian economy is the effort made by the Government to tackle the problem of black money and related illegal economic activities. Several efforts were made by the Government to fight black money, money laundering etc. One such serious step is enactment of the Benami Transactions (Prohibition) Amendment Act 2016. The amended Act has come into effect on 1st November, 2016. The modified new legislation will be known as Prohibition of Benami Property Transactions Act, 1988 (PBPT Act).
The Act is going to be an ace weapon to track black money supplementing the Income Declaration Scheme 2016 and the demonetisation programme carried out by the Government.
“The Benami Transactions (Prohibition) Amendment Act, 2016” was notified to come into force from 1 November 2016.The 2016 Act also has safeguard mechanisms such as the adjudicating authority and the appellate mechanism for appeals.
Compared to the previous legislation, the modified Act is more clear but stern in terms of its treatment of Benami Property Transactions. The PBPT Act defines benami transactions, prohibits them and further provides that violation of the PBPT Act is punishable with imprisonment and fine. The PBPT Act prohibits recovery of the property held benami from benamidar by the real owner. Properties held benami are liable for confiscation by the Government without payment of compensation. We are analyzing in this article salient features relating to Benami Property Transactions law as amended in 2016.
1. What is Benami transaction?
The original 1988 Act defined a benami transaction as a transaction where a property is held by or transferred to a person, but the consideration has been provided for or paid by another person/ third party. After amendment in 2016, Prohibition of Benami Property Transactions Act, 1988 (PBPT Act) has widened the definition of benami transaction and added other transactions such as property transactions where:
(i) the transaction is made in a fictitious name,
(ii) the owner is not aware of or denies knowledge of the ownership of the property, or
(iii) the person providing the consideration for the property is not traceable.
As per Clause 2(8) of Benami Transactions (Prohibition) Amendment Act, 2016, Benami Property” means any Property which is the subject matter of a Benami transaction and also includes the proceeds from such property”.
As per clause 2(26) "Property" means assets of any kind, whether – movable or immovable,tangible or intangible,corporeal or incorporeal andincludes 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;
However, Property transactions among family members is not benami transaction. Here, the Act clearly sets the limit of relationship. Only lineal ascendants (father, mother, grandparents and great grandparents) and lineal descendants (children, grandchildren and great grand children) are considered as family members.
Meaning of Benami as per "Merriam Webster" dictionary: made, held, done, or transacted in the name of (another person) used in Hindu law to designate a transaction, contract, or property that is made or held under a name that is fictitious or is that of a third party who holds as ostensible owner for the principal or beneficial owner.
Large scale Benami deals happened when land reforms entailed the abolition of zamindari, giving tillers rights to own the land as well as imposition of agricultural land ceilings. In urban areas, this became quite rampant after the passage of the now-scrapped Urban Land (Ceiling and Regulation) Act, 1976.
2. What is Benami Property?
The word Benami property means the property which has been purchased in the name of some person other than the person who has financed it. The person who has rendered the required money for the said purchase has not purchased it in his name but in the name of some other person. The person who financed the property has not really purchased it to the benefit of the person on whose name he has purchased it.
Simply, benami property is the one whose legal owner is different from the actual owner.Benami Transactions (Prohibition) Act, 1988 is an Act of the Parliament of India that prohibits certain types of financial transactions. The act defines a ‘benami’ transaction as any transaction in which property is transferred to one person for a consideration paid by another person. Such transactions were a feature of the Indian economy, usually relating to the purchase of property (real estate), and were thought to contribute to the Indian black money problem. The act bans all benami transactions and gives the government the right to recover property held benami without paying any compensation.
Some features in Benami transactions are :
a) The beneficial ownership vests on the real owner.
b) The Benamidar bears the ostensible title as described in the Tranfer of Property Act, 1882.
c) There is no intention to benefit the person in whose name the transaction is made by the person who has financed the purchase of the said Benami property.
d) The name of that person, Benamidar, is an alias for that of the person beneficially interested the real owner.
The amended Act gives a comprehensive definition of benami property. Benami essentially means property without a name. The term “Benami” has its origin from the Persian language. Benami property or assets, therefore, is a reference to property/assets whose actual owner is not the person in whose name it is. Benami deals have been quite common in India; cases date back to the late 19thcentury.
As per the amendment, Benami property includes: immovable assets such as land, flat or house, movable assets such as gold, stocks, mutual fund holdings, bank deposits etc. If the property is sold, then the proceeds from the sale is also included under Benami property.
3. What transactions are considered as Benami Transactions?
As per Section 2(9) of Benami Transactions (Prohibition) Amendment Act, 2016 Benami Transactions are as per Table A below:
Table-A : Transactions considered as Benami Transactions:
(i) A Transaction or an arrangement, 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
(ii) The property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration. (There are some exemptions in point (ii) as given below in Table – B)
(iii) A transaction or an arrangement in respect of a property carried out or made in a fictitious name.
(iv) 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;
(v) A transaction or an arrangement in respect of a property where the person providing the consideration is not traceable or is fictitious.
(also see next question)
4. What transactions are NOT considered as Benami Transactions?
As per Clause 2(9) of Benami Transactions (Prohibition) Amendment Act, 2016,the following are NOT considered as Benami Transactions (as per Table B):
i) 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 –
a) 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
b) 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;
c) 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;
d) 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 such 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.
ii) 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:
(a) 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;
(b) stamp duty on such transaction or arrangement has been paid; and
(c) the contract has been registered.
5. What are the consequences if any person is caught with ‘benami’ property?
The Act prohibits illegal benami transactions, and provides imprisonment up to seven years and fine for violation of the Act which may extend to 25% of the fair market value of the benami property. If any person is caught with ‘benami’ property, he may be prosecuted and punished. Providing false information about benami transaction may also lead to prosecution.
The Act also provides for confiscation of the property and non-return of the property from the benamidar to the real owner. There is no compensation by the Government if the property is confiscated. The Act has tried to sort out the weaknesses of the existing provisions and is remarkable in terms of the following features:
6. What are the Highlights of the amended Act ?
Some of the highlights of the Act are:
a) Up to seven years’ imprisonment and fine for indulging in Benami transactions.
b) Furnishing false information is punishable by imprisonment up to five years and fine.
c) Properties held Benami are liable for Confiscation by Government without compensation, holding the propertybenami and then refer the case to Adjudicating Authority.
d) Adjudicating Authority will then examine evidence and pass an order.
e) Appellate Tribunal will hear appeals against orders of Adjudicating Authority.
f) High Court to hear appeals against orders of Appellate Tribunal.
7. What is institutional framework for the implementation of the law?
The main weakness of the earlier Act was that there was lack of an institutional machinery to carry out Benami transaction procedures in an effective manner. The amendments in 2016 have created the required institutional arrangements for implementation of the law. Under the Act, an Authority to acquire benami properties was to be established by the Rules. The Bill seeks to establish four authorities to conduct inquiries or investigations regarding benami transactions:
(i) Initiating Officer,
(ii) Approving Authority,
(iii) Administrator and
(iv) Adjudicating Authority.
The Act gives the Initiating Officer the power to enquire into any person, place, documents or property in the course of investigation into any matter related to a benami property transaction. Interestingly, the Act covers all domestic benami property transactions conducted since 1988.
8. What actions have reportedly been taken after 2016 amendments for the implementation of the law?
Several benami transactions have been identified since the coming into effect of the amended law. Show cause notices for provisional attachment of benami properties have been issued in many cases involving properties of the value of considerable amount. Out of these, provisional attachment has already been effected in more than 100 cases. The benami properties attached include deposits in bank accounts and immovable properties. It may be noted that the Income Tax department is the enforcing department to take action in cases of benami properties.
The concern on Benami transaction came into light with full emphasis, in the year 2014 “in the election manifesto of the political party now in power at the Centre.
9. Why some people used to acquire property benami ?
There are numerous purposes mainly of those are illegal ones and only to accomplish the illegal intentions. Some of these are :
a) The Benami transactions were made in order to find a way with the land ceiling laws, so the real owner can have more landed properties than provided in the abovementioned laws.
b) The benami transactions are made to transfer the property in the name of the relatives of the real owner or some other’s name to evade income tax as well as other taxes.
c) Benami transactions were also used as a way to conceal black money obtained through corrupt practices.
10. What punishment and penalty can be imposed if any person holds a benami propertyor enters into a Benami transaction?
Anyone entering into a Benami transaction for whatever reason, to defeat the law, avoid payment of statutory dues or creditors or abetting such a transaction is liable for rigorous imprisonment for a period between one and seven years as well as fine up to 25 per cent of the fair market value of the property.
Anyone providing false information or providing false documentation can get rigorous imprisonment of six months to five years and may also have to pay fine up to 10 per cent of the fair market value of the property.
It is submitted that the provision for confiscation of Benami property without consideration, is enough deterrent.However the provision for rigorous imprisonment for a period upto seven years as well as fine up to 25 per cent of the fair market value is quite unfair and stringnent and the Government should urgently review the same to be fair.
11. What steps have been taken by CBDT to catch benami properties ?
About 25 special units across India have been formmi ed by the CBDT in 16 regional/zonal offices, across India have been formed to implement its action-plan against benami properties in India. These special units are formed only to investigate and take action against all those individuals and entities related to undisclosed domestic and foreign properties. Each unit will have four to five members, including 3 to 4 Income Tax officials, one Additional Commissioner/ Joint Commissioner and one Deputy Commissioner. Each unit would be headed by an Additional Commissioner.
The CBDT has issuedNotification No. 36/2017 [S.O. 1621(E)], dated 18-05-2017in exercise of its powers conferred under sub-section (2) of section 28 read with section 59 of the Prohibition of Benami Property Transactions Act, 1988, and in supersession of earlier Notification No. S.O. 3290(E), dated the 25th October, 2016, and has directed that theIncome-tax authorities under section 116 of the Income-tax Act, 1961, having headquarters at the places specified in the said Notification dated 18.5.2017, to exercise the powers and perform the functions of the ‘Authority’, under the Prohibition of Benami Property Transactions Act, 1988, in respect of the territorial areas specified in the said Notification.
The designated authority would be reporting to the respective Director General (DG) in that city, who would be in co-ordination with CBDT Chairperson on real time basis.
The IT department has identified more than 200 benami properties. The main focus would be benami properties that include flats, apartments, bungalows, plots, bank accounts, jewelleries etc.
In the public interest, the department had informed through advertisements in newspapers, warning that benami properties would get attached and confiscated, with rigorous imprisonment of up to seven years.
Harsh punitive actions are likely to be taken against the deviant Shell Companies including freezing of Bank Accounts, striking off the names of dormant companies, invocation of Benami Transactions (Prohibition) Amendment Act, 2016. Action is contemplated against Shell Companies so as to prevent their misuse for money laundering and tax-evasion, especially in the context of unearthing black money, post demonetization. In an analysis of such companies, it has been found that large amount of cash had been deposited in these entities during November-December, 2016 period. Serious Fraud Investigation Office (SFIO) has filed criminal prosecution for cheating National Exchequer after investigation of entry operators.
These information has been shared with SIT, Income Tax Department, Enforcement Directorate, SEBI and The Institute of Chartered Accountants of India (ICAI). Income Tax Department has reopened completed assessment in these cases and Enforcement Directorate has initiated action under Prevention of Money Laundering Act (PMLA), 2002. It is learnt that ICAI has also initiated disciplinary proceedings against its members. Winding up process has been initiated in respect of many Shell Companies.
In order to create a credible deterrence a “Whole of Government Approach” will be adopted through co-ordinated efforts and by leveraging technology. It has also been decided that appropriate red flag indicators would be used for identifying shell companies, and a data base of such companies and their Directors would be built by pulling in information from various agencies. The data base will also capture Aadhar number of individual Directors in the companies.
It is learnt that there are about 15 lakh registered companies in India; and only 6 lakh companies file their Annual Return. This means that large number of these companies may be indulging in financial irregularities.
It is learnt that a Task Force has been set-up under the Co-chairmanship of the Revenue Secretary and Corporate Affairs Secretary with members from various regulatory Ministries and Enforcement Agencies to monitor the actions taken against deviant shell companies by various agencies.
A Task Force with members from various regulatory Ministries and Enforcement Agencies has been set-up under the Co-chairmanship of the Revenue Secretary and Corporate Affairs Secretary to monitor the actions taken against deviant shell companies by various agencies.
The department has formed a special unit called Benami Properties Unit (BPU) to identify and probe such assets. Apart from politicians, there are hundreds of such properties belonging to some top businessmen in the country.
12. What impact Benami Transactions (Prohibition) Act is likely to create after amendment in 2016?
The new Benami Transactions (Prohibition) Act, after its amendment in 2016, offers a wider scope. With its wider scope the new Act will be a great help to deal with this social fallacy i.e. Benami properties. Due to the narrow and ambiguous scope of the earlier Act of 1988, many such cases regarding Benami properties could not be effectively solved. But now with the wider and specific scope, the said such cases can be easily proved in the court of law.
The popular perception of “Benami property” has now undergone a sea change and it will include all transactions and arrangements even beyond the transactions in respect of immovable property.
The Benami Transactions (Prohibition) Amendment Act, is certainly a very comprehensive piece of legislation and also very stringent. There could be scope for harassment but how that plays out in practice, remains to be seen.
There is a saying of Justice Holmes “Taxes are what we pay for civilized society. I like to pay taxes, with them I buy civilization .”
12. Is there any reward to the informants of Benami Property?
The CBDT has introduced the Reward Scheme for informants giving information of benami property actionable under Prohibition of Benami Property Transactions Act, 1988 as amended by Benami Transactions (Prohibition) Amendment Act, 2016 vide Letter [F.NO.299/31//2017-DIR (INV.III)/22], Dated 23-4-2018. The salient features of the said scheme are as under:
(a) A person can get reward up to Rs. One crore for giving specific information of benami property. Identity of the informant shall be kept confidential.
(b) The information given by the informant can be treated as specific information under the scheme only if it includes:
(i) verifiable particulars of the benami property;
(ii) name and address of the person in whose name the property has been acquired (benamidar); and
(iii) credible basis including supporting evidence for the information that the property was actually benami property.
(c) Procedure of furnishing information
(i) A person who wants to give specific information in expectation of reward may contact the Joint Commissioner of Income Tax/Additional Commissioner of Income Tax (Benami Prohibition) [hereinafter referred to as ‘JCIT/Addl. CIT (BP)’] having jurisdiction over the place where the benami property is situated.
(ii) If the JCIT/Addl. CIT (BP) feels that the person has given specific information of benami property, he will give one set of prescribed form as per Annexure-A to such person who shall fill, sign and submit it to the JCIT/Addl. CIT (BP).
(iii) If there are more than one benami properties located at different places, the person may give information to any of the JCsIT/Addl. CsIT (BP) having jurisdiction over any of these properties.
(iv) Where the person gives information about benami properties to any other Income Tax authority, such other authority shall forward such information and guide him to the jurisdictional JCIT/Addl. CIT (BP). Where there are more than one BP (Benami Property) units at a place, such person may be directed to approach the jurisdictional DGIT (Investigation).
(v) If the information is furnished by a group of persons, the prescribed form, statements, etc. shall be filled and signed by all such persons, jointly and Informant code will be allotted to each of them separately. The reward payable in such cases, if any, shall be disbursed in equal proportion, unless specified otherwise by such persons at the time of furnishing information in the prescribed format (Annexure -A).
(vi) Where a foreign person wants to give information of benami property actionable under the Act, he may contact the Member (Investigation), CBDT, North Block, New Delhi-110001 either in person or by post or by a communication at email id email@example.com with a copy to firstname.lastname@example.org for further action. He may take assistance of Income Tax Overseas Units (ITOU) working in Indian missions in some foreign countries in this regard.
(vii) The informant shall be liable to render assistance as may be required by the JCIT/Addl. CIT (BP) or any other investigating officer to whom the JCIT/Addl. CIT (BP) concerned may assign the investigation into the information given by the informant.
(viii) The informant will be allotted a code and after the lime of allotment of Informant Code, the person shall be identified with such Informant Code only and his actual identity shall be known to the JCIT/Addl. CIT (BP) only.
(ix) In case of any difficulty, the person desirous of giving specific information of benami property, may contact the PDIT (Inv)/DIT (Inv) of the area. The decision of PDIT (Inv)/DIT (Inv) will be final in the matter of allotment of Informant Code under this scheme.
(d) It should be noted that furnishing false information/evidence is an offence and a person giving false information/evidence/statement will be liable to be prosecuted for such offence.
(e) When reward may be granted :
An informant under the scheme can be granted interim and final reward by the competent authority.
(i) Interim reward can be granted on fulfillment of the following conditions:
(a) the informant has given specific information of benami property in the prescribed format in Annexure-A and obtained informant code under the scheme;
(b) provided assistance required, if any, by the AddL/JCIT (BP) or any other investigating officer to whom the JCIT/Addl. CIT (BP) concerned may assign the investigation into the information given by the informant; and
(c) pursuant to such information, the benami property has actually been provisionally attached under Section 24(4) of the Act.
(ii) Final reward can be granted on fulfillment of the following conditions:
(a) the informant has given specific information of benami property in the prescribed format in Annexure-A and obtained informant code under the scheme;
(b) provided assistance required, if any, by the AddL/JCIT (BP) or any other investigating officer to whom the JCIT/Addl. CIT (BP) concerned may assign the investigation into the information given by the informant;
(c) the benami property has been confiscated under Section 27 of the Act; and
(d) Such confiscation has become final in judicial proceedings after confiscation order is passed. The confiscation shall be deemed to be final if two years have passed from the date of confiscation and there is no litigation pending against such confiscation.
(f) Amount and stage of granting interim and final reward
(i) Interim reward up to 1% (one per cent) of the fair market value, as defined in the Act, of movable property, and circle rate, as defined in this Scheme, of immovable property, provisionally attached under section 24(4) of the Act may be granted by the competent authority on fulfillment of eligibility conditions under the scheme subject to the maximum ceiling of an amount of interim reward of Rs. Ten lakh in respect of information of a single benami property.
(ii) Final reward up to 5% (five per cent) of fair market value, as defined in the Act, of movable property, and circle rate, as defined in this Scheme, of immovable property, confiscated under the Act may be granted by the competent authority on fulfillment of eligibility conditions under the scheme. While granting the final reward, the amount of interim reward paid, if any, shall be reduced from the total final reward granted. However, maximum amount of total reward (interim and final) in respect of a single benami property shall be limited to Rs. One crore.
(iii) If there are more than one benami properties informed in a single Annexure – A form, reward shall be computed on the basis of entitlement applying the above percentage rates and maximum limits individually for each benami property.
Narayan Jain, Advocate and Dilip Loyalka, FCA are authors of the book “How to Handle Income tax problems”
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