Re: Prohibition of benami property transaction act 1988
Whether section 3 of prohibition of Benami property transaction act,1988 is prospective or retrospective?
The Benami Transactions (Prohibition) Act, 1988 (BTP Act) as the name suggests was enacted in the year 1988. Subsequently, after nearly three decades, Benami Transactions (Prohibition) Amendment Act, 2016 was enacted on November 1, 2016 amending the Act of 1988 via an insertion.
However, Section 1 (3) BTP Act was not suitably amended which has resulted in much confusion.
Section 1(3) is usefully extracted as under:
“(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.”
There are diverging views from different Hon’ble High Courts on the subject matter of retrospectivity of the 2016 provisions
The Hon’ble High Court of Rajasthan in the case of Niharika Jain & Ors. v Union of India S.B. Civil Writ Petition No. 2915/2019 dated July 12, 2019 held that the 2016 Benami Amendment cannot be applied retrospectively.
Pursuant thereto, the Hon’ble High Court of Chhattisgarh in the case of Tulsiram vs. ACIT Writ Petition (C) No. 3819 of 2019 dated November 15, 2019 wherein the contention of the Petitioner with respect to retrospective effect relying upon the above decision of the Hon’ble High Court of Rajasthan was dismissed.
Further, the Hon’ble Calcutta High Court in the case of M/S. Ganpati Dealcom Pvt. Ltd vs Union of India & Anr WP No. 687 of 2017 dated December 12, 2019 held that the 2016 amendment is a new legislation and in order to have retrospectivity it should have been specifically provided therein that it was intended to cover contraventions at an earlier point of time and that express provision was not there.
A SLP against the order of the Hon’ble Calcutta High Court has been filed before the Hon’ble Supreme Court and the matter is pending .
In the case of Mangathai Ammal (Died) v. Rajeswari & Ors. Civil Appeal No. 4805 of 2019 (Arising Out of SLP (C) No. 29642 of 2016), dtd. 9-5-2019 (SC), the Apex Court of the land while dealing with issue of retrospective effect of the Benami Amendment Act, 2016, in unambiguous terms held that Benami Transaction Act would not be applicable retrospectively.
Also see Ganpati Dealcom (P.) Ltd. v. Union of India (Cal-HC), oseph Isharat v. Rogy Nishikant Gaikwad 2017 (5) ABR 706 (Bom-HC) and Niharika Jain v. Union of India (Raj-HC) for similar view.
Refer Tulsiram v. Assistant CIT (Chhattisgarh-HC) for opposite view.
CA. Manoj Gupta,
Jodhpur
9828510543
If a counsel has distorted the matter of the assessee in a Benami Matter and Adjudication has also pronounced judgement in favour of I.O and an appeal which too does not make justice with the assessee, can a fresh Petition be filed in Appellate Tribunal by the assessee.