Great Pacific General Trading Company (Limited Liability Partnership) V. Union of India, through the Secretary, Ministry of Finance, Department of Revenue, North Block New Delhi and The Approving Authority, Under Prohibition Of Benami Property Transaction Act, 1988, Room No. 239, New Central Revenue Building, Income Tax, Office, Statue Circle, Jaipur, Rajasthan and The Initiating Officer, Under Prohibition Of Benami Property Transaction Act, 1988, Room No.250, New Central Revenue Building, Income Tax Office, Statue Circle, Jaipur, Rajasthan and The Adjudicating Authority (Prohibition Of Benami Property Transaction Act 1988), Office Of Adjudicating Authority, Department Of Revenue, Ministry Of Finance Room No. 26, 4th Floor, Jeeven Deep Building, Parliament Street, New Delhi, 10001 and The Deputy Director Of Income Tax Department (Investigation-I), Room No. 240, Statue Circle, Jaipur

SAW/1315/2018

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The case involves Great Pacific General Trading Company (Limited Liability Partnership), represented by its designated partner Shri Aditya Lodha, appealing against the order of provisional attachment and subsequent proceedings under Section 26 of the Prohibition of Benami Property Transaction Act, 1988. The appeal was directed against the decision of the learned Single Judge who had dismissed the writ petition challenging the provisional attachment order dated 18.11.2017. The main contention in the appeal was the misapplication of the definition of 'benami' to the transactions involving the LLP and its partners. The court's decision focused on the procedural appropriateness of addressing these factual issues at the appellate stage, emphasizing the potential impact on the ongoing proceedings regarding the benami nature of the property.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 821507 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 22-10-2018
• Assessment Year: misc
• Laws Referred To: Prohibition of Benami Property Transaction Act, 1988
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: K K BISSA
• Assessee Lawyers: ANIL BHANSALI
• Keywords: Benami property; Provisional attachment; Special Appeal; Writ petition
• Section: 26

Judgement Text

"HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 1315/2018 Great Pacific General Trading Company (Limited Liability Partnership), Though its Designated Partner Shri Aditya Lodha S/o Kushal Chand Lodha R/o 947, PRM Plaza, 10 D Road, Sardarpura Jodhpur, having its registered office at Flat No.704, Senate Building No.12, Lokhandwala Township, Akurli Road, Kandi Vill. (E), Mumbai Maharashtra. ----Appellants Versus 1. Union of India, through the Secretary, Ministry of Finance, Department of Revenue, North Block New Delhi. 2. The Approving Authority, Under Prohibition Of Benami Property Transaction Act, 1988, Room No. 239, New Central Revenue Building, Income Tax, Office, Statue Circle, Jaipur, Rajasthan. 3. The Initiating Officer, Under Prohibition Of Benami Property Transaction Act, 1988, Room No.250, New Central Revenue Building, Income Tax Office, Statue Circle, Jaipur, Rajasthan. 4. 5. The Adjudicating Authority (Prohibition Of Benami Property Transaction Act 1988), Office Of Adjudicating Authority, Department Of Revenue, Ministry Of Finance Room No. 26, 4th Floor, Jeeven Deep Building, Parliament Street, New Delhi, 10001. The Deputy Director Of Income Tax Department (Investigation-I), Room No. 240, Statue Circle, Jaipur. ----Respondents For Appellant(s) : Mr.Anil Bhansali, Adv. For Respondents 2 & 3 : Mr.K.K.Bissa, Adv. HON'BLE MS. JUSTICE NIRMALJIT KAUR HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment (2 of 3) [SAW-1315/2018] 22/10/2018 The present special appeal is filed against the order and judgment dated 27.02.2018 passed by learned Single Judge, vide which, writ petition filed by the petitioner for setting aside the order of provisional attachment order of respondent no.3 dated 18.11.2017 as well as proceedings under Section 26 of the Prohibition of Benami Property Transaction Act, 1988 before the Adjudicating Authority was dismissed. It is contended that the learned Single Judge has dismissed the writ petition on the ground that any observation at this stage would record the finding to the effect that Shri Aditya Lodha cannot be termed as benamidar or the property in question is not a benami property, whereas, there is no such prayer by the petitioner. It is further argued that while dismissing the writ petition, it was not taken into consideration that under the definition of benami, the said transaction between the limited liability partner and the partner did not fall under the said definition. Reply has been filed. Learned counsel for the appellant also filed the rejoinder. We are constraint to note that the averments made in para 5 of the Special Appeal are factual. As per the said reply to para 5, Shri Aditya Lodha and his son Shri Manan Lodha retired on 01.06.2015 and only Shri Tarachand Parakh and his son Shri Aditya Parakh remained the partners in the LLP till 10.07.2017. During this period, the transactions were carried out by Shri Aditya Lodha alone and Shri Tara Chand Parakh and his son Shri Aditya Parakh were not even aware of the said transactions, which (3 of 3) [SAW-1315/2018] has given rise to bonafide suspicion that the property is benami property. Hence, we agree with the learned Single Judge that in case, we go into the same at this stage, it would effect the finding with respect to the property as to whether the same was benami or not. Accordingly, no ground is made out to interfere in the order impugned. Dismissed accordingly. (VINIT KUMAR MATHUR),J (NIRMALJIT KAUR),J NK/5 "