Smt. Sita Devi V. Deputy Commissioner, Income Tax (Benami Transaction) and Initiating Officer under the Prevention of Benami Transaction Act 2016 and Union of India, through its Secretary, Income Tax Department, Government of India and Adjudicating Authority, under the Prohibition of Benami Property Transaction Act-1988

CW/1842/2020

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Smt. Sita Devi filed a writ petition challenging an order passed by the Adjudicating Authority under the Prohibition of Benami Property Transaction Act, 1988, as amended by the Benami Transactions (Prohibition) Amendment Act, 2016. The petition was filed due to the non-functionality of the Appellate Tribunal, which was caused by the absence of a Chairman. During the COVID-19 pandemic, the jurisdiction of the High Court was extended to entertain such writ petitions. The petitioner also referenced a Supreme Court decision that declared certain provisions of the unamended Act of 1988 as unconstitutional. However, the High Court, noting the appointment of the Appellate Tribunal's Chairman and the availability of a statutory alternative remedy, dismissed the writ petition, allowing the petitioner to file an appeal with the Appellate Tribunal.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 805531 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 14-02-2023
• Assessment Year: misc
• Other Referred Cases: Union of India & Anr. Vs. M/s.Ganpati Dealcom Pvt. Ltd. [AIR 2022 SC 4558]
• Laws Referred To: Prohibition of Benami Property Transaction Act, 1988, Benami Transactions (Prohibition) Amendment Act, 2016
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: SIDDHARTH BAPNA; SARVESH JAIN
• Assessee Lawyers: ADITYA JAIN
• Keywords: Appellate Tribunal; Benami transaction; Condonation of delay; Unconstitutional provisions
• Section: 71; 46(2); 26(3)

Judgement Text

"[2023/RJJP/002653] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No.1842/2020 Smt. Sita Devi W/o Shri Dharmendra Harijan, Aged About 43 Years, R/o Village-Sanvarad, Tehsil-Ladnu, District-Nagaur, Rajasthan ----Petitioner Versus 1. Deputy Commissioner, Income Tax (Benami Transaction) and Initiating Officer under the Prevention of Benami Transaction Act 2016, Room No.2500, Statue Circle, NCRB, Income Tax Office, Jaipur. 2. Union of India, through its Secretary, Income Tax Department, Government of India, New Delhi. 3. Adjudicating Authority, under the Prohibition of Benami Property Transaction Act-1988, Room No.26, 4th Floor, Jeevan Deep Building, Parliament Street, New Delhi- 110001 ----Respondents 4. Smt. Raj Kanwar W/o Late Shri Anandpal Singh, R/o Dayanand Colony, Ladnu, District-Nagaur ----Proforma Respondent For Petitioner(s) : Mr.Aditya Jain, Adv. For Respondent(s) : Mr.Siddharth Bapna, Adv. with Mr.Sarvesh Jain, Adv. HON'BLE MR. JUSTICE ASHOK KUMAR GAUR HON'BLE MR. JUSTICE ASHUTOSH KUMAR Order 14/02/2023 The instant writ petition has been filed by the petitioner challenging the order dated 26.08.2019 passed by the Adjudicating Authority under Section 71 of the Prohibition of Benami Property Transaction Act, 1988 (hereafter ‘the Act of 1988’) while deciding the Reference No.R-1046/2018 passed [2023/RJJP/002653] (2 of 4) [CW-1842/2020] under Section 26(3) of the Benami Transactions (Prohibition) Amendment Act, 2016 (hereafter ‘the Act of 2016’). Learned counsel for the petitioner submitted that the present writ petition has been filed before this Court on 27.01.2020, as the Appellate Tribunal was not functional on account of non-appointment of the Chairman of the Appellate Tribunal, as provided under Section 46 of the Act of 2016. Learned counsel further submitted that during COVID- 19 pandemic, the jurisdiction of the High Court was extended to entertain such writ petition, challenging the order passed under Section 26(3) of the Act of 2016. Learned counsel further submitted that the Apex Court in the case of Union of India & Anr. Vs. M/s.Ganpati Dealcom Pvt. Ltd. reported in [AIR 2022 SC 4558], has also declared Section 3(2) of the unamended Act of 1988, as unconstitutional and as such, in the light of aforesaid judgment, the present writ petition may be entertained by this Court. This Court on 03.02.2023 had asked counsel appearing for the respondents to seek instructions in the matter, as whether, the writ petition can be disposed of with liberty to approach the Appellate Authority and the delay, if any caused in filing the appeal, can be condoned. Learned counsel appearing for the respondents submitted that under sub-Section (2) of Section 46 of the Act of 2016, the Appellate Tribunal has been given power to entertain any appeal after a period of 45 days provided the aggrieved persons satisfies that the appellant was prevented, by sufficient cause, from filing the appeal in time. [2023/RJJP/002653] (3 of 4) [CW-1842/2020] Learned counsel submitted that in view of statutory alternative remedy provided under the Act of 2016, the present writ petition may not be entertained by this Court. Learned counsel further submitted that the petitioner is always free to make appropriate application before the Appellate Forum by giving sufficient reasons for not preferring the appeal within stipulated time and as such, this Court may leave it to the discretion of the Appellate Authority to consider the facts of the case and then to entertain the application for condonation of delay. We have heard learned counsel for the parties and perused the material available on record. This Court finds that the petitioner though had filed the present writ petition, however, the Chairman of the Appellate Tribunal has been appointed in November, 2022 and now the Appellate Authority is functioning in a normal manner. This Court further finds that as far as the issue of limitation of filing an appeal within prescribed time is concerned, the aggrieved persons can always file an appeal along with the application for condoning the delay in filing appeal, after satisfying the Appellate Authority that persons aggrieved was prevented, by sufficient cause, from filing the appeal in time. This Court finds that the writ petition filed by the petitioner is not liable to be entertained, in view of appointment of the Appellate Authority and as such, the present writ petition is not entertained by this Court, however, the petitioner is granted liberty to file an appeal before the Appellate Forum and she is also [2023/RJJP/002653] (4 of 4) [CW-1842/2020] permitted to file appropriate application for seeking condonation of delay in filing the appeal. It goes without saying that the appellant would be at liberty to take all possible legal grounds for not preferring the appeal within the stipulated time. The Appellate Authority will consider the application of the appellant for condonation of delay on its own merit by considering the relevant facts and law. Accordingly, the present writ petition stands dismissed with liberty, as aforesaid. (ASHUTOSH KUMAR), J (ASHOK KUMAR GAUR), J Himanshu Soni/3 "