ORDER

1. Regard being had to be similitude of the question involved, on the joint request, matters were heard analogously on admission and decided by this common order.

2. The facts are taken from W.P.No.5861 of 2024.

3. In this petition filed under Article 226 of the Constitution, the petitioner has called in question (i) show cause notice dated 5.1.2024 (Annexure P/1) issued under section 24(1) of the Prohibition of Benami Property Transactions Act, 1988 (hereinafter referred as ‘Act of 1988’) and (ii) Provisional Attachment Order (P.A.O.) dated 5.1.2024 (Annexure P/2) issued under section 24(3) of Act of 1988.

4. Shri Sumit Nema, learned Senior Advocate for the petitioners submits that the show cause notice (Annexure P/1) and provisional attachment order (Annexure P/2) are called in question mainly on the ground that the alleged benami transaction has taken place prior to 1.11.2016, the date when Act of 1988 stood amended. In view of recent judgment of Supreme Court in Union of India & another v. M/s Ganpati Dealcom Private Limited (2023) 3 SCC 315, show cause notice and provisional attachment order is bad in law. Section 5 of Act of 1988 is declared as unconstitutional by the Supreme Court in Ganpati Dealcom Private Limited (supra), and therefore, petitioners may not be relegated to avail the in house remedy under the Act of 1988. Heavy reliance is placed on para 127.2 and 127.4 of the judgment of Supreme Court in Ganpati Dealcom Private Limited (supra).

5. The next submission of learned Senior Counsel for the petitioners is that after delivery of the judgment of Supreme Court in Ganpati Dealcom Private Limited (supra), the Appellate Tribunal for the SAFEMA at New Delhi in M.P.-PBPT- 2092/MUM/2022 (Mis.) M/s. Prism Scan Express Pvt. Ltd. v. Initiating Officer and other connected matters decided on 15.12.2023 opined that the word ‘held’ used in section 2(9)(A) of Amending Act 2016 has a definite meaning and purpose. The first part of section 2(9)(A) deals with transfer of the property to a person of which consideration was paid or provided by another person. The Second part has been separated from the first part by putting the word ‘or’ in between. Under this second part of definition, if the property is held by a person whose consideration has been provided or paid by another person, then also it would be a benami transaction. It is strenuously contended that the Appellate Tribunal came to hold that despite the judgment of Supreme Court in Ganpati Dealcom Private Limited (supra), the action is permissible if property is held after Amending Act came into being. In this view of the matter, if the petitioners are relegated to avail the in house remedy under the Act of 1988, it will be a futile exercise taking into account the view already taken by the Appellate Tribunal in M/s. Prism Scan Express Pvt. Ltd. (supra).

6. Furthermore, it is argued that High Court of Madras in (2023) 157 Taxmann. Com 307 (Deputy Commissioner of Income-tax (Benami Prohibition) v. Advance Infra Developers (P.) Ltd. already held that in the light of judgment of Supreme Court in Ganpati Dealcom Private Limited (supra), there exists no reason for interference with the order of appellate Tribunal, which held that proceeding initiated before amendment were not legally sustainable.

7. Lastly, it was pointed out that High Court for the State of Telangana, Hyderabad has taken similar view in W.P. No.14695 of 2021 and connected matters (Nexus Feeds Ltd. and others v. Assistant Commissioner of Income Tax). The Revenue filed SLP, which was not entertained by the apex Court by holding that review of judgment of Ganpati Dealcom Private Limited (supra), is pending. Liberty was reserved to approach the Apex Court again by filing a fresh petition in case review petition (s) is allowed. On the strength of aforesaid, Shri Nema, learned Senior Counsel submits that as on date the binding judgment of Ganpati Dealcom Private Limited (supra), covers the field and it was n