APPELLATE TRIBUNAL UNDER SAFEMA AT NEW DELHI MP-PBPT-4826/SRT/2023 Stay FPA-PBPT-3242/SRT/2023 Rajesh Kumar Nagindas Patel … Appellants Versus The Initiating Officer, Surat … Respondent Advocates/Authorized Representatives who appeared For the Appellants : Mr. Ashwani Taneja, Adv.

Mr. Divyansh Dubey, Adv.

Ms. Gunjan Chauhan, Adv.

Mr. Harsh B., Adv.

For the Respondent : Mr. Anish Dhingra, Adv.

CORAM JUSTICE MUNISHWAR NATH BHANDARI : CHAIRMAN SHRI G.C. MISHRA : MEMBER

FINAL ORDER

02.12.2025 By this appeal, a challenge has been made to the order dated

13.09.2023 passed by the Adjudicating Authority, confirming the Provisional Attachment Order while answering the reference sent by the Initiating Officer.

The Ld. Counsel for the Appellant prayed for consideration of two legal issues at the first instance and if they are not accepted, to switch on to the factual grounds. The Ld. Counsel for the Respondent had no objection to take up the legal issues at the first instance and accordingly, the Counsel for the Appellant raised the legal issues for challenge to the impugned order.

It was submitted that the officer caused the notice under Section

24(1) followed by Provisional Attachment Order under Section 24(3) of Prohibition of Benami Property Transactions Act, 1988 (in short “the Act of 1988”) was not competitive to pass the order. The officer was transferred to other place vide the order dated 13.05.2022 and specific order was thereupon passed on 23.05.2022 to give effect to the transfer order with immediate effect. The officer was not authorized to cause Provisional Attachment Order and the notice under Section 24(1) of the Act of 1988 after his transfer to other place.

The futher submission was in reference to the order recording reasons to believe for causing Provisional Attachment Order. The said order was issued by the officer who came in place of the officer transferred vide the order dated 13.05.2022 and 23.05.2022. It could not have been that two officers could hold the post simultaneously and accordingly take overlapping actions. The impugned order deserves to be set aside on the ground of the competence of the officer caused the Provisional Attachment Order under Section 24(3) of the Act of 1988.

The Ld. Counsel further submitted that the currency of Rs.3.25 Cr/-

recovered from the Appellant was considered to be out of benami transaction was in the custody of the Income Tax Department on the date of passing of the attachment order. Thus, a case was not made out to invoke Section 24(3) of the Act of 1988. There could not have been apprehension of alienation of the property so as to warrant its provisional attachment. The aforesaid aspect was also ignored rather Provisional Attachment Order was caused in ignorance of the mandate of Section 24(3) of the Act of 1988 to provisionally attach the property when there remains apprehension of its alienation. Thus, on the aforesaid ground also, the impugned order deserves to be set aside.

Ld. Counsel for the Respondent contested both the issues. He made elaborate arguments which would be referred while recording/finding of the Tribunal to the issues raised by the Appellant.

We have considered the rival submissions of the parties. The Counsel for the Appellant has raised two legal issues for challenge to the impugned order passed by the Adjudicating Authority. First issue is about the competence of the officer caused the Provisional Attachment Order under Section 24(3) of the Act of 1988 and prior to that the notice under Section 24(1) of the Act of 1988. The Counsel for the Appellant was asked to refer to the finding of the Adjudicating Authority to find out whether the factual issue to make out a legal ground was raised before the Adjudicating Authority or not. The Counsel for the Appellant fairly admitted that the issue aforesaid was not raised before the Adjudicating Authority but has been raised in the appeal. It is with further submission that it being legal issue can be raised even at the ap