APPELLATE TRIBUNAL UNDER SAFEMA AT NEW DELHI MP-PBPT-1407/MUM/2024 Exemp.

MP-PBPT-1408/MUM/2024 Stay FPA-PBPT-375/MUM/2024 Jagdish Kumar M. Gupta … Appellant Versus The Initiating Officer, BPU-1 Mumbai … Respondent Advocates / Authorized Representatives who appeared:

For the Appellant(s) : Counsel appeared For the Respondent(s) : Mr. Manmeet S. Arora, S.P.P.

CORAM JUSTICE MUNISHWAR NATH BHANDARI : CHAIRMAN MR. V. ANANDARAJAN : MEMBER

ORDER

08.04.2026 This appeal has been filed to challenge the order dated

11.09.2024 passed by the Adjudicating Authority confirming the Provisional Attachment Order (“PAO”) while answering the reference.

Arguments of the Ld. Counsel for the appellant:

2. Ld. Counsel for the appellant made a reference of the facts to the case for challenge to the order alleging it to be not involving benami transaction. It was submitted that the appellant proposed to purchase flats in a building to be constructed in the name of ‘Prathamesh Galaxy’. The developer, namely, M/s Sailee Developers issued allotment letters on 24.07.2002 and 26.01.2003 in the name of the appellant confirming and reserving four flats on different floors. The amount of consideration was paid and mentioned in the allotment letters. The Agreement to Sell was entered with the developer and was registered in the name of third-parties. The appellant duly disclosed it in the survey carried out under Section 133A of the Income-tax Act. In fact, the appellant disclosed total additional income of Rs.1.71 Crore bifurcated in four different financial years when survey was conducted. This was with inclusion of the cost of the four flats including stamp duty. A sum of Rs.49.51 lakhs was disclosed towards the payment for four flats + stamp duty aggregating to Rs.5.71 lakhs.

3. The transaction of flats booked and registered in the name of third-parties was also disclosed to the Income Tax Department. However, since the appellant accepted the transaction and paid taxes, no further action was to be taken which includes under the Prohibition of Benami Property Transactions Act, 1988 (in short “the Act of 1988”). A reference of one flat alleged to have been sold in the year 2005-

2006 was given, however, with the admission that during the search and seizure under Section 132 of the Income-tax Act on 11.10.2022, Gift Deeds were found in respect of four flats for gifting it to the appellant by the parties in whose names registered Agreements existed. It was to revert back the property to the appellant. The Gift Deed was, however, taken to be basis for alleging a case of benami transaction without any reason. In fact, the flats were booked in the name of the appellant but were registered in the name of third-parties for the reason that construction of the building was yet to be completed, rather, it did not start due to dispute. Thus, even the property does not exist in absence of construction so as its transfer to make a case of benami transaction. The Gift Deed was taken by the appellant in his favour due to his age and ill- health, though, with the admission that agreement was registered in the name of third-party for which consideration was paid by the appellant.

4. Ld. Counsel for the appellant, however, submitted that the transaction being the year of 2002-2003 onwards and much before the amendment in the Act of 1988 by the Amending Act of 2016 defining “benami transaction” under Section 2(9) of the Act of 1988 could not have been applied retrospectively. A reference of the judgment of the Apex Court in the case of Union of India and Another versus Ganpati Dealcom Pvt. Ltd. was given. It is with the further submission that when the property is not even existing, an action for its provisional attachment should be rendered illegal and accordingly prayer was made to set-aside the impugned order.

5. Ld. Counsel for the appellant also made a reference of the order of this Tribunal in the case of M/s Prism Scan Express Pvt. Ltd. in Appeal No. FPA-PBPT-1079/MUM/2020 deci