FPA-PBPT-2243 & 2244/BBS/2022

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APPELLATE TRIBUNAL UNDER SAFEMA AT NEW DELHI

FPA-PBPT-2243/BBS/2022

M/s Odisha Infra tech Pvt. Ltd.

…

Appellant

FPA-PBPT-2244/BBS/2022

M/s Odisha Television Ltd.

…

Appellant

Vs.

The Initiating Officer,

(BPU), Bhubaneswar

…

Respondent

Advocates/Authorized Representatives who appeared

For the Appellant

:

Mr. Sachit Jolly, Mr. Rohit

Garg and Ms. Soumya Singh,

Advocates

For the Respondent

:

Mr. Anish Dhingra, SPP

Mr. Nakul Ahuja, Advocate

CORAM

JUSTICE MUNISHWAR NATH BHANDARI

:

CHAIRMAN

SHRI BALESH KUMAR

:

MEMBER

SHRI RAJESH MALHOTRA

:

MEMBER

ORDER

15.12.2022

This appeal has been preferred to challenge the order passed by the

Adjudicating Authority under section 26(3) and 24(6 ) of the Prohibition of

Benami Properties Transactions Act, 1988 (‘PBPT Act’) as amended by the Act

of 2016.

The learned counsel for the appellant submits that the Initiating Officer

of the Benami Prohibition Unit (BPU) had initiated the proceedings after

applying the Benami Tansactions (Prohibition) Amendment Act, 2016 (in

short ‘Amendment Act 2016’). The alleged benami transaction involved in this

case is of the period prior to amendment.

FPA-PBPT-2243 & 2244/BBS/2022

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The issue of the application of the Amendment Act of 2016 in regard to

the Benami Transaction prior to the amendment was an issue before the Apex

Court and has been decided in the case of Union of India & Anr. v/s M/s

Ganpati Dealcom Pvt. Ltd. reported in SCC Online SC 1064. It was also the

constitutional validities of certain provisions.

The section 3(2) of unamended Act, 1988 so as the amended provision

were declared to be unconstitutional. The forfeiture provision u/s 5

(unamended Act) of Benami Transactions prior to the Amendment was also

declared unconstitutional being manifestly arbitrary. It is further held that any

action of forfeiture under section 5 of the Amendment Act of 2016 can be

applied prospectively and not retroactively. All the proceeding for prosecution

and confiscation were accordingly quashed finding it to be of the period prior

to Amendment by the Act of 2016. The alleged benami transaction in this case

is also of a period prior to the Amendment Act, 2016, thus covered by the

judgment of the Apex Court in the case supra.

The prayer is to set aside the order of the Adjudicating Authority and

also the proceedings in view of the judgment of the Apex Court (Supra).

The learned counsel for the respondents has opposed the appeal,however

he could not contest that the benami transaction referred by the Benami

Prohibition Officer is of a period prior to the Amendment Act, 2016.

It is however submitted that the Department has filed a review petition,

for review of the judgement in the case of Union of India Vs. M/s Ganpati

Dealcom Pvt. Ltd. reported in 2022 SCC online SC 1064. Thus, if the appeal

is allowed after governing it by the judgement of the Apex Court in the case

supra, liberty be given to the Department to take the appropriate remedies in

FPA-PBPT-2243 & 2244/BBS/2022

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case of review of the judgement by the Apex Court. It may include a review

petition before this Tribunal.

It is further submitted that independent to the action involved in this

case, if the Department has a right to initiate proceedings after taking

Amendment Act of 2016 to be prospective, liberty for it be given.

We have considered the rival submissions of the parties and perused

the records. A challenge to the order of the Adjudicating Authority has been

made by way of this appeal mainly with reference to the judgement of the

Apex Court in the case of Union of India & Anr. v/s M/s Ganpati Dealcom

Pvt. Ltd. (supra).

On perusal of the order of the Adjudicating Authority and the notice of

the Initiating Officer, it is case of alleged benami transaction prior