{Arising Out Of Order Dated 12.12.2019 Passed By The Learned Single Judge In v. Assistant Commissioner Of Income Tax (Benami Prohibition) Room

HIGH COURT OF CHHATTISGARH, BILASPUR WA No. 65 of 2020 NAFR {Arising out of order dated 12.12.2019 passed by the learned Single Judge in Writ Petition (C) No. 4563 of 2019} Laxmi Narayan Agrawal S/o Late Shri Jagannath Agrawal Aged About 63Years Resident of Baya Road, Village- Lahrod, Police Station And Tehsil-Pithora, District- Mahasamund Chhattisgarh.Years Resident of Baya Road, Village- Lahrod, Police Station And Tehsil-Pithora, District- Mahasamund Chhattisgarh. ---- Appellant Versus 1. Assistant Commissioner of Income Tax (Benami Prohibition) Room No.201, First Floor, Central Revenue Building, Civil Lines, RaipurChhattisgarh.201, First Floor, Central Revenue Building, Civil Lines, RaipurChhattisgarh. 2. Initiating Officer PBPT Act, Assistant Commissioner of Income Tax(Benami Prohibition), Room No. 201, First Floor, Central RevenueBuilding, Civil Lines, Raipur Chhattisgarh.(Benami Prohibition), Room No. 201, First Floor, Central RevenueBuilding, Civil Lines, Raipur Chhattisgarh. 3. Union of India Through Its Secretary, Ministry of Finance (Department ofRevenue) Government of India, New Delhi, Delhi Revenue) Government of India, New Delhi, Delhi 4. Adjudicating Officer Under The Prohibition of Benami PropertyTransactions Act, 1988, Room No. 26, 4[th] Floor, Jeevan Deep Building,Parliament Street, New Delhi, Delhi Transactions Act, 1988, Room No. 26, 4[th] Floor, Jeevan Deep Building,Parliament Street, New Delhi, Delhi 5. Laxman Sarthi S/o Shri Itwaru, Indra Aawas, Village- Chicharpali, District-Baloda Bazar Chhattisgarh.Baloda Bazar Chhattisgarh. ---- Respondents For Appellant: Shri Sarfaraz Khan, Advocate. For Respondent/Department : Shri Amit Chaudhari and Ms. Naushina Afrin Ali, Advocates. For Respondent/UOI : Shri Vaibhav P. Shukla, Advocate on behalf of Shri B.Gopa Kumar, Assistant Solicitor General. Shri B.Gopa Kumar, Assistant Solicitor General. Hon'ble Shri P. R. Ramachandra Menon, Chief JusticeHon'ble Shri Justice Parth Prateem Sahu, Judge Judgment on Board Per P. R. Ramachandra Menon, Chief Justice 02.03.2020 1.Challenge is against the correctness of the verdict passed by the learned Single Judge, whereby interference was declined and the writ petitionwas dismissed.was dismissed. 2.As a matter of fact, the writ petition was filed challenging the order dated04.12.2019, causing provisional attachment of the immovable property interms of the provisions of the Prohibition of Benami Property TransactionAct, 1988 (for 'the Act'). Various averments have been raised, bothfactual and legal, which have been sought to be rebutted by theRespondents by filing return. 04.12.2019, causing provisional attachment of the immovable property interms of the provisions of the Prohibition of Benami Property TransactionAct, 1988 (for 'the Act'). Various averments have been raised, bothfactual and legal, which have been sought to be rebutted by theRespondents by filing return. 3.After hearing both the sides, the learned Single judge observed that it isnot a fit case to call for interference as the provisional attachment is onlyan arrangement to preserve the property until the authority completes theproceedings under the Act. Both the writ Petitioner as well as the 5[th]Respondent could appear before the authorities and can put forward theirdefence and establish that the property cannot be termed as a Benamiproperty.not a fit case to call for interference as the provisional attachment is onlyan arrangement to preserve the property until the authority completes theproceedings under the Act. Both the writ Petitioner as well as the 5[th]Respondent could appear before the authorities and can put forward theirdefence and establish that the property cannot be termed as a Benamiproperty. 4.When the matter came up for consideration before this Court on05.02.2020, Shri Sarfaraz Khan, the learned counsel appearing for theAppellant pointed out that, there is a legal infirmity insofar as no properapproval in terms of sub-section (3) of Section 24 of the Act wasobtained. It was accordingly, that we passed an order on that day, in thefollowing terms: “The learned counsel for the Appellant submits thatthe challenge against Annexure-P/1 order dated04.12.2019 passed under Section 24(3) of theProhibition of Benami Property Transactions Act, 1988(for short, 'the Act, 1988') is mainly on two grounds.Firstly that, no proper notice in terms of sub- section(1) of Section 24 of the Act, 1988 was issued andfurther that no prior approval in writing was obtainedfrom the Approving Authority in terms of sub- section(3) of Section 24 of the Act, 1988. With regard to thefirst ground, a reply has been filed from the part of theDepartment also producing a copy of the notice, whichis stated as served on 06.12.2019; correctness ofwhich is disputed, however stating that it will be taken up by a separate proceeding. With regard to thesecond ground, it is stated that no prior approval of theApproving Authority was obtained in writing asenvisaged under Section 24(3) of the Act, 1988. The learned standing counsel for the Departmentsays that in paragraph 14 of Annexure-P/1 order,which is the same as Annexure-R/3 produced alongwith reply, it is stated that, the said order has beenpassed with the prior approval of the JointCommissioner, Income Tax (DPO) Raipur, who is theApproving Authority under the Act, 1988. It is pointedout that factual aspect has been asserted in the replysupported by an affidavit. This however shows that theapproval taken from the Approving Authority on10.10.2019 is only an approval in terms of proceedingsunder Section 23 of the Act, 1988, which is differentfrom the approval as contemplated under sub-section(3) of Section 24 of the Act, 1988. The learned counselfor the Department seeks for time to get instructionsand to produce copy of the approval in terms of sub-section (3) of Section 24 of the Act, 1988 or to producethe file to substantiate the facts and figures. Post on 10.02.2020.” 5.When the matter was taken up for consideration on 05.02.2020, thelearned counsel appearing for the Respondent submitted that, theapproval was obtained as discernible from the materials already broughton record. But on pointing out that, the approval mentioned in theproceedings already brought on record, referred only to the provisions ofSection 23 and that, that approval envisaged under Section 24(3) wassomething else, time was sought for to get instructions and to place theentire materials on record. It was accordingly that, the position wasclarified on 10.02.2020 as to the obtaining of approval under Section24(3) of the Act as well. I. A. No. 03 of 2020 producing additionaldocuments and it was brought to the notice of this Court on 24.02.2020that as per the additional documents produced, proper sanction wasobtained before ordering the provisional attachment; which hence waswithin the four walls of law. The matter was adjourned on the request oflearned counsel for the Appellant for getting further clarifications/instructions. 6.Today, when the matter is taken up for consideration, it is noted that nofurther proceedings have been filed from the part of the Appellantdisputing the correctness or otherwise of Annexures R/4 and R/5. Ongoing through the above documents, it is seen that the version of theRespondents that, the proceedings were pursued after getting approval interms of sub-Section 3 of Section 24 is established by the Respondentsand as such, this Court does not find any merit in the appeal. It standsdismissed. clarifications/instructions. 6.Today, when the matter is taken up for consideration, it is noted that nofurther proceedings have been filed from the part of the Appellantdisputing the correctness or otherwise of Annexures R/4 and R/5. Ongoing through the above documents, it is seen that the version of theRespondents that, the proceedings were pursued after getting approval interms of sub-Section 3 of Section 24 is established by the Respondentsand as such, this Court does not find any merit in the appeal. It standsdismissed. 7.Before parting with the case, Mr. Amit Choudhari, the learned Standingcounsel for the Respondents referred to the wild allegations levelledagainst the authorities/department, particularly, under paragraph 9.6 ofthe writ petition alleging 'corruption', without producing any material tosubstantiate it. It remains a fact that no materials have been producedfrom the part of the Appellant in support of the allegations levelled againstthe Respondents therein. Reckless allegations, when raised withouttesting the correctness, are liable to be acted upon seriously. However,because of the magnanimity expressed on the part of the learnedStanding counsel, alerting the writ Petitioner/Appellant of theconsequences and to be careful in future. We leave it there and nofurther order is being passed in this regard. Sd/- Sd/- (P. R. Ramachandra Menon) (Parth Prateem Sahu) Chief Justice Judge