Of The Supreme Court In Union Of India & Anr v. M/S. Ganpati

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI WEDNESDAY, THE 8 DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 WP(C) NO. 4432 OF 2020 PETITIONER: P.M.SHARJITH, AGED 42 YEARSS/O.KUNHAMEED, POOVANITHERUVATH MALIYEKKAL HOUSE,12/510, THEKKUMTHALA, KUTTICHIERA, CALICUT - 673 001. BY ADVS.M.P.SHAMEEM AHAMEDSRI.HARISH R. MENONSRI.CYRIAC TOM RESPONDENTS: 1THE ASST COMMISSIONER OF INCOME TAX (BENAMI PROHIBITION UNIT),GROUND FLOOR, POORNIMA BUILDING, NEAR MANORAMA JUNCTION, PANAMPILLY NAGR, KOCHI - 682 036. 2THE ADJUDICATING AUTHORITY UNDER THE BENAMI PROPERTY TRANSACTIONS ACCT, 1988, ROOM NO.26, 4TH FLOOR, JEEVAN DEEP BUILDING, PARLIAMENT STREET, NEW DELHI - 110 001. 3UNION OF INDIA, (REPRESENTED BY FINANCE SECRETARY),MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, ROOM 46, NORTH BLOCK, NEW DELHI - 110 00. * ADDL.R4 FEROS V.P., SALEENA MANZIL, CALICUT UNIVERSITY P.O., MALAPPURAM DISTRICT, PIN-673 635. *ADDL.R4 IS IMPLEADED AS PER ORDER DT.8.2.2023 IN I.A.NO.1/2021.BY ADVS.DR.K.P.SATHEESAN (SR.)SRI.P.MOHANDAS (ERNAKULAM)SRI.S.K.ADHITHYANSRI.SABU PULLANSRI.GOKUL D. SUDHAKARANSRI. S. MANU, DSGI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON08.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 4432 OF 2020 T.R. RAVI, J. -------------------------------------------- W.P.(C) No.4432 of 2020 -------------------------------------------- Dated this the 08[th] day of February, 2023 JUDGMENT The issues raised in the writ petition are covered by a judgment of the Supreme Court in Union of India & Anr. v. M/s. Ganpati Dealcom Pvt.Ltd.; 2022 LiveLaw (SC) 700 (Civil AppealNo.5783 of 2022), where a three judge Bench of the Supreme Courthas concluded as follows: “18. Conclusion 18.1In view of the above discussion, we hold as under:a)Section 3(2) of the unamended 1988 Act is declaredas unconstitutional for being manifestly arbitrary.Accordingly, Section 3(2) of the 2016 Act is alsounconstitutional as it is violative of Article 20(1) of theConstitution b) In rem forfeiture provision under Section 5 of theunamended Act of 1988, prior to the 2016 Amendment Act,was unconstitutional for being manifestly arbitrary. c)The 2016 Amendment Act was not merely procedural,rather, prescribed substantive provisions. d)In rem forfeiture provision under Section 5 of the2016 Act, being punitive in nature, can only be appliedprospectively and not retroactively. e)Concerned authorities cannot initiate or continuecriminal prosecution or confiscation proceedings fortransactions entered into prior to the coming into force ofthe 2016 Act, viz., 25.10.2016. As a consequence of theabove declaration, all such prosecutions or confiscationproceedings shall stand quashed. f)As this Court is not concerned with theconstitutionality of such independent forfeitureproceedings contemplated under the 2016 Amendment Acton the other grounds, the aforesaid questions are left opento be adjudicated in appropriate proceedings”. In view of the aforesaid, it is declared that the amendedprovisions of the Prohibition of Benami Property Transactions Act,1988, shall be applied against the petitioner in the case only if thetransaction/transactions in question is/are entered into on or after25-10-2016. Sd/- mpm T.R.RAVIJUDGE APPENDIX OF WP(C) 4432/2020 PETITIONER’S EXHIBITS EXHIBIT P1COPY OF THE NOTICE DATED 2/09/2019 U/S 24(1) IN CONNECTION WITH SALE DEED 15/01/2015 DT.25/03/2015.24(1) IN CONNECTION WITH SALE DEED 15/01/2015 DT.25/03/2015. EXHIBIT P2COPY OF THE COMMON REPLY DATED 10/10/2019 BEFORE THE RESPONDENT.BEFORE THE RESPONDENT. EXHIBIT P3COPY OF THE ORDER DATED 26/11/2019 PASSED BY THE 1ST RESPONDENT UNDER SEC 24 (4) IN CONNECTION WITH SALE DEED 15/01/2015 DT.25/03/2015.BY THE 1ST RESPONDENT UNDER SEC 24 (4) IN CONNECTION WITH SALE DEED 15/01/2015 DT.25/03/2015. Sd/- mpm T.R.RAVIJUDGE APPENDIX OF WP(C) 4432/2020 PETITIONER’S EXHIBITS EXHIBIT P1COPY OF THE NOTICE DATED 2/09/2019 U/S 24(1) IN CONNECTION WITH SALE DEED 15/01/2015 DT.25/03/2015.24(1) IN CONNECTION WITH SALE DEED 15/01/2015 DT.25/03/2015. EXHIBIT P2COPY OF THE COMMON REPLY DATED 10/10/2019 BEFORE THE RESPONDENT.BEFORE THE RESPONDENT. EXHIBIT P3COPY OF THE ORDER DATED 26/11/2019 PASSED BY THE 1ST RESPONDENT UNDER SEC 24 (4) IN CONNECTION WITH SALE DEED 15/01/2015 DT.25/03/2015.BY THE 1ST RESPONDENT UNDER SEC 24 (4) IN CONNECTION WITH SALE DEED 15/01/2015 DT.25/03/2015. EXHIBIT P4COPY OF THE PROVISIONAL ATTACHMENT ORDER DATED 26/11/2019.DATED 26/11/2019. EXHIBIT P5COPY OF REFERENCE MADE BY THE 1ST RESPONDENT U/S 24 (5) OF THE BENAMI PROHIBITION ACT.RESPONDENT U/S 24 (5) OF THE BENAMI PROHIBITION ACT. EXHIBIT P6COPY OF THE SHOW CAUSE NOTICE DATED 23/12/2019 IN R-1869/2019.23/12/2019 IN R-1869/2019. EXHIBIT P7COPY OF THE NOTIFICATION SO 3289 (E) DT. 25/10/2016.25/10/2016. EXHIBIT P8COPY OF THE INTERIM ORDER DATED 4/04/2018 IN WP 10387/2018.IN WP 10387/2018. EXHIBIT P8 (A)COPY OF INTERIM ORDER DATED 4/04/2018 IN WP10441/2018.10441/2018. EXHIBIT P8 BCOPY OF COMMON INTERIM ORDER DATED 30/01/2020 PASSED IN WP 2577/2020, 2590/2020, 2595/2020,2596/2020, 2621/2020 AND 2627/2020.30/01/2020 PASSED IN WP 2577/2020, 2590/2020, 2595/2020,2596/2020, 2621/2020 AND 2627/2020. 2590/2020, 2595/2020,2596/2020, 2621/2020