Blog # 11. Attachments under Prohibition of Benami Propert Tranactions Act, 1988 and Initial Response
Under the provisions of Prohibition of Benami Property Transactions Act, 1988, the attachments are made as per the provisions of Section 24 by an Initiating Officer.
Who are Initiating Officers ?
As per Section 2(19) of Prohibition of Benami Property Transactions Act, 1988, initiating officer means an Assistant Commissioner or Deputy Commissioner as defined in clause (9A) and (19A) respectively of section 2 of the Income Tax Act, 1961.
As per Section 2(9A) of the Income Tax Act, 1961 , "Assistant Commissioner" means a person appointed to be an Assistant Commissioner of Income-tax [or a Deputy Commissioner of Income-tax] under sub-section (1) of section 117;] And As per Section 2(19A) of The Income Tax Act, 1961, "Deputy Commissioner" means a person appointed to be a Deputy Commissioner of Income-tax under sub-section (1) of section 117;
Accordingly, proceedings under The Prohibition of Benami Property Act, 1988 as amended by the present Modi Government can be initiated by an Assistant Commissioner or Deputy Commissioners of Income Tax. After receiving evidences/material against the benamidar or beneficial owner, if the initiating officer has reasons to believe that the case falls within the purview of Prohibition of Benami Property Transactions Act, 1988 then :-
( 1 ) Record reasons in writing that any person is a benamidar.
( 2 ) Issue notice u/s 24(1) of the Act to the Benamidar asking as to why the property should not treated as benami property.
( 3 ) Notice to Beneficial Owner as well if his identity is known.
( 4 ) If Initiating officer feels that the person who is in possession of Benami Property may alienate such property, then he may attach such property. Procedure of Attaching such property:-
Step No.1 à Previous Approval from Approving Authority.
Step No. II. à Pass Provisional Attachment Order attaching such Benami property for a period of maximum of 90 days from the date of issuing notice to benamidar.
( 5 ) Thereafter he makes such inquiries, calls for reports or evidences as he deems fit and taking in to account all the materials, if he opines that the property is benami then he may continue such provisional Attachment beyond a period of 90 days or attaches the property if the same has not been attached before 90 days of issuing notice u/s 24(1) of the Act, after :-
Ø Taking prior approval of Approving Authority.
Ø Has to again pass an order continuing the provisional attachment. The same shall continue till the time specified in such order or till the order is passed by the Adjudicating Authority.
Ø Draw up statement of the case and refers it to the Adjudicating Authority.
Revokes provisional attachment after passing an order in writing after taking approval from Approving Authority if he is satisfied that the transaction
Initial Response to be taken if you receive notice u/s 24(1) of the Act :-
( 1 ) Request Initiating Officer to provide materials against you.
( 2 ) Request for the reasons recorded for initiating the proceedings.
Initial Response to be taken in case of proceedings before the Adjudication Authority :
Request for the Case Statement submitted by Initiating Officer.