Umakanta Jena vs Union Of India And Others
2023 Latest Caselaw 8514 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                              W.P.(C) No. 15628 of 2022

            Umakanta Jena                            ....         Petitioner

                                               Mr. S.Ray, Senior Advocate
                                        -versus-
            Union of India and others                ....   Opposite Parties
                                 Mr. R.Chimanka, Senior Additional
                           Standing Counsel along with Mr.A.Kedia,
                             Junior Standing Counsel for Revenue
                     CORAM:
                            JUSTICE ARINDAM SINHA
                            JUSTICE G. SATAPATHY
                                         ORDER

03.08.2023 Order No.

08. 1. Petitioner has challenged annexures-1, 2 and 3 in the writ

petition. First is order dated 31st March, 2021 made by the Deputy

Commissioner of Income Tax (DCIT). Approval order dated 31 st

March, 2021 made by the Joint Commissioner of Income Tax

(annexure-2) is second and the reference to adjudicating authority

culminating in order dated 28th April, 2022 (annexure-3) is third

impugned order.

2. Mr. Ray, learned senior advocate appears on behalf of

petitioner and submits, Benami Transactions (Prohibition) Act, 1988

was subject to amendment by Benami Transactions (Prohibition)

Amendment Act, 2016. The amendments were notified on 11th August,

// 2 //

2016 in the Gazette of India Extra Ordinary. Sub-section (2) under

section 1 in the amending Act empowered the Central Government to

appoint different dates for different provisions of the Act as may by

notification in the official gazette be made. The Central Government,

by notification published in the Gazette of India Extra Ordinary on

25th October, 2016, appointed 1st November, 2016 as the date on

which provisions of the amending Act shall come into force.

3. He relies on judgment dated 23rd August, 2022 of the

Supreme Court in Civil Appeal No. 5783 of 2022 (Union of India

and another v. M/s. Ganapati Dealcom Private Limited),

paragraph 17 series and in particular paragraph 17.37. We reproduce

below first sentence in paragraph 17.37.

"In view of the fact that this Court has already held that the criminal provisions under the 1988 Act were arbitrary and incapable of application, the law through the 2016 amendment could not retroactively apply for confiscation of those transactions entered into between 05.09.1988 to 25.10.2016 as the same would tantamount to punitive punishment, in the absence of any other form of punishment. xx xx xx"

(emphasis supplied)

// 3 //

4. On query of application of the judgment to facts and

circumstances of this case, Mr. Ray draws attention to section 4 in the

amending Act, by which, inter alia, clause (C) under sub-section (9) in

substituted section 2 of the principal Act was introduced. We

reproduce the clause giving wider amplification to the meaning of

Benami property.

"(C) a transaction or an arrangement in respect of a property where the owner of the property is not aware of, or, denies knowledge of, such ownership."

(emphasis supplied)

On further query from Court, Mr. Ray submits, the shares were

purchased in year 2014 and discovered by the authorities on search

operation conducted under section 132 in Income Tax Act, 1961, on

29th February, 2020. His client had claimed ignorance. In the

circumstances, the property by the shares is property purchased prior

to 1st November, 2016 and thereby covered by M/s. Ganapati (supra).

5. Mr. Chimanka, learned advocate, learned Senior Standing

Counsel appears on behalf of revenue. On query put to him regarding

effect of the clause on and from 1st November, 2016 to be that it is

related to knowledge or ignorance of ownership of the retained

property after that date and not date of acquisition of the property, to

// 4 //

include it within the meaning of benami property he submits, review

has been filed in respect of M/s. Ganapati (supra). The petition is

pending in the Supreme Court.

6. We adjourn hearing of the writ petition awaiting decision on

the review. Mr. Ray prays for vacating the interim order. We are not

inclined to grant the prayer simply because petitioner cannot ask to

deal with property about which he is ignorant.

7. List on 15th September, 2023.

(Arindam Sinha) Judge

(G. Satapathy) Judge

Kishore

Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 03-Aug-2023 18:28:40