Section 46(1) of the Prohibition
of Benami Property Transactions Act, 1988 provides that any person aggrieved by the order of the
Adjudicating Authority of holding the property as benami or not, can file an
appeal to the Appellate Tribunal within 45 days from the date of the order passed
by Adjudicating Authority. An appeal against the order of the Appellate
Tribunal may be preferred in the High Court within 60 days.
Text of Section 46
APPEALS TO
APPELLATE TRIBUNAL
46. (1) Any person,
including the Initiating Officer, aggrieved by an order of the Adjudicating
Authority may prefer an appeal in such form and along with such fees, as may be
prescribed, to the Appellate Tribunal against the order passed by the
Adjudicating Authority under sub-section (3) of section 26, within a period of
forty-five days from the date of the order.
[1][(1A)
Any person aggrieved by an order passed by the authority under section 54A may
prefer an appeal in such form along with such fees, as may be prescribed, to
the Appellate Tribunal against the said order within a period of forty-five
days from the date of that order.]
(2)
The Appellate Tribunal may entertain any appeal after the said period of
forty-five days, if it is satisfied that the appellant was prevented, by
sufficient cause, from filing the appeal in time.
(3)
On receipt of an appeal under sub-section (1), [1][or
sub-section (1A)] the Appellate Tribunal may, after giving the
parties to the appeal an opportunity of being heard, pass such orders thereon
as it thinks fit.
(4)
An Appellate Tribunal while deciding the appeal shall have the power—
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(a)
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to determine a case finally, where
the evidence on record is sufficient;
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(b)
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to take additional evidence or to
require any evidence to be taken by the Adjudicating Authority, where the
Adjudicating Authority has refused to admit evidence, which ought to have
been admitted;
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(c)
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to require any document to be
produced or any witness to be examined for the purposes of proceeding before
it;
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(d)
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to frame issues which appear to the
Appellate Tribunal essential for adjudication of the case and refer them to
the Adjudicating Authority for determination;
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(e)
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to pass final order and affirm, vary
or reverse an order of adjudication passed by the Adjudicating Authority and
pass such other order or orders as may be necessary to meet the ends of
justice.
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(5)
The Appellate Tribunal, as far as possible, may hear and finally decide the
appeal within a period of one year from the last date of the month in which the
appeal is filed.
KEY NOTE
1.
Inserted by the Finance (No. 2) Act, 2019, with effect from 01.09.2019
Appeals to the Appellate Tribunal [Rule 10]
Text of Rule 10 of
Prohibition of Benami Property Transactions Rules, 2016
10. (1) An appeal to the
Appellate Tribunal under sub-section (1) of section 46 of the Act shall be
filed in Form No. 3 annexed to these rules.
(2) At the time of
filing, every appeal shall be accompanied by a fee of ten thousand rupees.
(3) The appeal shall set
forth concisely and under distinct head the grounds of objection to the order
appealed against and such grounds shall be numbered consecutively; and shall
specify the address of service at which notice or other processes of the
Appellate Tribunal may be served on the appellant and the date on which the
order appealed against was served on the appellant.
(4) Where the appeal is
preferred after the expiry of the period of forty-five days referred to in
sub-section (1) of section 46, it shall be accompanied by a petition, in
quadruplicate, duly verified and supported by the documents, if any, relied
upon by the appellant, showing cause as to how the appellant had been prevented
from preferring the appeal within the period of forty-five days.
Appeal before Appellate Tribunal - Jurisdiction
At
present jurisdiction is with the Appellate Tribunal established under section
25 of Prevention of Money Laundering Act, 2002 (PMLA) located at New Delhi.
Fee of filing of Appeal
At the time of filing, every
appeal shall be accompanied by a fee of Rs. 10,000/-.
Hearing before Appellate Tribunal
v Appeal
to be filed within 45 days from date of order passed by Adjudicating Authority.
v Appeal
to be heard by division bench.
v No
time limit to pass order by the Tribunal.
v
CAs are authorized to appear before
Appellate Tribunal under section 48.
An
appeal to the Appellate Tribunal under section 46(1) of the Act shall be filed
in Form No. 3
(a)
At the time
of filing, every appeal shall be accompanied by a fee of Rs.10,000.
(b)
The appeal
shall set forth concisely and under distinct head the grounds of objection to
the order appealed against and such grounds shall be numbered consecutively;
and shall specify the address of service at which notice or other processes of
the Appellate Tribunal may be served on the appellant and the date on which the
order appealed against was served on the appellant.
(c)
Where the
appeal is preferred after the expiry of the period of 45 days referred to in under
section 46(1), it shall be accompanied
by a petition, in quadruplicate, duly verified and supported by the documents,
if any, relied upon by the appellant, showing cause as to how the appellant had
been prevented from preferring the appeal within the period of 45 days.
Filing
of belated appeals [Section 46(2)]
Section 46(2) provides that the Appellate Tribunal
may entertain any appeal after the said period of 45 days, if it is satisfied
that the appellant was prevented, by sufficient cause from filing the appeal in
time.
Where appeal is preferred after the expiry of the
period of 45 days refered to in section 46(1), it shall be accompanied by a
petition, in quadruplicate, duly verified and supported by the documents, if
any, relied upon by the appellant, showing cause as to how the appellant had
been prevented from preferring the appeal within the period of 45 days.
Decision
on appeal by Appellant Tribunal [Section 46(3)]
Section 46(3) provides that on receipt of an appeal,
the Appellate Tribunal may, after giving the parties to the appeal an
opportunity of being heard, pass such orders thereon as it thinks fit.
An
Appellate Tribunal while deciding the appeal shall have the power [Section -
46(4)]
(a)
to determine
a case finally, where the evidence on record is sufficient;
(b)
to take
additional evidence or to require any evidence to be taken by the Adjudicating
Authority, where the Adjudicating Authority has refused to admit evidence,
which ought to have been admitted;
(c)
to require
any document to be produced or any witness to be examined for the purposes of
proceeding before it;
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(d)
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to frame
issues which appear to the Appellate Tribunal essential for adjudication of
the case and refer them to the Adjudicating Authority for determination;
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(e)
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to pass
final order and affirm, vary or reverse an order of adjudication passed by
the Adjudicating Authority and pass such other order or orders as may be
necessary to meet the ends of justice.
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Appellate Tribunal has the power to pass
final order [Section 46(4)(e)]
Appellate
Tribunal has the power to pass final order and affirm, vary or reverse an order
of adjudication passed by the Adjudicating Authority and pass such other order
or orders as may be necessary to meet the ends of justice
As
per Section 46(5)
(a)
to frame
issues which appear to the Appellate Tribunal essential for adjudication of the
case and refer them to the Adjudicating Authority for determination;
(b)
oto pass
final order and affirm, vary or reverse an order of adjudication passed by the
Adjudicating Authority and pass such other order or orders as may be necessary
to meet the ends of justice.
(c)
The Appellate
Tribunal as far as possible, may hear and finally decide the appeal within a
period of one year from the last date of the month in which the appeal is
filed.
Orders
which are appealable before Appellate
Tribunal
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S. No.
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Section of PBPT Act
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Order
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Authority passing the order
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(i)
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Section 26(3)
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Order of adjudication (holding the property in question to be benami
property or holding it not to be benami property) and confirming order of attachment
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Adjudicating Authority
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(ii)
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Section 54A
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Order imposing penalty
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By authority who issued summons under section 19 or authority who
called for information under section 21
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Orders
which are not appealable before Appellate
Tribunal
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S. No.
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Section of PBPT Act
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Order
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Authority passing the order
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(i)
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Section 24(3)
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Provisional attachment of property
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Initiating Officer (IO)
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(ii)
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Section 24(4)
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Order continuing provisional attachment of property
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Initiating Officer (IO)
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(iii)
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Section 24(4)
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Provisional attachment of property if not done so earlier
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Initiating Officer (IO)
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(iv)
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Section 26(5)
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Order provisionally attaching a property other than that referred by
IO
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Adjudicating Officer
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(v)
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Section 27(1)
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Order confiscating a property adjudged to benami property under
section 26(3)
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Adjudicating Officer
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(vi)
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Section 29(2)
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Order to person in possession of confiscated benami property to
surrender deliver possession to administrator or his authorised person.
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Administrator
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(vii)
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Section 47
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Order amending order passed to rectify mistake apparent from record
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Any authority
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Adjudicating Authority appointed under sub-section
(1) of section 6 of the Prevention of Money laundering Act, 2002 (15 of 2003)
shall discharge the functions of the Adjudicating Authority under the
Prohibition of Benami Property Transactions Act, 1988.
MINISTRY OF FINANCE
(Department of Revenue)
NOTIFICATION
New Delhi, the 1st November, 2018
(i) the Adjudicating Authority appointed under
sub-section (1) of section 6 of the Prevention of Money laundering Act, 2002
(15 of 2003) shall discharge the functions of the Adjudicating Authority under
the said Act, for the period beginning on 1st day of November, 2016 and ending
on the date preceding the date on which the Adjudicating Authority appointed
under the said Act commences discharging the functions of the Adjudicating
Authority under the said Act, in respect of cases in which references have been
received by it;
(ii) notwithstanding anything to the contrary
contained in clause (i), the Adjudicating Authority appointed under sub-section
(1) of section 6 of the Prevention of Money-laundering
Act, 2002 (15 of 2003) shall pass order under
subsection (3) of section 26 of the said Act in respect of case in which the
said order is required to be passed before the expiry of two months from the
end of the month in which the Adjudicating Authority appointed under the said
Act commences discharging the functions of the Adjudicating Authority under the
said Act;
(iii) the Appellate Tribunal referred to in section
25 of the Prevention of Money-laundering Act, 2002 (15 of 2003) shall discharge
the functions of the Appellate Tribunal under the said Act, for the period
beginning on 1st day of November, 2016 and ending on the date preceding the
date on which the Appellate Tribunal established under the said Act commences
discharging the functions of the Appellate Tribunal under the said Act, in
respect of cases in which appeals have been filed before it.
This Notification shall come into effect from the
date of its publication.
[Notification No.77/2018/F.No.370149/194/2017-TPL]
PRAVIN RAWAL, Director (Tax Policy & Legislation)
MINISTRY OF FINANCE
(Department of Revenue)
ORDER
New Delhi, the 31st October, 2018
S.O. 5602(E).—WHEREAS, section 71
of the Prohibition of Benami Property
Transactions Act, 1988 (45 of 1988) (hereinafter referred
to as the Benami Act) states that the Central Government may,
by notification, provide that until the Adjudicating Authorities are appointed
and the Appellate Tribunal is established under the Benami Act,
the Adjudicating Authority appointed under sub-section (1) of section 6 of
the Prevention of Money-laundering Act, 2002 (15
of 2003) (hereinafter referred to as the PML Act) and the Appellate Tribunal
established under section 25 of the PML Act may discharge the functions of the
Adjudicating Authority and Appellate Tribunal, respectively, under the Benami Act;
AND, whereas, the Central Government, in exercise
of the powers conferred under section 71 of the Benami Act has
appointed the Adjudicating Authority and established the Appellate Tribunal
under the provisions of the PML Act vide notification number
S.O. 3288 (E), dated 25th October, 2016 with effect from 1st
day of November, 2016;
AND, whereas, on appointment of the Adjudicating
Authority and establishment of the Appellate Tribunal under the Benami Act,
the Adjudicating Authority and the Appellate Tribunal notified under section 71
of the Benami Act shall cease to discharge the functions under
the Benami Act, and whereas, there shall be a time gap between
the appointment of the Adjudicating Authority and establishment of the
Appellate Tribunal under the Benami Act and discharging the
functions of the said Authority and the said Appellate Tribunal under the Benami Act;
AND, whereas, a difficulty has arisen in respect of
the reference and appeal filed under the Benami Act which are
pending before the Adjudicating Authority and the Appellate Tribunal
respectively and in respect of receiving references from the Initiating Officer
by the Adjudicating Authority and filing of appeal against the order of
the Adjudicating Authority under the Benami Act, there is a
need to remove the difficulty arising from the time gap between the appointment
of the Adjudicating Authority and establishment of the Appellate Tribunal under
the Benami Act and discharging the functions of the said
Authority and the said Appellate Tribunal under the Benami Act;
AND, whereas, sub-section (7) of section 26 of
the Benami Act provides that the Adjudicating Authority shall
not pass order after the expiry of one year from the end of the month in which
the reference has been received by it from the Initiating Officer and whereas,
on the date on which the Adjudicating Authority under the Benami Act
shall discharge the functions under the Benami Act, there may
be references pending before the Adjudicating Authority notified under section
71 of Benami Act in which order under sub-section (3) of
section 26 may be required to be passed in a short period of time;
AND, whereas, a difficulty has arisen in view of
the fact that the Adjudicating Authority appointed under the Benami Act
may not have sufficient time for passing an order in respect of said references
and there is a need to remove the difficulty arising from the availability of
limited time for passing such order under the Benami Act;
NOW, therefore, in exercise of the powers conferred
by sub-section (1) of section 70 of the Prohibition of Benami Property
Transactions Act, 1988 (45 of 1988) the Central Government hereby makes the
following Order to remove the aforesaid difficulties, namely:-
1. Short title and commencement.—(1)
This Order may be called the Prohibition of Benami Property
Transactions (Removal of Difficulties) Second Order, 2018.
(2) It shall come into force on the date of its
publication in the Official Gazette.
2. In section 71 of the Prohibition of Benami Property
Transactions Act, 1988, after the words “under this Act” occurring at the end,
the words “for such period and in respect of such cases or class of cases as
may be specified in the said notification” shall be inserted.
[F. No. 370149/194/2017-TPL]
PRAVIN RAWAL, Director (Tax Policy &
Legislation)
MINISTRY OF FINANCE
(Department of Revenue)
(CENTRAL BOARD OF DIRECT TAXES)
NOTIFICATION New Delhi, the 25th October, 2016.
S.O. 3288(E).—In exercise of powers conferred under section 71 of
the Prohibition of Benami Property Transactions Act, 1988 (45 of 1988), the
Central Government hereby notifies that, with effect from the 1st day of
November, 2016, the Adjudicating Authority appointed under sub-section (1) of
section 6 of the Prevention of Money-Laundering Act, 2002 (15 of 2003) and the
Appellate Tribunal established under section 25 of that Act shall discharge the
functions of the Adjudicating Authority and Appellate Tribunal, respectively,
under the Prohibition of Benami Property Transactions Act, 1988 (45 of 1988)
until the Adjudicating Authorities are appointed and the Appellate Tribunal is
established under the Prohibition of Benami Property Transactions Act, 1988 (45
of 1988).
[Notification No. 97/2016/F. No. 149/144/2015-TPL (Part-II)]
PRAVIN RAWAL,
Director (Tax Policy & Legislation)
