Evading taxes through investing in assets with some other name and also
getting return on investment for your black money? Seems good right? The
amendment of 2016 in benami transactions bill, you will not like and this
attracts rigorous imprisonments for the said act.
As we are Indians and inventors of great solutions; one such solution for this
is transferring the property again when you get to know that you can be
interrogated and declared it as good faith? Lawmakers too have many solutions.
Let's analyze these situations and make people aware that benami transactions
will not be easy anymore.
Transactions which qualify as benami
- The Benami Transaction (Prohibition Act, 1988) The Benami Transactions
(Prohibition) Act, 1988 was enacted to prohibit benami transactions and the
right to recover property held benami and for matters connected therewith.
Benami literally means ‘without a name’. In this Act, the word benami is
used to refer to a property/asset with no name attached to it.
The actual owner is not the person who has the legal title to the
property. This act is essential to govern flow of black money invested in
assets and not hoarding cash. Assets in this act comprises property, shares,
debentures, fixed deposits and bank accounts are held by one person for
There are some terms required to begin the journey - Section 2(10)
defines Benamidar as:
Benamidar means a person or a fictitious person, as
the case may be, in whose name the benami property is transferred or held
and includes a person who lends his name.
Section 2(12) defines Beneficial owner as: Beneficial owner means a person,
whether his identity is known or not, for whose benefit the benami property
is held by a Benamidar.
The beneficial owner provides or pays consideration for purchase of
Beneficial owner can be any person. Section 2(16) defines Fair market
- the price that the property would ordinarily fetch on sale in the open
market on the date of the transaction; and
- where the price referred to in sub-clause (I) is not ascertainable, such
price may be determined in accordance with such manner as prescribed in Rule
3 of Prohibition of Benami Transactions Rules, 2016.
Let's discuss some of the examples for better understanding
- transaction where property is transferred or to held by one person
and the consideration for such property paid by another person and
- property held for immediate or future benefit of person who gave the
consideration, Except When Property Is Held By:
- Karta or Member of HUF
- a person in fiduciary capacity for the benefit of another person like
trustee, partner, director of company or depository as agent of the actual
- an individual in name of spouse and child
- Joint owners (brother or sister, lineal ascendant or descendant.
- transaction in fictitious name
- transaction where the owner of property is unaware or denies ownership.
- transaction where source of consideration is unknown. (Not traceable)
Exigency for the amendment, 2016
- Mr. X, a non-resident Indian, purchased a flat for 10,00,000 in the
joint name of his brother and himself and made the payment from an unknown
- Mr Y. A indian resident purchase a flat for his son,
a USA resident but he denies the ownership of the flat.
- Mr. B a resident Indian sold a flat which was not in his name and was in
unknown person name. But deposited the sale proceeds in his own
- Mr. K, a resident Indian, a flat was purchased for 10,00,000 and payment
was made by an unknown person.
Field of vision:
Before amendment, the punishment for benami transactions was - 3 years of jail,
fine or both.
After amendment, the punishment faced will be of rigorous imprisonment for up to
7 years and fine up to 25% of fair market value of such property.
As the time grows laws get outdated and inefficient for the purpose of
protecting right of people and rules laid by the government
- Re-transfer of property
If it is re-transferred then it will be declared null and void unless as per
section 190 of Finance Act, 2016, where if undisclosed property could be
disclosed then it will be valid.
The whole process affects the revenue generation of the government and hampers
growth and development of the country. Since the percentage of taxpayers in the
country is a miserable low, the government fails to successfully implement its
policies and schemes due to lack of resources or will. A strong law against
benami properties is the need of the hour to check corruption.
- Some landmark cases that clears the stand of law:
- Bhim Singh & Anr vs Kan Singh (Supreme Court) Key points from the case:
- The burden to prove a transaction is benami or not lies on the person who
claims it to be benami.
- If consideration is paid by a different person other than in whose favor
property is transferred, then purchase is assumed to be for the benefit of
the person who paid consideration.
- Intention of the person who paid consideration is most important.
- Intention is decided on current circumstances, relationship of
parties, motives behind the transaction and their subsequent conduct.
- Smt. P.Leelavathi vs V. Shankaranarayana Rao
In the case of Binapani Paul v. Pratima Ghosh the court had held
that the source of money had never been the sole consideration, and is only
merely one of the relevant considerations but not determinative (deciding) in
character. "It is true that, at the time of purchase of the suit properties,
some financial assistance was given by Late G. Venkata Rao. However, as observed
by this Court in the aforesaid decisions, that cannot be the sole determinative
factor/circumstance to hold the transaction benami in nature. It is not a benami
transaction. Only financial assistance by the father in purchasing of the
property will not confer it to be a benami transaction.
- Niharika Jain W/o Shri Andesh Jain Vs Union of India
The Rajasthan High Court observed that-Unless a contrary intention
is reflected, a legislation is presumed and intended to be prospective.
Where an amendment affects rights or imposes obligations or casts a new duties
or attached a new disability is to be treated as prospective. Accordingly, the
Rajasthan High Court threw the entire transactions entered by the petitioner
before amendment out of the purview of Benami Act.
- The government took a great stance by amending the laws rather than
getting new ones. An amendment was issued instead of a new Act because if a
new Act was introduced then the transaction entered from 1988 to 2016 would
get protection as the law does not allow retrospective punishment.
- People intentionally do this to avoid payment to the creditors and by
doing so they are hindering the revenue system in two ways; first for their
creditors by increasing their bad debt and secondly by evading taxes
themselves encouraging use of black money.
- Benami transactions especially in the real estate market prevail,
skyrocketing the prices of lands because people who purchase lands in this
way are ready to give more prices without disclosing to the government
creating an imbalance between price on paper and price in real.
- Benami transactions in foreign currency is still the regular practice
among businesses and big loss for Indian government as we can't trace the
account; the steps have been taken but still much more effort is still
- In India the currency for benami is gold also and it has a very wide
scope for embezzlement. There is a practice in markets: people book gold
with some other name and consideration is given by some other person.
Revenue for government is still embezzled and Indian people actually have
methods but government now has become stringent in many ways, these days we are
seeing covifrauds and it is also related to our topic; benami person booking an
injection on some other’s name (prescription) and then black- marketing starts.
This example above is small scenario we have discussed some really big problems
in our article above with a view to curb these transactions and work
for strengthening the economy and people of this country.