Introduction to Benami Transaction

Shreya Shrivastava|Symbiosis Law School, Hyderabad| 6th June 2020

Introduction

The word ‘Benami’ is a Persian origin word which means ‘without a name’. The traces of Benami transaction could be found in our history where Hindu law as well as Mohammedan law called the transaction as ‘farzee’. Under Hindu law, the word is used to denote that a property has been held under the name of a third party, or a fictitious name is been used as a superficial owner for the main or the beneficial owner. It is considered that the system of the Benami transaction started was to hide the personal family affairs from the outside world. The technical definition can be, Benami is the holding of the property of a real owner in the name of another person, but the real owner will only have the beneficial ownership.

In the year 1778, after the establishment of Mr. Justice Hyde’s notes of British rule in India, Benami transactions were noticed. In the case of Gopeekrist Gosain v. Gungapersuad[1], in the year 1854, the review cases committee held that, until otherwise ordered by the law Benami transactions come under the customs of the country and must be recognized. Further, in the year 1882, the legislative recognition was given to the Benami transaction by the implementation of section 81 and section 82 of the Indian Trusts Act, 1882[2], and courts were bound to abide by it and enforce it.

For the first time in 1976, the Parliament intervened and introduced section 281A in the Income Tax Act, 1961whereby the institutions of suits of Benami transactions were barred. But, it didn’t help and finally, the Parliament had to prohibit the Benami transactions and making it an offense, further also, prohibiting all the suits and actions to Benami transactions. Later on, The Parliament to stop the frauds and abuse also repealed section 281A of the Income Tax Act, 1961 along with other consequential repeals. Further, the Law Commission was requested to look into the matter of Benami transactions and the 57^th Report was submitted by the Law Commission recommending the implementation of the Benami Transaction (Prohibition of the Right to Recover Property) Ordinance, 1988. The Ordinance was further converted into an Act by introducing the Bill in the Parliament.

On 5^th September 1988, the Bill became an Act and was passed by both the Houses of Parliament and received the assent of the President.

The Authorities for the Act

• Adjudicating Authority
• The Initiating Officer
• Administrative Authority
• Approving Authority

Under Section 19(1), it has been provided that all the powers shall be vested with the authorities as mentioned under Civil Procedure Court (CPC). All the suits concerning the production of books of accounts, other documents, inspection, and discovery, issuing of commissions, an examination of any person for the attendance under the oath and any other prescribed matters will be dealt with the civil courts.

Other officers that can assist the authorities in the enforcement of the Act[3]:

• Customs and Central Excise Department Officers
• Income Tax Authorities
• Police
• Narcotics Drugs and Psychotropic Substances Act Officers
• Officers of the Central Government, State Government, local authorities, or banking companies notified by the Central Government for this Act.
• Officers of a recognized stock exchange
• Enforcement Officers under the Act of Foreign Exchange Management.
• Officers of Reserve Bank of India
• Any ‘corporate body’ which is been established or constituted under the State of Central Act.
• Officers of Securities and Exchange Board of India

New amendments made

The first amendment was made in 2011 and was introduced on 18^th August 2011 in Lok Sabha, The Benami Transactions (Prohibition) Bill, which replaced the earlier Benami Transactions (Prohibition) Act, 1988. The Bill gave the new definition for the Benami transaction as an arrangement where;

1. The property is held by another person (other than fiduciary relation) on behalf of a person who paid for it; or
2. A fictitious name was used for the transaction of the property; or 
3. The ownership of the property was denied by the real owner of the property.  

Punishment was laid down in the Bill.

Later, in the year 2015 the new Benami Transaction Bill was introduced by Mr. Arun Jaitley the then Minister of Finance on 13^th May 2015 in Lok Sabha, seeking amendments in the Benami Transaction Act,1988. The prohibited the Benami transactions and provided for the confiscation of such properties. It also seeks to:

1. The Benami transactions definition to be amended,
2. Establishment of the adjudicating authorities and an appellate tribunal for dealing with the transactions, and
3. The penalty to be specified if one comes in Benami transaction.

Certain cases exempted from the definition of the Benami transaction.

The latest addition to the act was in 2016, The Benami Transaction Amendment Act, which converged strict actions on persons who will hold the property by illegal means and will evade the law. The clear-cut definition was given to the Benami property, ‘the property whose title deed is held by the other person, who is known as Benamidar, and the real owner is the beneficial owner’.

Exceptions to Benami Transaction

Exceptions were made considering that not all the properties are Benami properties if,

1. the representing party is the benefit of one person like a trustee of a trust or partner in a firm or any such person,
2. the property has been bought under the joint ownership (in the name of his brother’s or sister’s or his name or the name of his lineal ascendants.) but the consideration has been paid by his income,
3. the property is bought by the Karta of Hindu Undivided Family but the consideration is paid by the Hindu Undivided Family.

Further, the punishment was extended up to 7 years and the liability was increased to 25% of the market value of the property.

Conclusion

Mostly, the Benami property is bought for the illegal purposes and never for the person’s benefit on whose name the property has been bought. Our history shows that Benami transactions were considered as the culture of the society and it is difficult to eliminate it from society. Though strict action has been taken in the past against Benami transactions, it has refined themselves in many other forms apart from the transaction which is money laundering. Mere, passing of Acts and amendment of Bills is not sufficient the impact has to be studied, understood, and be analyzed to curb the problem.

[1] (1854) 6 MLA 53

[2] Both the sections i.e. section 81 and section 82 of the Act have been Repealed.

[3] Sec. 20 of the Act.