ORDER
1. The present Appeal has been preferred by the Initiating Officer challenging the impugned order dated 16.03.2022 passed by the Ld. Adjudicating Authority (PBPT Act) in reference /File No. AA/MUM/pBPT ACT/297/2021. The prayer inter-alia is to set aside or varied or modify the impugned order and to confirm the Provisional Attachment Order (PAO) passed by the Appellant under Section 24 (4) (a) (i) of the PBPT Act, 1988 (said Act) dated 22.10.2021.
2. The case in Brief is that:-
The Initiating Officer had sent a reference under Section 24 (5) of the Act to the Ld. Adjudicating Authority (Ld. AA). According to the said PAO/Reference Shri Jitendra Rameshbhai Patel is the alleged Benamidar (B.D) and M/s. Om Gold Tradenet Ltd. is the Beneficial Owner (B.O.). It is the allegation that on the basis of information received that on 12.11.2016 an amount of Rs.9,50,000/- was found deposited in cash in the Axis Bank Account No. 914020056017663 maintained by the B.D and on the same day subsequently transferred the aforesaid amount to Account No. 0060008700101173 maintained with the Punjab National Bank (PNB) by the B.O through RTGS. The deposit and transfer of the aforesaid amount is confirmed by the B.D himself in his statement before the Authority. It is also revealed from the record that the B.D, on the instructions of one person namely Shri Hitesh Parekh accepted the aforesaid cash and deposited the same in the Axis Bank against commission of Rs. 19,000/- and transferred the same to the account of B.O on the same day i.e., 12.11.2016. It is also the case of the Initiating Officer that the B.D has neither purchased any items nor availed any services nor he has authorized anybody to take any service nor received any goods from B.O and that B.D does not know any person by name Shri Brijesh Agarwal. It is further revealed from the records that the statement of Shri Brijesh Agarwal was recorded on 30.06.2021 and in his statement Mr. Agarwal has denied any transaction with the B.O regarding the delivery of gold to him or to any of his authorized person.
3. On the other hand, the Ld. Counsel for the B.O restricted his arguments on factual aspects of the case and submitted that Section 2(9) (A) of the said Act is not attracted as there is a clear sale transactions and that there is no benami transactions involved in the present case. It is inter-alia the case of the B.O that a sum of Rs.9,50,000/- has been transferred to his account on 12.11.2016 and gold of 328 grams of gold was sold to B.D and delivered to a person as per telephonic instruction from Shri Brijesh Agarwal vide Sale Bill dated 01.12.2016. It is the stand of the B.O that he is not the Beneficial Owner of the amount of Rs.9,50,000/- rather it was a simple sale transaction and gold has been sold against the aforesaid amount sold to the B.D. It is also the contention of the B.O that there is no evidence produced by the Appellant Authority nor any investigation was made to record the statement of Mr. Hitesh Parekh.
4. In the present Appeal Shri Jitendra Rameshbhai Patel is held to be the B.D. It is the case of the B.D that he is running a proprietory concern named “Aditya Enterprises” since May, 2016 and registered as a broker in National Commodity Exchange Ltd. and is also dealing in share trading and commission and that he has maintained an account with Axis Bank (supra) and these transactions carried out in the said account are not regular business transaction and that after the demonetization of high value old notes, various parties approached him and handed over old notes which he deposited in his bank account and after receiving commission returned back down through RTGS/Cheque payments to the concerned parties and that in the present case one Mr. Hitesh Parekh one of his known person approached him for monetizing the demonetized notes though his account against commission and he accepted the cash on 12.11.2016 from Shri Parekh, deposited the same in his account and transferred the said amount of Rs. 9,50,000/- to the account of B.O on the same date. It is also on record that the B.D knows B.O through Mr. Hitesh Parekh. At the same time it is his statement that he never purchased any gold from the B.O nor authorized any person namely Shri Brijesh Agarwal to take delivery of any gold from B.O. The aforesaid statement has been confirmed by B.D through e-mail dated 09.02.2021 addressed to the Authority.
5. It is further argued by the Ld. Counsel for the Appellant that the B.O created fake Bill/invoice in the name of the B.D but never delivered the gold of 328 grams to him but shown to have delivered it to one Mr. Brijesh Agarwal who denied to have received any such gold from the B.O. It is also argued that neither any delivery note has been filed by the B.O nor any evidence like CCTV etc. has been produced to proof the delivery of gold of 328 grams. It was also argued that merely because Mr. Hitesh Parekh was not examined it cannot be said that the transaction is not Benami in nature. The transfer of money from B.D to B.O was an accommodation entry in his bank account to park the illegal money and to project it as genuine transaction. The case is covered under Section 2 (9)(A) of said Act and it is prayed that the Appeal may be allowed.
6. Heard both sides and perused the material available on record. It is seen from the order dated 09.07.2025 that none appears for the Respondent No. 1 i.e., the B.D despite service. The uncontroverted facts in the present Appeal is that during the period of demonetization B.D has received a sum of Rs.9,50,000/- from Mr. Hitesh Parekh. The B.D deposited aforesaid sum in his savings bank account (supra) maintained in Axis Bank, Memnagar Branch against receipt of commission on 12.11.2016 and the said sum of money was transferred to the account of B.O on the same date. It is clearly admitted by B.D in his statement dated 30.07.2021 that the above transactions pertains to the B.O for which cash is received from the B.O through Mr. Hitesh Parekh. It is also undisputed fact that the B.D has not purchased any items from the B.O nor availed any services from it nor authorized anybody to take any services from the B.O.
7. Section 2(9)(A) of the said Act has defined the word “benami transactions” as below: –
“(A) a transaction or an arrangement-
(a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and
(b) the property is held for the immediate or further benefit, direct or indirect of the person who has provided the consideration.”
8. In the present case, the transactions were carried out to project the unaccounted money as legally earned money by the B.O and that the property was transferred to the B.D which prima facie, turned out to be not a genuine transactions but one executed for the immediate benefit of the B.O who had prima facie, provided the consideration. The aforesaid transactions were undertaken merely provide accommodation to park the ill-gotten money. The said transactions are covered by the definition of benami transactions as provided under 2(9)(A) of the said Act. The Ld. Adjudicating Authority has not considered all these facts and erroneously revoked the Provisional Attachment Order dated 22.10.2021 on the ground of surmises and conjecture.
9. We have restricted our order after considering whatever have been submitted orally by the Ld. Counsel for both the parties during the course of arguments.
10. In the light of aforesaid discussions we find that there are sufficient cause to interfere in the impugned order passed by the A.A on 16.03.2022. Accordingly, we allow the Appeal by setting aside the orders passed by the A.A and confirmed the Provisional Attachment Order dated 22.10.2021.