FAQ

Supreme Court rules that Benami law cannot be applied retrospectively

Tags: National Economy/Finance

The Supreme Court on 23 August 2022 held that the Benami law can only be applied prospectively and not retrospectively, and held section 3(2) of the “Benami Transactions (Prohibition) Amendment Act, 2016", unconstitutional.

This will give relief to those against whom cases were initiated by the government for alleged benami transactions done by them before 1 November 2016.

What was the section 3(2) Benami Transactions (Prohibition) Amendment Act 2016 

The Benami Transactions (Prohibition) Act, 1988 was amended in 2016 and section 3(2) provided that “Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.

And section 3(3) makes the law applicable retrospectively for any benami transaction done before 1 November 2016.

Supreme Court upheld Calcutta High Court Judgement

• A three Judge Supreme Court bench led by Chief Justice Ramana was hearing a Central government appeal against the Judgment of the Calcutta High Court. 
• The Calcutta High court in the Union of India Vs Ganapati Dealcom ltd. case had ruled that the law will be applied prospectively. 
• Prospectively means that the law will be applicable from the date when it was notified by the government.
• Retrospective means that law is applicable from the back date.
• The Supreme Court held that the law will be applied prospectively and it quashed all cases which were filed for alleged benami transactions which were said to have taken before 1 November 2016.
• It also struck down section 3(2) of the act which provided for a three year jail term. 

What is Benami Transaction 

• The word benami means “without a name". In simple terms, a benami transaction refers to any transaction made by a person without using his name or by using the name of another person. For example, A person buys a flat in the name of his servant. 
• ‘Benamidar’ implies a person or a fictitious person, in whose name a benami property is transferred or held. He is not the beneficial owner of the transaction under consideration.
• The word “property" has been defined in a very wide manner to mean asset of any kind. It may be movable or immovable, tangible or intangible, and corporeal or incorporeal. Thus, it could include building, shares, securities, etc.

Punishment under the Act 

A person found guilty of the offence of benami transaction can face rigorous imprisonment from one to seven years. Fine is also levied up to 25% of the fair market value of the property.