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The definitions of benami transaction and property are radically changed by the amending Act. So are the provisions regarding investigation of contraventions, offences etc., the consequence of it namely, confiscation, prosecution etc. The show-cause notice dated 29thAugust, 2017 was issued under Section 24(1) of the 1988 Act as amended. It referred to the alleged benami transaction by the appellant under Section 2(8) and 2(9)(D) thereunder. Therefore to allege contravention of the 1988 Act as amended in 2016 the contravention should have been made after the date of coming into force of the amendment. In the absence of retrospective operation of the amending Act, one cannot allege that the transaction resulting in the said contravention of the 1988 Act as amended in 2016 took place in 2011. That is exactly what the impugned show-cause notice proposed to do. Now, it is an accepted principle of law that the statute cannot have any retrospectivity unless expressly provided therein.

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Section 8 of the Benami Transaction (Prohibition) Act, 1988—Benami Transaction— The omission on the part of the government to frame rules under Section 8 of the Benami Transaction Act, 1988 rendered it a dead letter and wholly inoperative and assuming that the appellant had entered into a benami transaction in 2011, no action could be taken by the Central government, in the absence of enabling procedural rules and it is well within the right of the appellant to contend that the Central government had waived its rights. Applying the definition of benami property and benami transaction the Central government could not, on the basis of the 2016 amendment allege contravention and start the prosecution in respect of a transaction in 2011 — GANPATI DEALCOM PVT. LTD. Vs. UOI [2020] 421 ITR 483 (CAL).

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