Benami Transactions
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Benami Transactions (Prohibition) Act
No significance assigned to age of `benamidar'
Contrary to the assertions of Bihar deputy chief minister Tejashwi Yadav, both the Benami Transactions (Prohibition) Act, 1988, and the comprehensive amendment carried out in 2016 do not assign any significance to the age of the `benamidar' (holder of benami property). Tejashwi had ridiculed allegations by investigating authorities about numerous benami properties registered in his name, saying when the benami properties were allegedly acquired, he was just “14-15 years old“. “Can a minor commit such illegalities?“ he had asked.
But the 1988 Act and subsequent amendments are clear that benami properties -once authorities establish its nature of ownership as benami -are liable to be confiscated by the central government. This means, irrespective of the age of Tejashwi and his sister Misha Bharti at the time of alleged acquisition of benami properties, these are liable for confiscation by central government agencies.
While the 1988 law and the 2016 amendment are unequivocal on confiscation of benami properties, the amendment adds punishment for those who deal with sale and purchase of benami properties.
Whether the amendment will apply to transactions dealing with benami properties acquired before 2016, when it came into force, will depend on the way a court of law interprets it if the person to be prosecuted challenges the prosecution.
The amendment provides stringent punishment for those dealing in sale and purchase of benami properties and the age of the person has not been taken into consideration. The amended law provides that anyone attempting to “alienate benami property to frustrate provisions of any law, he will be liable to punishment for a minimum period of one year imprisonment and which could go up to seven years imprisonment“.In addition, the person could be fined up to 25% of the fair market value of the benami property being transacted.
The law also makes it an offence if any benamidar provides wrong information to authorities or furnishes wrong documents. This offence will attract a punishment of minimum six months imprisonment which could go up to five years, in addition to fine that could be 10% of the fair market value of the property in question.
However, both the Benami Transactions (Prohibition) Act and the amendment make it no offence for the child, if the property is registered in his name by herhis parents. But the moment it is established that the property is held in the name of the child by the parents, the onus of establishing legitimate acquisition of the property will shift to the parents, and if they are public servants, under the more stringent Prevention of Corruption Act.
