What is a Benami Property & Benami Act?

Benami Property is a property whose legal owner is not its actual owner. That is, while the asset is legally held in the name of a particular person (benamidar), it actually belongs to another person (beneficial owner) who has paid for it and continues to hold interest in it. 

Under the Act, the term ‘property’ has been defined comprehensively to include not only immovable assets such as land, flat or house but also movable assets such as gold, stocks, mutual fund holdings and even bank deposits. Nothing has, in fact, been spared. If the property is sold off, then the proceeds from it too are considered benami.

Under the new Benami Act, property purchased in the name of a fictitious person or where the payment for the property has been made by someone who does not exist or cannot be traced too is considered benami. The Act covers all domestic benami property transactions conducted since 1988.

However, if you have bought some property in the name of your spouse or child from your known sources of income, it will not be treated as benami.

You can also buy property for your brother, sister, a lineal ascendant or a lineal descendant but that must be held jointly with you for it to be excluded under the Act.

Lineal ascendants include your father, mother, grandparents, great-grandparents and so on and lineal descendants include your children, grandchildren, great-grandchildren and so on. Apart from that, property held by the karta or a member of the Hindu Undivided Family (HUF), the payment for which has been made by known sources of income of the HUF, too will not be treated as benami. 

Giving it teeth

The Act gives the Initiating Officer (Assistant or Deputy Commissioner of Income Tax) the power to enquire into any person, place, documents or property in the course of investigation into any matter related to a benami property transaction. 

It also mandates officers from different government organisations such as the Customs and Central Excise departments, the narcotics department, RBI and SEBI to assist the authorities tasked with investigation. If the Initiating Officer is convinced that you hold a benami property, you will be issued a notice, and, if required, the property will also be provisionally attached. 

Strict action 

If the available evidence confirms it, the Adjudicating Authority (appointed by the Centre) will order confiscation of property by the government. 

Apart from awarding imprisonment of up to seven years to the beneficial owner and the benamidar, others involved in the deal, too, will not be spared. A fine of up to a fourth of the market value of the property can be imposed on all parties. 

Those providing false information or documents to the authorities may be imprisoned for up to five years and face a fine of up to 10 per cent of the market value of the property involved. Appeals can however, be made against the decision. The Act provides for an Appellate Authority, appointed by the Central government, for this purpose. 

Further appeals lie with the relevant High Court but have to be made within 60 days from the decision of the Appellate Tribunal.

Another point worth noting is that there’s no way you can have a benami property back in your name. The new Act clearly forbids re-transfer of a property from the benamidar to the beneficial owner. And if a re-transfer does happen, it will be considered invalid.

With the new Benami Act leaving no route for escape, it’s time you became an honest taxpayer.

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