[7. Adjudicating Authority.—The competent authority authorised under sub-section
(1) of section 5
of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (13 of 1976) shall
be the Adjudicating Authority to exercise jurisdiction, powers and authority conferred by or under this
Act.]
8. [Composition of Authority].—Omitted by Act 13 of 2021, s. 156 (w.e.f. 01-07-2021).
1. Ins. by Act 43 of 2016, s. 5 (w.e.f. 1-11-2016).
2. Omitted by s. 6, ibid. (w.e.f. 1-11-2016).
3. Sub-section
(3) renumbered as sub-section
(2) thereof by s. 6, ibid. (w.e.f. 1-11-2016).
4. Ins. by s. 6, ibid (w.e.f. 1-11-2016).
5. Omitted by s. 6, ibid. (w.e.f. 1-11-2016).
6. Omitted by s. 7, ibid. (w.e.f. 1-11-2016).
7. Subs. by s. 8, ibid., for sections 5 and 6 (w.e.f. 1-11-2016).
8. Ins. by s. 9, ibid. (w.e.f. 1-11-2016).
9. Subs. by Act 13 of 2021, s. 155, for section 7 (w.e.f. 1-7-2021).
7
9. [Qualifications for appointment of Chairperson and Members].—Omitted by Act 13 of 2021, s.
156 (w.e.f. 01-07-2021).
10. [Constitution of Benches of Adjudicating Authority].—Omitted by ibid, s. 156 (w.e.f. 01-07-
2021).
11. [Power of Adjudicating Authority to regulate its own procedure].— Omitted by ibid, s. 156
(w.e.f. 01-07-2021).
12. [Term of office of Chairperson and Members of Adjudicating Authority].—Omitted by ibid, s.
156 (w.e.f. 01-07-2021).
13. [Terms and conditions of services of Chairperson and Members of Adjudicating
Authority].—Omitted by ibid, s. 156 (w.e.f. 01-07-2021).
14. [Removal of Chairperson and Members of Adjudicating Authority].—Omitted by ibid, s. 156
(w.e.f. 01-07-2021).
15. [Member to act as Chairperson in certain circumstances].—Omitted by ibid, s. 156 (w.e.f. 01-
07-2021).
16. [Vacancies, etc., not to invalidate proceedings of Adjudicating Authority].—Omitted by ibid, s.
156 (w.e.f. 01-07-2021).
17. [Officers and employees of Adjudicating Authority].—Omitted by ibid, s. 156 (w.e.f. 01-07-
2021).
18. Authorities and jurisdiction.—
(1) The following shall be the authorities for the purposes of this
Act, namely:—
(a) the Initiating Officer;
(b) the Approving Authority;
(c) the Administrator; and
(d) the Adjudicating Authority.
(2) The authorities shall exercise all or any of the powers and perform all or any of the functions
conferred on, or, assigned, as the case may be, to it under this Act or in accordance with such rules as may
be prescribed.
19. Powers of authorities.—
(1) The authorities shall, for the purposes of this Act, have the same
powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a
suit in respect of the following matters, namely:—
(a) discovery and inspection;
(b) enforcing the attendance of any person, including any official of a banking company or a public
financial institution or any other intermediary or reporting entity, and examining him on oath;
(c) compelling the production of books of account and other documents;
(d) issuing commissions;
(e) receiving evidence on affidavits; and
(f) any other matter which may be prescribed.
(2) All the persons summoned under sub-section
(1) shall be bound to attend in person or through
authorised agents, as any authority under this Act may direct, and shall be bound to state the truth upon
any subject respecting which they are examined or make statements, and produce such documents as may
be required.
(3) Every proceeding under sub-section
(1) or sub-section
(2) shall be deemed to be a judicial
proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860).
(4) For the purposes of this Act, any authority under this Act may requisition the service of any police
officer or of any officer of the Central Government or State Government or of both to assist him for all or
any of the purposes specified in sub-section
(1), and it shall be the duty of every such officer to comply
8
with the requisition or direction.
(5) For the purposes of this section, “reporting entity” means any intermediary or any authority or of
the Central or the State Government or any other person as may be notified in this behalf.
Explanation.—For the purposes of sub-section
(5), “intermediary” shall have the same meaning as
assigned to it in clause
(n) of sub-section
(1) of section 2 of the Prevention of Money-Laundering
Act, 2002 (15 of 2003).
20. Certain officers to assist in inquiry, etc.—The following officers shall assist the authorities in the
enforcement of this Act, namely:—
(a) income-tax authorities appointed under sub-section
(1) of section 117 of the Income-tax Act,
1961 (43 of 1961);
(b) officers of the Customs and Central Excise Departments;
(c) officers appointed under sub-section
(1) of section 5 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (61 of 1985);
(d) officers of the stock exchange recognised under section 4 of the Securities Contracts
(Regulation) Act, 1956 (42 of 1956);
(e) officers of the Reserve Bank of India constituted under sub-section
(1) of section 3 of the
Reserve Bank of India Act, 1934 (2 of 1934);
(f) police;
(g) officers of enforcement appointed under sub-section
(1) of section 36 of the Foreign Exchange
Management Act, 1999 (40 of 1999);
(h) officers of the Securities and Exchange Board of India established under section 3 of the
Securities and Exchange Board of India Act, 1992 (15 of 1992);
(i) officers of any other body corporate constituted or established under a Central or a State Act;
And
(j) such other officers of the Central Government, State Government, local authorities or banking
companies as the Central Government may, by notification, specify, in this behalf.
21. Power to call for information.—
(1) The Initiating Officer or the Approving Authority or the
Adjudicating Authority shall have power to require any officer of the Central Government or State
Government or a local body or any person or officer who is responsible for registering and maintaining
books of account or other documents containing a record of any transaction relating to any property or any
other person to furnish any information in relation to any person, point or matter as in his opinion shall be
useful for or relevant for the purposes of this Act.
(2) Without prejudice to sub-section
(1), every officer or person referred to in sub-section
(1) shall
furnish such information to any authority under this Act in such form and manner as may be prescribed.
22. Power of authority to impound documents.—
(1) Where any books of account or other
documents are produced before the authority in any proceedings under this Act and the authority in this
behalf has reason to believe that any of the books of account or other documents are required to be
impounded and retained for any inquiry under this Act, it may impound and retain the books of account or
other documents for a period not exceeding three months from the date of order of attachment made by the
Adjudicating Authority under sub-section
(3) of section 26:
Provided that the period for retention of the books of account or other documents may be extended
beyond a period exceeding three months from the date of order of attachment made by the Adjudicating
Authority under sub-section
(3) of section 26 where the authority records in writing the reasons for
extending the same.
(2) Where the authority impounding and retaining the books of account or other documents, under
sub-section
(1) is the Initiating Officer, he shall obtain approval of the Approving Authority within a
period of fifteen days from the date of initial impounding and seek further approval of the Approving
Authority for extending the period of initial retention, before the expiry of the period of initial retention, if
9
so required.
(3) The period of retention of the books of account or other documents under sub-section
(1) shall in
no case exceed a period of thirty days from the date of conclusion of all the proceedings under this Act.
(4) The person, from whom the books of account or other documents were impounded under
sub-section
(1), shall be entitled to obtain copies thereof.
(5) On the expiry of the period specified under sub-section
(1), the books of account or other
documents shall be returned to the person from whom such books of account or other documents were
impounded unless the Approving Authority or the Adjudicating Authority permits their release to any
other person.
23. Power of authority to conduct inquiry, etc.—The Initiating Officer, after obtaining prior
approval of the Approving Authority, shall have power to conduct or cause to be conducted any inquiry or
investigation in respect of any person, place, property, assets, documents, books of account or other
documents, in respect of any other relevant matters under this Act.
1
[Explanation.—For the removal of doubts, it is hereby clarified that nothing contained in this section
shall apply and shall be deemed to have ever applied where a notice under sub-section
(1) of section 24 has
been issued by the Initiating Officer.]
CHAPTER IV
ATTACHMENT, ADJUDICATION AND CONFISCATION
24. Notice and attachment of property involved in benami transaction.—
(1) Where the Initiating
Officer, on the basis of material in his possession, has reason to believe that any person is a benamidar in
respect of a property, he may, after recording reasons in writing, issue a notice to the person to show cause
within such time as may be specified in the notice why the property should not be treated as benami
property.
(2) Where a notice under sub-section
(1) specifies any property as being held by a benamidar referred
to in that sub-section, a copy of the notice shall also be issued to the beneficial owner if his identity is
known.
(3) Where the Initiating Officer is of the opinion that the person in possession of the property held
benami may alienate the property during the period specified in the notice, he may, with the previous
approval of the Approving Authority, by order in writing, attach provisionally the property in the manner
as may be prescribed, for a period not exceeding ninety days 2[from the last day of the month in which the
notice under sub-section
(1) is issued.]
(4) The Initiating Officer, after making such inquires and calling for such reports or evidence as he
deems fit and taking into account all relevant materials, shall, within a period of ninety days 2[from the
last day of the month in which the notice under sub-section
(1) is issued],—
(a) where the provisional attachment has been made under sub-section
(3),—
(i) pass an order continuing the provisional attachment of the property with the prior approval
of the Approving Authority, till the passing of the order by the Adjudicating Authority under sub-
section
(3) of section 26; or
(ii) revoke the provisional attachment of the property with the prior approval of the
Approving Authority;
(b) where provisional attachment has not been made under sub-section
(3),—
(i) pass an order provisionally attaching the property with the prior approval of the Approving
Authority, till the passing of the order by the Adjudicating Authority under sub-section
(3) of
section 26; or
1. Ins. by Act 23 of 2019, s. 173 (w.e.f. 1-11-2016).
2. Subs. by Act 23 of 2019, s. 174, for “from the date of issue of notice under sub-section
(1)” (w.e.f. 1-9-2019).
10
(ii) decide not to attach the property as specified in the notice, with the prior approval of the
Approving Authority.
1
[Explanation.— For the purposes of this section, in computing the period of limitation, the period
during which the proceeding is stayed by an order or injunction of any court shall be excluded:
Provided that where immediately after the exclusion of the aforesaid period, the period of limitation
referred to in sub-section
(4) available to the Initiating Officer for passing order of attachment is less than
thirty days, such remaining period shall be deemed to be extended to thirty days:
Provided further that where immediately after the exclusion of the aforesaid period, the period of
limitation referred to in sub-section
(5) available to the Initiating Officer to refer the order of attachment to
Adjudicating Authority is less than seven days, such remaining period shall be deemed to be extended to
seven days.]
(5) Where the Initiating Officer passes an order continuing the provisional attachment of the property
under sub-clause
(i) of clause
(a) of sub-section
(4) or passes an order provisionally attaching the property
under sub-clause
(i) of clause
(b) of that sub-section, he shall, within fifteen days from the date of the
attachment, draw up a statement of the case and refer it to the Adjudicating Authority.
25. Manner of service of notice.—
(1) A notice under sub-section
(1) of section 24 may be served on
the person named therein either by post or as if it were a summons issued by a Court under the Code of
Civil Procedure, 1908 (5 of 1908).
(2) Any notice referred to in sub-section
(1) may be addressed—
(i) in case of an individual, to such individual;
(ii) in the case of a firm, to the managing partner or the manager of the firm;
(iii) in the case of a Hindu undivided family, to Karta or any member of such family;
(iv) in the case of a company, to the principal officer thereof;
(v) in the case of any other association or body of individuals, to the principal officer or any
member thereof;
(vi) in the case of any other person (not being an individual), to the person who manages or
controls his affairs.
26. Adjudication of benami property.—
(1) On receipt of a reference under sub-section
(5) of
section 24, the Adjudicating Authority shall issue notice, to furnish such documents, particulars or
evidence as is considered necessary on a date to be specified therein, on the following persons, namely:—
(a) the person specified as a benamidar therein;
(b) any person referred to as the beneficial owner therein or identified as such;
(c) any interested party, including a banking company;
(d) any person who has made a claim in respect of the property:
Provided that the Adjudicating Authority shall issue notice within a period of thirty days from the
date on which a reference has been received:
Provided further that the notice shall provide a period of not less than thirty days to the person to
whom the notice is issued to furnish the information sought.
(2) Where the property is held jointly by more than one person, the Adjudicating Authority shall
make all endeavours to serve notice to all persons holding the property:
Provided that where the notice is served on anyone of the persons, the service of notice shall not be
invalid on the ground that the said notice was not served to all the persons holding the property.
(3) The Adjudicating Authority shall, after—
(a) considering the reply, if any, to the notice issued under sub-section
(1);
1. Ins. by Act 23 of 2019, s. 174 (w.e.f. 1-9-2019).
11
(b) making or causing to be made such inquiries and calling for such reports or evidence as it
deems fit; and
(c) taking into account all relevant materials,
provide an opportunity of being heard to the person specified as a benamidar therein, the Initiating
Officer, and any other person who claims to be the owner of the property, and, thereafter, pass an order—
(i) holding the property not to be a benami property and revoking the attachment order; or
(ii) holding the property to be a benami property and confirming the attachment order, in all
other cases.
(4) Where the Adjudicating Authority is satisfied that some part of the properties in respect of which
reference has been made to him is benami property, but is not able to specifically identify such part, he
shall record a finding to the best of his judgment as to which part of the properties is held benami.
(5) Where in the course of proceedings before it, the Adjudicating Authority has reason to believe that
a property, other than a property referred to it by the Initiating Officer is benami property, it shall
provisionally attach the property and the property shall be deemed to be a property referred to it on the
date of receipt of the reference under sub-section
(5) of section 24.
(6) The Adjudicating Authority may, at any stage of the proceedings, either on the application of any
party, or suo motu, strike out the name of any party improperly joined or add the name of any person
whose presence before the Adjudicating Authority may be necessary to enable him to adjudicate upon and
settle all the questions involved in the reference.
(7) No order under sub-section
(3) shall be passed after the expiry of one year from the end of the
month in which the reference under sub-section
(5) of section 24 was received.
1
[Explanation.—For the purposes of this sub-section, in computing the period of limitation, the period
during which the proceeding is stayed by an order or injunction of any court shall be excluded:
Provided that where immediately after the exclusion of the aforesaid period, the period of limitation
available to the Adjudicating Authority for passing order is less than sixty days, such remaining period shall
be deemed to be extended to sixty days.]
2
[Provided that where the time limit for passing order under this sub-section expires during the period
beginning from the 1st day of July, 2021 and ending on the 29th day of September, 2021, the time limit for
passing such order shall be extended to the 30th day of September, 2021.]
(8) The benamidar or any other person who claims to be the owner of the property may either appear
in person or take the assistance of an authorised representative of his choice to present his case.
Explanation.—For the purposes of sub-section
(8), authorised representative means a person
authorised in writing, being—
(i) a person related to the benamidar or such other person in any manner, or a person regularly
employed by the benamidar or such other person as the case may be; or
(ii) any officer of a scheduled bank with which the benamidar or such other person maintains an
account or has other regular dealings; or
(iii) any legal practitioner who is entitled to practice in any civil court in India; or
(iv) any person who has passed any accountancy examination recognised in this behalf by the Board;
or
(v) any person who has acquired such educational qualifications as the Board may prescribe for this
purpose.
27. Confiscation and vesting of benami property.—
(1) Where an order is passed in respect of any
property under sub-section
(3) of section 26 holding such property to be a benami property, the
Adjudicating Authority shall, after giving an opportunity of being heard to the person concerned, make an
order confiscating the property held to be a benami property:
1. Ins. by Act 23 of 2019, s. 175 (w.e.f. 1-9-2019).
2. Ins. by Act 13 of 2021, s. 157 (w.e.f. 1-7-2021).
12
Provided that where an appeal has been filed against the order of the Adjudicating Authority, the
confiscation of property shall be made subject to the order passed by the Appellate Tribunal under
section 46:
Provided further that the confiscation of the property shall be made in accordance with such
procedure as may be prescribed.
(2) Nothing in sub-section
(1) shall apply to a property held or acquired by a person from the
benamidar for adequate consideration, prior to the issue of notice under sub-section
(1) of section 24
without his having knowledge of the benami transaction.
(3) Where an order of confiscation has been made under sub-section
(1), all the rights and title in such
property shall vest absolutely in the Central Government free of all encumbrances and no compensation
shall be payable in respect of such confiscation.
(4) Any right of any third person created in such property with a view to defeat the purposes of this
Act shall be null and void.
(5) Where no order of confiscation is made upon the proceedings under this Act attaining finality, no
claim shall lie against the Government.
28. Management of properties confiscated.—
(1) The Administrator shall have the power to receive
and manage the property, in relation to which an order of confiscation under sub-section
(1) of section 27
has been made, in such manner and subject to such conditions, as may be prescribed.
(2) The Central Government may, by order published in the Official Gazette, notify as many of its
officers as it thinks fit, to perform the functions of Administrators.
(3) The Administrator shall also take such measures, as the Central Government may direct, to
dispose of the property which is vested in the Central Government under sub-section
(3) of section 27, in
such manner and subject to such conditions as may be prescribed.
29. Possession of the property.—
(1) Where an order of confiscation in respect of a property under
sub-section
(1) of section 27, has been made, the Administrator shall proceed to take the possession of the
property.
(2) The Administrator shall,—
(a) by notice in writing, order within seven days of the date of the service of notice to any person,
who may be in possession of the benami property, to surrender or deliver possession thereof to the
Administrator or any other person duly authorised in writing by him in this behalf;
(b) in the event of non-compliance of the order referred to in clause
(a), or if in his opinion,
taking over of immediate possession is warranted, for the purpose of forcibly taking over possession,
requisition the service of any police officer to assist him and it shall be the duty of the officer to
comply with the requisition.
CHAPTER V
APPELLATE TRIBUNAL
30. Establishment of Appellate Tribunal.—The Central Government shall, by notification, establish
an Appellate Tribunal to hear appeals against the orders of 1[any authority] under this Act.
31. Composition etc., of Appellate Tribunal.—
(1) The Appellate Tribunal shall consist of a
Chairperson and at least two other Members of which one shall be a Judicial Member and other shall be an
Administrative Member.
(2) Subject to the provisions of this Act,—
(a) the jurisdiction of the Appellate Tribunal may be exercised by Benches thereof;
(b) a Bench may be constituted by the Chairperson with two Members as the Chairperson may
deem fit;
1. Subs. by Act 23 of 2019, s. 176, for “the Adjudicating Authority” (w.e.f. 1-9-2019).
13
(c) the Benches of the Appellate Tribunal shall ordinarily sit in the National Capital Territory of
Delhi and at such other places as the Central Government may, in consultation with the Chairperson,
by notification, specify;
(d) the Central Government shall, by notification, specify the areas in relation to which each
Bench of the Appellate Tribunal may exercise its jurisdiction.
(3)Notwithstanding anything contained in sub-section
(2), the Chairperson may transfer a Member
from one Bench to another Bench.
32. Qualifications for appointment of Chairperson and Members of Appellate Tribunal.—
(1) A
person shall not be qualified for appointment as Chairperson of the Appellate Tribunal unless he is a sitting
or retired Judge of a High Court, who has completed not less than five years’ of service.
(2) A person shall not be qualified for appointment as a Member unless he—
(a) in the case of a Judicial Member, has been a Member of the Indian Legal Service and has held
the post of Additional Secretary or equivalent post in that Service;
(b) in the case of an Administrative Member, has been a Member of the Indian Revenue Service
and has held the post of Chief Commissioner of Income tax or equivalent post in that Service.
(3) No sitting Judge of a High Court shall be appointed under this section except after consultation
with the Chief Justice of the High Court.
(4) The Chairperson or a Member holding a post as such in any other Tribunal, established under any
law for the time being in force, in addition to his being the Chairperson or a Member of that Tribunal,
may be appointed as the Chairperson or a Member, as the case may be, of the Appellate Tribunal under
this Act.
33. Terms and conditions of services of Chairperson and Members of Appellate Tribunal.—
(1)
The salary and allowances payable to, and the other terms and conditions of service of the Chairperson and
other Members shall be such as may be prescribed and shall not be varied to their disadvantage during
their tenure.
(2) Any vacancy caused to the office of the Chairperson or any other Member shall be filled up within
a period of three months from the date on which such vacancy occurs.
34. Term of office of Chairperson and Members.—The Chairperson and Members of the Appellate
Tribunal shall hold office for a term not exceeding five years from the date on which they enter upon their
office, or until they attain the age of sixty-five years, whichever is earlier and shall not be eligible for
reappointment.
35. Removal of Chairperson and Member from office
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