Prohibition of Benami Property Transactions Act, 1988

Section 38: Member to Act as Chairperson in Certain Circumstances

Section 38 of the Prohibition of Benami Property Transactions Act, 1988 provides for continuity in the office of the Chairperson of the Appellate Tribunal. It authorises the senior-most Member to act as, or discharge the functions of, the Chairperson when the office is vacant or the Chairperson is temporarily unable to perform the duties of the office.

Current legal reference: The Benami Transactions (Prohibition) Amendment Act, 2016 substantially amended the 1988 law and renamed it the Prohibition of Benami Property Transactions Act, 1988. Section 38 was inserted by the 2016 amendment with effect from 1 November 2016.

What does Section 38 provide?

The provision addresses two separate situations. First, it covers an actual vacancy in the office of Chairperson. Second, it covers a temporary inability of the serving Chairperson to discharge functions because of absence, illness or another cause.

Text of Section 38

38. Member to act as Chairperson in certain circumstances.

(1) In the event of the occurrence of any vacancy in the office of the Chairperson of the Appellate Tribunal by reason of his death, resignation or otherwise, the senior-most Member shall act as the Chairperson until the date on which a new Chairperson, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office.

(2) When the Chairperson is unable to discharge his functions owing to absence, illness or any other cause, the senior-most Member shall discharge the functions of the Chairperson until the date on which the Chairperson resumes his duties.

Meaning and legal effect of Section 38

1. Vacancy in the office of Chairperson

Under Section 38(1), if the office of Chairperson becomes vacant because of death, resignation or any other reason, the senior-most Member acts as Chairperson. This arrangement continues until the newly appointed Chairperson enters office.

2. Temporary inability of the Chairperson

Section 38(2) applies where there is no permanent vacancy, but the Chairperson is unable to perform the functions of the office because of absence, illness or another cause. In that situation, the senior-most Member discharges the Chairperson's functions until the Chairperson resumes duties.

3. Purpose of the provision

The section is a continuity provision. It prevents the work of the Appellate Tribunal from being interrupted merely because the Chairperson's office is vacant or the Chairperson is temporarily unavailable.

Key points at a glance

The provision concerns the Chairperson of the Appellate Tribunal under the PBPT Act.
The senior-most Member is the statutory substitute during the relevant period.
A vacancy may arise by death, resignation or otherwise.
A temporary inability may arise from absence, illness or another cause.
The acting arrangement ends when a new Chairperson enters office or the existing Chairperson resumes duties, as applicable.

Official legal resources

For the latest consolidated statutory text, amendments and institutional information, refer to the official Government of India sources below.

India Code - PBPT Act, 1988 Income Tax Department Appellate Tribunal

This page is intended for general legal information. For litigation, compliance or filing, verify the current statutory text, notifications and applicable judicial decisions from official sources.