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Section 43 Benami Act: Decision to be by Majority

Section 43 of the Prohibition of Benami Property Transactions Act, 1988 provides the procedure to be followed when the two Members of a Bench of the Appellate Tribunal differ in opinion on one or more points. The section ensures that the disputed point is ultimately decided according to the opinion of the majority of the Members who hear that point.

In brief: If a two-member Bench disagrees, the differing point or points are stated and referred to the Chairperson. The Chairperson may hear the issue personally or refer it to one or more other Members. The issue is then decided according to the majority opinion of all Members who heard it, including the Members of the original Bench.

Section 43 - Decision to be by Majority

If the Members of a Bench consisting of two Members differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairperson of the Appellate Tribunal who shall either hear the point or points himself or refer the case for hearing on the point or points by one or more of the other Members and the point or points shall be decided according to the opinion of the majority of the Members of the Appellate Tribunal who have heard the case, including those who first heard it.

Meaning and Scope of Section 43

Section 43 is a procedural provision dealing with a split opinion in a two-member Bench of the Appellate Tribunal. It does not determine whether a transaction is benami. Instead, it explains how the Tribunal must proceed when the two Members hearing a matter cannot agree on a particular point.

The mechanism prevents a proceeding from remaining unresolved merely because the original two Members have reached different conclusions. The disputed point is identified precisely and is then placed before the Chairperson or one or more other Members so that a majority view can emerge.

How a Difference of Opinion is Resolved

The provision applies when a Bench consists of two Members.
The Members must differ in opinion on a point or points arising in the matter.
The differing point or points must be expressly stated.
The matter is referred to the Chairperson of the Appellate Tribunal.
The Chairperson may hear the point personally or refer it to one or more other Members.
The disputed point is decided according to the majority opinion of all Members who heard it.
The Members who originally heard the case are included when the majority is calculated.

What is the Appellate Tribunal?

Under Section 2 of the Act, the expression "Appellate Tribunal" refers to the Appellate Tribunal established under Section 30. Section 43 operates within that appellate framework and specifically addresses disagreement between Members of a two-member Bench.

Why Section 43 is Important

The provision promotes continuity and finality in appellate adjudication. A difference of opinion does not automatically invalidate the hearing or require the entire appeal to begin again. Instead, only the point or points of disagreement are referred for further consideration and the majority view governs the decision on those points.

Current statutory title: The governing Central Act is titled the "Prohibition of Benami Property Transactions Act, 1988". The Benami Transactions (Prohibition) Amendment Act, 2016 substantially amended the 1988 law and the amended provisions, including the Appellate Tribunal framework containing Section 43, took effect from 1 November 2016.

Related Provisions

Section 43 should be read with the neighbouring provisions governing the functioning of the Appellate Tribunal, including Section 41 on distribution of business among Benches and Section 42 on transfer of cases by the Chairperson. The subsequent provisions deal with the status of Tribunal Members, exclusion of civil court jurisdiction, appeals and other procedural matters.

Official Legal Source

For the consolidated and current text of the Central Act, refer to the Prohibition of Benami Property Transactions Act, 1988 on India Code.

This page is intended as a general legal information resource. For a particular dispute, appeal or proceeding, the applicable statutory text, rules, notifications and judicial decisions should be checked as on the relevant date.