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TMI Blog2013 (8) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... sarily involves violation of tax laws - the idea of defining the word “relative” in detail was to reach his properties in whosoever’s name they were kept or by whosever they were held - It had been further held that the idea was to forfeit the illegally acquired properties of the convict/detenue irrespective of the fact that such properties were held by or kept in the name of or screened in the name of any relative or associate as defined in the said Explanations of Section2 of the Act - The Authority had rightly appreciated the provisions of the SAFEMA and the definition of `relative’ and, therefore, had rightly held that they had miserably failed in proving that the property in dispute was purchased by legal means - The burden to prove the same lies upon the person affected to prove that the property which was under the process of forfeiture was purchased by legal means either by himself or his relatives - Attorney General of India, etc. etc vs. Amratlal Prajivandas and Ors. [1994 (5) TMI 235 - SUPREME COURT] – Decided against Petitioner. - Special Civil Application No. 1404 of 2013 - - - Dated:- 1-7-2013 - A. J. Desai,JJ. For the Petitioner : Mr B. J. Raichandani, Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the name of the present petitioner. A short reply was filed on behalf of the husband of the present petitioner along with the affidavit of the present petitioner dated 7.5.2008, by which the present petitioner tried to explain that an amount of Rs.1,50,000/was received by her from her brother Mahesh Ramanlal Thakkar in the year 1998, and from the said gift, she had purchased the immovable property. 2.2 The husband of the petitioner was personally heard by the Competent Authority and adjournments were granted to the husband of the petitioner for producing documents showing the acquisition of the said immovable property out of legal source of income. The Authority did grant sufficient time to the husband of the present petitioner. After hearing the husband of the petitioner in person and after considering the documents produced by the husband of the petitioner and by herself, the Authority came to the conclusion that either the husband of the petitioner or the present petitioner could satisfy that the immovable property was purchased from their legal income and, therefore, passed an order declaring that the said immovable property is liable to be forfeited under Section 4(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upport of his submission, by relying on a decision of the Hon ble Apex Court in the case of P.B. Abdulla vs. Competent Authority, as reported at 2007 (207) ELT 163 (SC) he submitted that the Hon ble Apex Court has been pleased to quash such an illegal notice and has held that since the order of confiscation is a very stringent order and the provisions for confiscation has to be construed strictly, and the statute must be strictly complied with, otherwise the order becomes illegal. He submitted that in the present case also, the provisions of SAFEMA are not strictly complied with by the Authority and therefore the Notice itself was required to be quashed by the Tribunal which has not been done in the present case. 3.2 In support of his second submission with regard to sufficiency of evidence/proof about purchasing of the disputed property, he submitted that the petitioner, who is wife of the detenue, had produced documentary evidence in nature of an Affidavit of her brother as well as the bank account of her brother to establish that she had received an amount of Rs.1,50,000/from her brother and from the said amount she had purchased the disputed property. He further submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it was found to contain a black coloured pouch. On examination of the said pouch in the presence of the husband of the petitioner and independent witnesses, assorted foreign currency notes, consisting of US $410/, 1,260 Euros, 1808 Durham and 2,202 Saudi Riyals were recovered. Thus, in all, assorted foreign currency notes consisting of US $47,010/, 16,660/Euros, 31,308 Dirham and 2,520/Saudi Riyals, equivalent to Rs.33,06,667.60 were recovered from the shoes and the paper carry bag of the husband of the petitioner, which were seized by the Competent Authority. He further submitted that all the details were provided in the said reasons for issuance of notice Notice under Section6 of the Act to the petitioner as well as her husband Jayendra Chandulal Thakkar @ Jitendra Chimanlal Thakkar. Having found his activities, the Authority thought it fit to detain the husband of the petitioner Jayendra Chandulal Thakkar @ Jitendra Chimanlal Thakkar under the provisions of the COFEPOSA, 1974 and accordingly the detention order was passed. 4.1 Mr.Desai, learned Counsel appearing for the respondents, further submitted that during the investigation, it was found that the disputed immovable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Attorney General of India, etc etc vs. Amratlal Prajivandas and Ors., as reported at AIR 1994 SC 2179. By relying upon the said decision of the Hon ble Apex Court delivered by Nine Hon ble Judges, he submitted that the scheme of the SAFEMA to forfeit the illegally acquired properties of a detenue irrespective of the fact that such properties are held by or kept in the name of or screened in the name of any relative or associate as defined in the said two Explanations which is illegally acquired by the detenue or his relatives. 5 I have heard learned Advocates appearing for the respective parties and perused the Order dated 14.10.2008 passed by the Competent Authority, SAFEMA, Mumbai and the Order dated 31.5.2011 passed in Appeal No.FPA/39/Bom/2008 as well as the Order dated 26.9.2011 passed in Review Application No.MP17/ Bom/2011 by the learned Appellate Tribunal. 6 Dealing with the first contention raised by the petitioner is concerned, it emerges from the record that the Competent Authority, SAFEMA, Mumbai, who had issued the Notice dated 23.5.2007, had annexed the reasons recorded by the Authority for issuance of Notice under Section6 of the Act with the Notice itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated before the Authority that he was not in a position to collect the documents showing the legal sources of income of his brotherinlaw because area where he was staying was flooded with rain water and the entire record had been destroyed and, therefore, requested that the case may be disposed of on the basis of submissions already made by him. It is an undisputed fact that neither the petitioner, her husband or her brother are tax payers nor having the permanent account number which a person is required to get under the provisions of the Income Tax Act. In my opinion, in absence of sufficient material, the Authority has rightly appreciated the provisions of the SAFEMA and the definition of `relative and, therefore, has rightly held that the petitioner or her husband has miserably failed in proving that the property in dispute was purchased by legal means. The burden to prove the same lies upon the person affected to prove that the property which is under the process of forfeiture, was purchased by legal means either by himself or his relatives. 9 Neither the petitioner nor her brother had appeared before the Competent Authority to show and establish that the property was pu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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