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TMI Blog2016 (4) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... Y. Divyeshwar at length and perused the relevant record, so also law applicable to such cases. 3. The brief facts arising from the record so as to drag the issue till this Court is to the effect that; 3.1 Brother of the present respondent was detained under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (herein after referred to as "the COFEPOSA Act") by the petitioner authority on or about 28.04.1975. 3.2 It is the case of the petitioner that during investigation carried out by them to find out the properties acquired by the detenue by illegal means it was found that respondent has acquired some properties illegally and did not file any income tax returns till 1969 when he purchased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.06.2009 by the appellate Tribunal is a consolidated order in two appeals being FPA Nos. 27 and 28 of 1999. Since similar order of forfeiture was passed against two brothers of detenue namely Abbas Mulla Fazle Abbas and Ismail Mulla Fazle Abbas. It is also evident from record that the Chairman of such appellate authority is generally a retired Judge of High Court with one member from administrative or revenue side. 5. On perusal of such impugned judgment, it becomes clear that the respondent was working as angadia and, therefore, competent authority has believed that when no books of accounts have been kept, there is no basis to support the contentions of the respondent that he was carrying out business as angadia and, thereby he was havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce were acquired legally and they have been duly reflected in the books of accounts of the appellant as well as in the income tax returns and wealth tax returns filed by the appellant but the competent authority has totally forgotten to deal with such documents and erred in observing that income tax returns were filed with a view to cover up the sources which have come from illegal earnings of the detenue, though there is no evidence that they were purchased by illegal earnings of the detenue. The most convincing reason assigned by the Appellate Tribunal is to the effect that in the relevant year for which respondent has paid income tax are between 1965 to 1969, when SAFEMA and COFEPOSA were not in existence and income tax returns have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch previous decisions, the appellate authority has come to the conclusion that the show cause notice issued by the petitioner does not disclose nexus between the detenue and the respondent, so also his properties and, therefore, held that initiation of proceedings against respondent is bad and illegal. 7.4 The appellate authority has thereafter given detailed reasoning for its conclusion as above and concluded that the show cause notice is silent on providing any connection or link with the illegal earnings of the detenue apart from merely stated by the competent authority that "reason to believe that the properties described in the Schedule enclosed hereto which are held by you are illegally acquired properties within the meaning of Claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs and citations of relevant cases. Therefore, there is no substance in the petition when it is trying to misguide the judicial proceedings. 8.2 Thereupon petitioner has disclosed relevant provisions of different Acts and few judgments and tried to emphasize that once the facts specified under the particular sections are established, then there may be statutory presumption of guilt which follows the punishment unless contrary is proved by the affected person. Thereby an attempt was made to submit that nexus is implicit and is not required to be established in such proceedings under the special act, wherein reverse burden is imposed upon the person against whom the action is initiated by the competent authority. However, the most interesti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in case of Kesar Devi vs. Union of India reported in 2003 (7) SCC 427 is also confirming the same view taken in the case of Fatima (supra) and, therefore, when two judgments of the Honourable Supreme Court are conclusive in its findings, an attempt of the petitioner herein to allege that the interpretation of previous judgment in these two judgments is not proper, cannot be upheld. 10. It cannot be ignored that this petition is filed under Article 227 of the Constitution of India, where the Court has to verify the limited issue that whether proper care has been taken by the authority in passing impugned order or not. Thereby only because petitioner is not comfortable with some of the judgments of the Honourable Supreme Court then they have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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