9911796707
TMI Blog1993 (3) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... revoked or withdrawn by the competent authority nor has been set aside by a competent court, can be proceeded against under SAFEMA. There is also no reason to presume that the Parliament intended to extend any immunity to smugglers and manipulators of foreign exchange who are proceeded against under enactments other than those mentioned in Sections 11 and 16 of the Voluntary Disclosure Act. So far as the argument that the authorities under the Act have not properly considered the explanation offered by the appellants and the material produced by them, we must say that we are unable to agree with the same. Both the competent authority and the Appellate Authority have considered the same and held against the appellants. We see no reason to interfere with the concurrent findings in this appeal under Article 136 of the Constitution. Appeal dismissed. - 1391-1393 of 1979 - - - Dated:- 31-3-1993 - B.P. Jeevan Reddy and N. Venkatachala, JJ. [Judgment per : B.P. Jeevan Reddy, J.] - With a view to provide for the forfeiture of illegally acquired properties of smugglers and foreign exchange manipulators, the Parliament enacted, in the .year 1976, The Smugglers and Foreign Excha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The object with which the Act was made is, without a doubt, highly laudable. The provisions of the Act apply to persons specified in sub-section (2) of Section 2. Persons who have been convicted under the Sea Customs Act, 1878/Customs Act, 1962, persons convicted under the Foreign Exchange Regulation Act, 1947/Foreign Exchange Regulation Act, 1973 constitute the first category. The second category is of the persons who have been detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1947 (COFEPOSA), provided the said order has not been revoked or withdrawn by the Competent Authority before the completion of the period prescribed or set aside by a competent Court. The third category is of the relatives and associates of persons falling under categories 1 and 2. The fourth category is of the transferees from the persons falling in category 1 and 2. Clause (c) in Section 3 defines the expression "illegally acquired property". It means, in short, any property acquired, by a person, whether before or after the commencement of the Act from out of any income or assets derived or at tributable to the prohibited activity. Section 4 declares that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons relevant for our purpose and must be noticed. Section 11 states, "notwithstanding anything contained in any other law for the time being in force, nothing contained in any declaration made under sub-section (1) of Section 3 shall be admissible in evidence against the declarant for the purpose of any proceeding relating to imposition of penalty or for the purposes of prosecution under any of the Acts mentioned in sub-section (1) of Section 8 of the Wealth-tax Act." The Acts mentioned in sub-section (1) of Section 8 are the Indian Income-tax Act, 1922, Excess Profits Tax Act, 1940, Business Profits Tax Act, 1947, Super Profits Tax Act, 1963 and the Companies (Profits) Sur-tax Act, 1964. Section 11 thus confers a limited immunity from imposition of any penalty or prosecution under any of the said Acts and the Wealth Tax Act. It does not confer an absolute or universal immunity. Coming to Section 16 it too confers a limited immunity of a different kind. It says that if the voluntary disclosed income, wealth or assets is represented by gold, then the said gold shall not be liable to confiscation either under the Customs Act or Gold (Control) Act nor shall such person be liable to im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It does not apply to persons who have been detained under COFEPOSA after the commencement of SAFEMA. This is evident from the use of the words "every person in respect of whom an order pf detention has been made ........" in clause (b) of sub-section (2) of Section 2. 2. In these cases it is not proved that the properties forfeited are "illegally acquired properties" within the meaning of clause (c) of sub-section (1) of Section 3 - in particular of sub-clause (iii) thereof. The competent authority and the Appellate Authority erred in not giving effect to the immunity conferred by the Voluntary Disclosure Act and in calling upon the appellants to explain the source of the income declared under the Voluntary Disclosure Act. 3. The explanations offered by the appellants have been rejected by the authorities under the Act without a proper discussion. The findings recorded by them are perverse and are not supported by any evidence. The procedure prescribed by the Act has not also been followed scrupulously which too vitiates the orders of forfeiture. We are unable to agree with any of the above submissions. There is nothing in the Act to indicate either directly or by necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The immunity cannot be extended beyond the confines specified by the said provisions. There is also no reason to presume that the Parliament intended to extend any immunity to smugglers and manipulators of foreign exchange who are proceeded against under enactments other than those mentioned in Sections 11 and 16 of the Voluntary Disclosure Act. So far as the argument that the authorities under the Act have not properly considered the explanation offered by the appellants and the material produced by them, we must say that we are unable to agree with the same. Both the competent authority and the Appellate Authority have considered the same and held against the appellants. We see no reason to interfere with the concurrent findings in this appeal under Article 136 of the Constitution. We are equally unable to agree with the learned counsel for the appellants that the findings recorded by the authorities are either perverse or that they are based on no evidence. That the authorities acted with due care and caution is evident from the fact that with respect to one of the immovable properties the authorities were of the opinion that the failure to explain pertains only to part of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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