TMI Blog1990 (8) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... Nani Daman : 1,75,000 (d) 1/3rd interest in vessel M. V. Kamal Prasad bearing No. UMR. 794 : 8,300 After taking into consideration the explanations offered by the appellant from time to time and the evidence produced by him, the Competent Authority passed an order dated August 31, 1989, under sections 7(1) and 7(3) of the SAFEMA forfeiting only one property, i.e., "A big house bearing Nos. 11/90 to 11/99 at Nani Daman". The source of the other three properties was accepted to be satisfactorily explained. Aggrieved by the order of forfeiture, the appellant is before us challenging the Competent Authority's order on various grounds. Learned counsel for the appellant, Shri S. M. Trivedi, called in question the validity of the notice under section 6(1) on a number of grounds. Firstly, it is argued that it should be apparent from the notice under section 6(1) that the reasons for the belief that the property in question was the illegally acquired property of the appellant were in fact recorded in writing and that the reasons so recorded should have been communicated to the appellant as a part of the said notice and that as it has not been done in the present case, the notice i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occupied the building on behalf of the appellant. The non-performance of this statutory duty on the part of the Competent Authority vitiated the entire proceedings against the appellant. In our opinion, the contention is without merit. Section 6(2) reads : Section 6(2). Where a notice under sub-section (1) to any person specifies any property as being held on behalf of such person by any other person, a copy of the notice shall also be served upon such other person." It is clear from the text of the section reproduced above that where the notice under section 6(1) itself indicates that the property is being held by another person on behalf of the one to whom notice under section 6(1) is issued, then a copy of the notice shall be served on the other person as well. In the instant case, the notice under section 6(1) issued to the appellant does not indicate that any other person has been holding the property on behalf of the appellant. The question of issuing notices under section 6(2), therefore, did not arise. This apart, the occupants of the house are admittedly the appellant, his sons and grandsons. The sons and grandsons constitute the family of the appellant. The ownership ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a double-storeyed structure located in Andhiasheri, Nani Daman, bearing house numbers 11/90 to 11/99. Though a feeble attempt was made by learned counsel for the appellant to dispute the appellant's ownership of the entire building, he, however, conceded that the appellant was the owner of the disputed building. In the explanation furnished by the appellant by his letter dated February 12, 1988, in response to the notice under section 6(1), there was a tacit admission that he was the owner of the building. The following extract from page 3 of his letter would be relevant : "2. The property at Serial No. 3 (the property in dispute) is a residential building. . . . It was constructed by me in 1975 with cement obtained from Government quota. The family members being more, and ancestral house not sufficient to accommodate all family members, it was constructed from my own income" (para 3, sub-para 2). Daman Municipal Council, Daman, issued a certificate dated February 8, 1988, to the appellant certifying that the house bearing Nos. 11/90 to 11/99 stood in the name of the appellant. In subsequent letters addressed to the Competent Authority and also the affidavit executed in Marc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 years) 18,000 -------------- 95,000 -------------- But, even in respect of this estimate of Rs. 1,55,000, there is no valuation report submitted by the appellant. As against this, the Competent Authority relied upon the expert opinion of a Valuation Officer of the Income-tax Department who estimated the cost of construction at Rs. 1,68,800. The appellant who had ample opportunity given to him by the Competent Authority did not choose to question the correctness of the estimate. Before us, learned counsel for the appellant merely voiced the appellant's submission that the cost as estimated by the Valuation Officer was on the higher side. In the circumstances stated above and in view of there being no evidence to question the correctness of the estimate made by the Valuation Officer, we accept the cost of construction to be Rs. 1,68,800. The next question for consideration is as regards the person who financed the cost of construction of the building. The building is entirely owned by the appellant himself having been constructed by him in 1975-76. Ordinarily, it would be a reasonable presumption that the entire cost was met by him unless there is evidence to the contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anchhodhbhai Lallubhai --son aged 52 years 22,000 Premabhai Ranchhodhbhai --son of Ranchhodhbhai aged 32 years 18,000 Kishanbhai Ranchhodhbhai --son of Ranchhodhbhai aged 31 years 16,000 -------------- 95,000 -------------- Though the letter of August 18, 1989, referred to the contribution towards the cost of construction by others who were staying in the house, the "others" were none other than his own sons and grandsons. This was also evident from the valuation report of the Assistant Valuation Officer dated December 29, 1988, who inspected the building before the valuation was done. At item No. 7.3 of the report, he clearly stated thus : "The assessee (i.e., the appellant in appeal) has only one GF (meaning ground floor) and FF (meaning first floor) chawl rooms with No. 11/90 and 11/99 and the remaining blocks 11/91 to 11/98 are occupied by his other family members, i.e., sons and grandsons. The entire building is owned by the assessee, i.e., from house Nos. 11/90 to 11/99, and thus the entire building is valued." (parenthesis supplied) The position taken by the appellant by his letter dated August 18, 1989, was not consistent with that in the letter dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cost of construction. In the absence of evidence on such material items, what has been affirmed in the affidavits cannot be relied upon. For reasons stated above, we hold that the whole of the cost of construction of Rs. 1,68,000 was met by the appellant from his own sources and no part of it came from any of the five persons, i.e., three sons and two grandsons. The next question for consideration is as regards the extent of the savings of the appellant from his fishing business which could have been available for meeting the cost of construction of the building with house Nos. 11/90 to 11/99 at Nani Daman. The Competent Authority considered this question and came to the conclusion that whatever savings the appellant might have had from his fishing business over several years (after meeting the family expenses of his large family) were sufficient to acquire the other three properties specified in the schedule to the notice under section 6(1), namely : Rs. (i) 50% share in house bearing No. 11/100 and 11/101 at Andhiasheri, Nani Daman : 4,000 (ii) House property bearing No. 11/130 at Andhia sheri, Nani Daman : 4,000 (iii) 1/3rd interest in Vessel M. V. Kamal Pras ..... X X X X Extracts X X X X X X X X Extracts X X X X
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