TMI Blog2001 (2) TMI 977X X X X Extracts X X X X X X X X Extracts X X X X ..... ). The order of detention was passed on 19-12-1974. Reason for the detention was that on 23-10-1974 shop of Chiranji Lal was raided by the Customs authorities and during such raid certain contraband articles were found. Articles were cigarette lighters, pen knife, spray lotion, transistor, ladies sharees, T-shirts, which were seized, and a penalty of Rs. 1000 was imposed. But the penalty order was revoked by the Collector of Customs (Appeals) taking into account the low value of the properties seized. Penalty imposed was directed to be refunded and confiscated goods were released. Since the detention of Chiranji Lal was under section 3(1) of COFEPOSA he was held to be covered under section 2(2)( b ) of the Act, and the petitioner being his eldest son under section 2(2)( c ). Petitioner is employed in State Bank of India, Dehradun from 1972. He purchased a plot of land on 6-1-1976 by registered sale deed in Dehradun for a consideration of Rs. 12,000 and a house was constructed thereon. According to the petitioner, ground floor was constructed during the period 1976-78 at a cost of Rs. 50,000 and the first floor was constructed during 1981-82 at a cost of Rs. 80,000 approximately. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s acquired it illegally. It is further submitted that for applying the rule of evidence as contained under section 8 casting a burden of proof on the person affected there must be some link or nexus between the holding of the property or assets by the person proceeded against and illegal activity of detenue/convict. This link or nexus has to be established by the authorities. 4. The learned counsel for the respondent, on the other hand, submitted that the findings, if any, recorded by the income-tax authority have no binding force. At the most they may have some persuasive value. Nevertheless, the authorities under the Act have power and jurisdiction to make independent examination of the materials and take their own decision. Factual findings have been recorded by the competent authority as well as the Tribunal (by its majority view). It has not been shown as to how these factual conclusions are erroneous. While dealing with application under article 226 or 227 of the Constitution of India, 1950 (Constitution), it is submitted the Court does not sit as a court of appeal and there is no scope for interference with the findings of fact, unless they are perverse. It is submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h person had been or is a member, partner or director of such association, body, partnership firm or private company; ( v )any person who had been or is managing the affairs, or keeping the accounts, of an association of persons, body of individuals, partnership firm or private company referred to in clause ( iii ); ( vi )the trustee of any trust, where, ( a )the trust has been created by such person; or ( b )the value of the assets contributed by such person (including the value of the assets, if any, contributed by him earlier) to the trust amounts, on the date on which the contribution is made, to not less than twenty per cent of the value of the assets of the trust on that date; ( vii )where the competent authority, for reasons to be recorded in writing, considers that any properties of such person are held on his behalf by any other person, such other person. 3. Definitions. (1) In this Act, unless the context otherwise requires, ( a )****** ( b ) competent authority means an officer of the Central Government authorised by it under sub-section (1) of section 5 to perform the functions of a competent authority under this Act ; ( c ) illegally acquired ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny illegally acquired property in contravention of the provisions of sub-section (1), such property shall be liable to be forfeited to the Central Government in accordance with the provisions of this Act. 5. Competent authority. (1) The Central Government may, by order published in the Official Gazette, authorises as many officers of the Central Government (not below the rank of a Joint Secretary to the Government), as it thinks fit, to perform the functions of the competent authority under this Act. (2) The competent authorities shall perform their functions in respect of such persons or classes of persons as the Central Government may, by order, direct. 6. Notice of forfeiture. (1) If, having regard to the value of the properties held by any person to whom this act applies, either by himself or through any other person on his behalf, his known sources of income, earnings or assets, and any other information or material available to it as a result of action taken under section 18 or otherwise, the competent authority has reasons to believe (the reasons for such belief to be recorded in writing) that all or any of such properties are illegally acquired properties, it may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ambit of the Act. The idea is to forfeit the illegally acquired property irrespective of the fact that such properties are held by or kept in the name or screened in the name of relative or associate as defined in two Explanations of section 2(2). The idea is not to forfeit the independent property of such a relative or associate which they may have acquired illegally but to reach the property of the detenue/convict or the properties traceable to him, wherever they are covered by the transaction with respect to those properties. The burden of establishing that the properties mentioned in the show-cause notice issued under section 6 and which are held on the date by a relative or an associate of a detenue/convict are not the illegally acquired property of detenue/convict lies on such relative or associate. He must establish that the said property has not been acquired with monies or assets provided by the detenue/convict or that, in fact, did not or do not belong to such detenue/convict. 7. In the background of what has been stated above, the factual scenario has to be viewed. The competent authority examined the petitioner s stand about sources of investment. It was held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( c )Bonus receive Rs. 3,300 ( d )Loans ( i )Lalit Kumar 5000 ( ii )Manmohan Kumar 4000 ( iii )Sharda Kumar 4000 ( iv )Rita Sharma 2000 ( v )Bhagwan Devi 2000 ( vi )Suresh Kumar 4000 In the second phase the first floor of the house was constructed during 1981-82 for Rs. 80,000. The source of which was explained as follows: ( ii )Loan from Rakesh Kumar brother37,780 ( iii )Loan from Rajesh Kumar brother12,500 ( iv )Bonus2,250 ( v )Salary income12,500 80,000( sic ) The competent authority analysed the plea as regards each of the source claimed and found it to be untenable. In appeal also, the Tribunal examined the conclusions arrived at by the competent authority and found the same to be in order. 8. So far as the plea regarding acceptance by income-tax authorities is concerned, it was considered by the Tribunal in the background of section 21 of the Act. It was held that the said provision clearly laid down that the finding of any officer under any other law shall not be conclusive for any pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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