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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 ..... 39/ Bom/2008 by the Appellate Tribunal For Forfeited Property, New Delhi, by which the Order dated 14.10.2008 passed by the Competent Authority was confirmed and the Appeal filed by the present petitioner was dismissed. The petitioner has also challenged the Order dated 26.9.2012 passed by the Appellate Tribunal rejecting the Review Application No.MP17/ Bom/2011 (Recall) filed by the petitioner for recalling it's own Order dated 31.5.2011. 2 Brief facts of the case emerges from the record are as under:- 2.1 That one Jayendra Chandulal Thakkar @ Jitendra Chimanlal Thakkar, who is husband of the present petitioner, was ordered to be detained by Order dated 10.07.2006 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974 (hereinafter referred to as "the COFEPOSA" for short) following seizure of foreign currency worth Rs.33,06,667.50ps. The husband of the petitioner was found with different types of foreign currencies in the nature of US$, Euros, Dirham and Saudi Riyals. During his detention, the Authority established under the SAFEMA, after recording reasons in detail, issued a Notice dated 23.5.2007 under Section 6(1) of the SAFE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The learned Tribunal found that there was only a typographical error in mentioning the amount of Rs.1,00,000/as it was mentioned as Rs.10 lacs in Order dated 31.5.2011 and, ultimately, corrected the same. However, the Review Application was dismissed having found no substance in the matter. Hence, the present petition. 3 Mr. B.J. Raichandani, learned Advocate, appearing for Mr. Girish M. Das, learned Advocate for the petitioner, has raised two main contentions, namely, legality of Notice dated 23.5.2007 issued by the Competent Authority under Section 6(1) of the SAFEMA and secondly that though the petitioner had produced sufficient material before the Authority to establish that the property acquired by the petitioner was a legal one, the Competent Authority as well as the Tribunal have erred in not accepting the same as sufficient evidence before forfeiting the disputed property to the Central Government free from all encumbrances. 3.1 In support of his fist contention, Mr. Raichandani submitted that the Notice dated 23.5.2007 is not a legal notice in view of the provisions of the SAFEMA and more particularly Section6 of the said Act. The Authority while issuing the said Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A. 3.3 By relying upon these two decisions, he has prayed to quash and set aside the Order dated 14.10.2008 passed by the Competent Authority, SAFEMA/NDPSA, Mumbai and the Order dated 31.5.2011 passed by the Appellate Tribunal. 4 On the other hand, Mr. Anshin H. Desai, learned Central Government Counsel, appearing for the respondents, has submitted that the Competent Authority as well as the Tribunal, after perusing the reply submitted either by the petitioner or her husband and the documentary evidence produced by the parties, had rightly come to the conclusion that the property was illegally acquired by the wife of the detenue and, therefore, had rightly confiscated the same. Taking me through the Notice dated 23.5.2007, he submitted that after perusing the material on record, the Competent Authority thought it fit to issue Notice under Section6 of the Act and all the reasons recorded by the Competent Authority were also supplied along with the said Notice and, therefore, the contention raised by the learned Advocate for the petitioner about the illegality with the notice is baseless and required to be discarded. He further submitted that the husband of the petitioner, who was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner from her legally earned income. Both of them have miserably failed to show the source of income of the brother of the petitioner who had deposited an amount of Rs.1,50,000/in the Bank Account of the petitioner. Neither the petitioner nor her husband examined the brother of the petitioner to establish that the brother of the petitioner had earned the money from his independent profession/business and had paid the said amount to the petitioner out of love and affection towards her. He further submitted that neither the petitioner nor her brother nor her husband had produced any documentary evidence like the Income Tax Returns submitted by any of them under the provisions of the Income Tax Act to show the source of income. He further submitted that none of the relatives of the petitioner or the petitioner are tax payers. He therefore submitted that both the Authorities have rightly held that the petitioner and/or her relatives have miserably failed in establishing that the property was legally acquired and as per the provisions of Section8 of the SAFEMA, the burden lies on the person to establish that the property was acquired by legally earned income and in the present case t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uance of notice were attached with the Notice, the Authority has not committed any breach of provisions of SAFEMA while issuing the notice as defined under Section 6 of the Act. The facts in the case of P.P. Abdulla vs. Competent Authority (supra) and in the present case are different and, therefore, the said decision relied on by learned Advocate for the petitioner would not be applicable in the present case. 8 Now dealing with the second contention i.e. sufficiency of proof/evidence as per Section8 of the Act, it appears from the record that the husband of the present petitioner, who remained present before the Authority for personal hearing, sought adjournments for collecting the sufficient evidence and to produce the same before the Authority to establish that the property was purchased by his wife by legal means. However, except, the Affidavit of his brotherinlaw extract of Bank Account, he did not produce any documents showing that the amount was paid or any giftdeed, etc. Noticed persons had miserably failed to produce any documentary evidence with regard to the source of income of his brotherinlaw who had paid an amount of Rs.1,50,000/to the present petitioner. Again, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing for the petitioner as well as her husband and after examining the reasons assigned by the Authority and documentary evidence produced by the present petitioner, the Tribunal thought it fit not to interfere with the order passed by the Authority and accordingly dismissed the appeal filed by the petitioner. 11 As far as the decision in the case of V.P. Ranganathan vs. Appellate Tribunal (supra) relied by the learned Advocate for the petitioner would not be applicable in the facts of the present case since in the said case, Wealth Tax Returns for number of years were produced before the Authority and, therefore, the Court had, ultimately, found that the property owned by a relative was from independent income and there was no nexus between illegal earnings of the detenue and the property held by close relative. 12 As far as the sufficiency of evidence with regard to legally earned income is concerned, the Hon'ble Apex Court in the case of Attorney General of India (supra) in paragraph 42 and 43 has held that the persons engaged in smuggling and foreign exchange manipulations do not keep regular and proper accounts with respect to such activity or its income or of the asset ..... X X X X Extracts X X X X X X X X Extracts X X X X
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