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UNION OF INDIA, THROUGH COMPETENT AUTHORITY AND ADMINISTRATOR Versus ISMAIL MULLA FAZLE ABBAS

2016 (4) TMI 96 - GUJARAT HIGH COURT

Forfeiture of property under SAFEMA - Properties acquired illegally and non filing of income tax returns - Non production of evidence to prove his business activities so as to justify the income and purchasing of properties - Petitioner had issued show-cause notice under Section 6 of the SAFEMA calling upon the respondent to explain the source of income - Held that:- there is no substance on a ground that the petitioner has taken so many factual and legal grounds so as to make an attempt to prov .....

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pugned order by describing it as a non speaking order when it is pleaded that the Appellate Tribunal has neither considered the issue raised by the petitioner nor discussed the fact of the case. It is very much clear that the factual details are well discussed in such judgment and all issues are properly dealt with and answered by the Appellate Tribunal with reasonings and citations of relevant cases. Therefore, there is no substance in the petition when it is trying to misguide the judicial pro .....

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posed upon the person against whom the action is initiated by the competent authority.

Also the petitioner has tried to emphasize that the judgment in case of Fatima Mohammed Amin vs. Union of India [2003 (1) TMI 657 - SUPREME COURT] is not a good judgment and that the Hon'ble Supreme Court has not interpreted the judgment of Constitution Bench properly. If it is so, first of all it would be necessary for the petitioner to approach the Hon'ble Supreme Court to rectify its interpretati .....

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wo judgments is not proper, cannot be upheld.

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 to prefer petitions against such order, unless and until they get the Supreme Cou .....

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s competent authority and administrator under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (herein after referred to as SAFEMA ), whereas respondent though duly served, has remained absent. 2. I have heard learned advocate Mr. P. 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 resp .....

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he purchased the property and filed returns of the income tax for the previous year i.e. from 1965 onwards without producing any books of accounts. 3.3 Therefore, petitioner had issued show-cause notice under Section 6 of the SAFEMA calling upon the respondent to explain the source of income and to show cause that why such properties should not be forfeited under SAFEMA. 3.4 It is alleged that even after ample opportunities, respondent has not produced any evidence to prove his business activiti .....

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of forfeiture of all the properties found in the name of respondent and covered under show-cause notice, was passed on 25.06.1999 except for the ornaments. Such order was challenged by the respondent in Appeal being FPA No. 27 & 28/Bom/1999/447 before the Appellate Tribunal for the Forfeited Property at New Delhi which has, by its judgment and order dated 17.06.2009 quashed and set aside the show-cause notice and order of forfeiture of properties by allowing the appeal. 4. Such impugned orde .....

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ondent 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 having income and capacity to purchase some properties. 6. Whereas, it is contended by the respondent, before the competent authority that there are several decisions by the Honourable Supreme Court that relatives and associates can brought in su .....

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appellate authority has observed that the order of competent authority does not even prima facie show and disclose that the properties under reference were ever belonging to the detenue or were acquired out of the funds of the detenue. On the contrary, it is observed by the appellate authority, that there is cogent evidence on record to show that the properties have been independently acquired by the appellant himself out of his own money and that either they are purchased by virtue of register .....

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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 h .....

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. 7.1 The appellate authority has also considered that there was enough documentary evidence to prove the purchase of properties and developments, which are reflected in income tax returns and in account books and, thereby, competent authority has erred in observing that genuineness of the source of initial investment is not proved. The appellate authority has recorded the details of properties and its source in detail which is not required to be reproduced herein, since I do not find any illega .....

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evious 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 e .....

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l and legal grounds so as to make an attempt to prove that show-cause notice was valid and proper. However, I do not find any substance in any such ground for the simple reason that the law is well settled as interpreted and decided by the Honourable Supreme Court. The petitioner has also tried to compare several other judgments and Special Act like TADA and NDPS Act to plead and to induce by this Court to believe that it would be difficult to get direct evidence to control grave offence and, th .....

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lready recorded herein above and perusal of impugned judgment, makes it very much clear that the factual details are well discussed in such judgment and all issues are properly dealt with and answered by the Appellate Tribunal with reasonings 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 t .....

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are in ground No. (h) with several sub paras from (i) and again in ground (k) wherein petitioner has practically admitted that there is no substance in the present petition. But the most interesting pleadings is in ground (i) on page 21 of the petition, which reads as under: (i) The judgment of the Hon ble Superme Court passed in the case of Fatima Mohd. Amin, reported in (2003) 7 SCC 436 and in the case of Abdulla, as reported in 2006 (SC-4) GJX- 1080-SC, laying down the condition of mentionin .....

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