TMI Blog2015 (4) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent. JUDGMENT [Judgment]. - MP-36/BOM/2009 (SP) FPA-10/BOM/2009 : FPA-10/BOM/2009 is an appeal filed by the appellants Dayalbhai Kikabhai Ahir and others against the order No. 02/MUM/AHD/SAFEMA/2009 dated 12th March, 2009 passed by the Competent Authority, Mumbai under Section 7 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred as the SAFEMA or the Act). 2. Briefly stated the facts of the case as detailed in the Impugned Order as well as the appeal memo indicate that COFEPOSA detention order dated 18th November, 2006 was issued against Shri Dayalbhai Kikabhai Ahir (hereinafter referred to as the AP-1) by the Government of Maharashtra under Section 3(1) of the COFEPOSA Act, 1974. The said order of detention was neither revoked by the Government nor quashed/set aside by any competent Court having jurisdiction and thus AP-1 was held to be a person covered under Section 2(2)(b) of the SAFEMA. His wife Smt. Vinuben Dayalbhai Ahir (referred as AP-2), his two brothers, Shri Maganbhai Kikabhai Ahir (referred as AP-3) and Shri Govindabhai Kikabhai Ahir (referred as AP-4), his mother Smt. Naniben Kikabhai Ahir (r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank of Baroda, Kudiyana Branch, Tal-Olpad, Surat AP-1 (r) Deposit of ₹ 14,407/- in SB A/c No. 4732 and FDR of ₹ 22,633/- in Bank of Baroda, Kudiyana Branch, Tal-Olpad, Surat AP-8 4. In respect of agricultural land at survey No. 107-B at village Kudiyana Tal-Olpad, Distt. Surat admeasuring 02833 sq. metres he reserved his order and directed the investigating officer to conduct further inquiries so as to ascertain the correct survey number and the ownership of the land. He also directed the Commissioner of Customs Airport, Investigating Agency to conduct necessary inquiry as to how the amount of Indian currency of ₹ 10,92,000/- seized from AP-1 was released. 5. The appellants have come in an appeal before us against the order of forfeiture passed by the Competent Authority. In the appeal it has been stated that AP-1 was intercepted at Chhatrapati Shivaji International Airport, Mumbai for carrying Indian currency valued at ₹ 10,92,000/- on 4th June, 2006 and the said currency was subsequently released vide order dated 20th April, 2007 passed by Joint Secretary, Department of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir, Appellant No. 3 A.P. 4 Purchased on 8-7-1999 for Rs. 14,999/- 7. It has been further stated that the said properties were purchased by affected persons much prior to AP-1 Dayalbhai Kikabhai Ahir starting his business in Dubai, that Dayalbhai Kikabhai Ahir had started his business in the name and style of Nidhi Textiles in 1994 hence there could not be any link between the activities of AP-1 and properties acquired by the affected persons prior to 1994. The agricultural land at survey No. 62 was acquired by Maganbhai Kikabhai Ahir (AP-3) much prior to 1994, the property at survey No. 107-A was purchased by Govindbhai Kikabhai Ahir in 2001 and he was a Government employee and was having regular flow of income, a copy of the certificate along with the details of his last drawn salary was also enclosed along with the appeal memo. In respect of AP-6 it was stated that he was gainfully employed in Dubai as a salesman and a copy of his bank account passbook showing remittance of funds into his account reflected in the passbook was also enclosed. 8. In respect of agricultural property being survey No. 250 it was submitted that it was jo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence to the acquisition of properties being made through known and legal sources. It was further stated that he was stationed at Dubai, his brother was an aged retired person and younger brother was an agriculturist who had not pursued any formal education, therefore, they could not produce evidences in the form of certificates indicating income from the business of milk, partnership deeds, copy of challan evidencing taxes paid, agriculture sale bills, bank passbook, remittances certificates, etc., which could have established that the properties in question were acquired from legitimate and legal sources. It was submitted therein that there was not a single immovable property of AP-1 which was subject to forfeiture proceedings other than the land jointly purchased in the name of AP-1 and his two brothers by his late father. It was stated that the agricultural land bearing survey No. 250 at Kudiyana, Tal-Olapad, Surat was purchased by his father as per family traditions in the name of his three sons (Dayalbhai Kikabhai Ahir, Govindbhai Kikabhai Ahir and Maganbhai Kikabhai Ahir). Another affidavit signed by three brothers, namely, Dayalbhai Kikabhai Ahir, Govindbhai Kikabhai Ahir an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le it to pass orders or for any other substantial cause, or (b) is satisfied that the competent authority has decided the case without giving reasonable opportunity to the appellant to adduce evidence on points specified by him or not specified by him, the Tribunal may allow such documents to be produced or witness to be examined or affidavit to be filed or may allow such evidence to be adduced or direct the competent authority to record such evidence and submit its report along with the record. 12. We have heard both sides during our camp sitting at Udaipur and gone through the records. It is apparent that after filing of appeal the appellants have filed certain additional documents which according to them could not be filed before the learned Competent Authority as the AP-1 Shri Dayalbhai Kikabhai Ahir was stationed at Dubai and his other two brothers were not conversant with the legal procedures involved in forfeiture proceedings. Basically for that reason we had given ample opportunity to the respondent to examine the evidences furnished by the appellants, get them verified wherever necessary and furnish the reply thereto. The appellants had also filed a written subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent. For ease of reference, the text of the reply dated 28-7-2014 filed by the Inspecting Officer on behalf of the respondent is reproduced hereunder :- I, Siddhartha Majumdar working as Inspecting Officer, in the office of the respondent at Ahmedabad Unit. I am filing this reply collectively to these MPs on behalf of the respondent which is vetted and approved by him on the basis of the facts available on record. MP-6 7-BOM-2013 1. A show cause notice under section 6 was issued to Shri Dayalbhai K. Ahir and his relative on 2-4-2008, the APs were given ample opportunity of being heard so as to submit the evidence they want to rely upon. As they could not provide any evidence, impugned properties were forfeited vide order dated 13-3-2009. 2. Thereafter the appellants filed this appeal and along with their appeal they appended additional evidence, which they never produced before the Competent Authority and they also did not make any application for additional evidence before the Hon ble Tribunal. 3. The respondent filed a detailed reply dated 1-8-2011, and in that reply at para 2.5 objection has been raised that the appellant did not make any applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I had made compliance vide letter dated 29-4-2008 as well as had attended the proceedings on 30-7-2008 25-8-2008 through my legal counsel. Since I am stationed at Dubai since 1994 and my other brothers relatives are not aware of the proceedings of SAFEMA effective compliance could not be made at the relevant point of time with regards the furnishing of evidences and other material with reference to the purchase/acquisitions of property being made known and legal sources. On account of my being stationed at Dubai and having a aged retired, retired elder brother and younger brother, a agriculturist who has not pursed any formal education I was constrained from adducing evidences in the form of certificates indicating milk income, partnership deeds, copies of challans evidencing the taxes, paid, agricultural sale bills, bank passbooks, remittance certificates etc. which would establish that the properties in questions were acquired from known and legal sources. Infact, the various immovable properties so forfeited except for one property in the joint name of my two brothers and myself there is not a single property belonging to me individually or my family members. Even that pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to acquire the impugned property was provided by their father who was an agriculturist by profession and possess agricultural land and the payment was made by him out of his own source of income from agriculture. Before accepting this contention, it is pertinent to ascertain whether father of the APs was possessing agricultural land? The aforesaid fact can be ascertained from the order u/s 7 itself wherein on the basis of evidences produced by the Appellants before the respondent, following piece of land were released by the respondent considering those as inherited land by the appellants, which were previously held by the father of the APs : SURVEY NO. AREA (SQ. METRES) 16 5767 203 3541 198 506 202 1316 217 2732 153 7588 91 3743 86 10320 Total Land held by father : 35513 From the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the pension and provident fund department which shows that the appellant withdrew ₹ 20,000/- in 1991-92 and ₹ 25,000/- in the month of March, 1997 the withdrawals were made prior to purchase properties i.e. survey number 149, 19 and 107-A. From the evidences submitted by the appellant it is clear that he purchased these properties for a consideration of ₹ 54,998/- and the source of acquition of these properties were GPF withdrawal of ₹ 45,000/- and income from Agriculture which he was earning ₹ 18,000/- to 20,000/- per annum as per the supporting evidences. Hence keeping in view the value of properties i.e. ₹ 54,998/- and his Agriculture income as well as withdrawal of ₹ 45,000/- from GPF A/c, shows that the impugned property might have been purchased from his legal source of income. (C) Agriculture land at Survey Number 62, Village : Kudiyana, Olpad, Surat : This agricultural land has been acquired by the appellant No. 2 for a consideration of ₹ 19,999/- on 30-4-1989. In support of his income the appellant produced income tax assessment orders for the assessment year 1984-85, 1985-86 1986-87 which shows the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccounts submitted are true and issued by their society, the account shows that in 1998-99 the AP-1 was paid ₹ 178,123/- for selling sugarcane to the Sayan Sahakari Khand Mandali, thereafter the certificate issued by the Sahakari Mandali shows that the AP-1 sold following sugarcane crop and got payments : Year M.T. Rate Amount Paid 2007-08 91.020 1114.00 101396.28 2008-09 28.870 2194.00 63340.78 2009-10 82.750 2869.00 237409.75 2010-11 321.480 2104.00 676393.92 2011-12 387.300 2706.00 1048033.80 Further another piece of account shows that AP-1 sold 70.210 M.T. Sugarcane in the year 2002 through the Sahakari Mandal, hence from the evidence submitted by the AP it can be assumed that the AP had enough income to prove the meager deposit of ₹ 1395/- and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of her deposits in saving bank account she made an FDR of ₹ 20,000/- on 3-10-2005, which can be corroborated from the copy of passbook she submitted. However, all the APs gave evidences of their income but the AP-8 did not submitted any such evidence, perusal of her SB account shows she got deposit of ₹ 20123/- on 3-10-2005 and out of this deposit she made the FDR, thereafter she got deposit of ₹ 10,000/-, ₹ 25,000/-, ₹ 20,000/- and ₹ 10,000/- on 2-1-2006, 26-5-2006, 17-8-2006 and 4-6-2009, for which she has no explanation except her claim of income from giving tuition, tailoring work and gifts received on various occasions. The balance of SB account was ₹ 14407/- on 2-7-2009 which was forfeited. However as the allegation in SAFEMA case is always that the source of impugned property is provided by the detenue, but in this case the detenue himself has ample source of legal income, hence in view of the quantum of deposits and legal source of income of the detenue, the impugned sum can be treated legally earned income of the AP. MP-68/BOM/2013 Vide aforesaid MP the appellant filed additional grounds and raised the averment that the det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and correct. 14. The appellants have also filed rejoinder to the reply filed by the respondent enclosing therewith the copy of the letter dated 3-9-2014 from the Govt. of Maharashtra. In the said letter, which was in response to an RTI application by the AP-1, it has been stated that due to a fire, mishap on 21st June, 2012 all the records relating to COFEPOSA matters got destroyed, and hence their inability to furnish copy of documents sought by the applicant. 15. The aforementioned deposition by the learned authorized representative for the respondent very fairly clinches the issue whether or not the applications for additional evidences should be allowed or not. After careful perusal of all the submissions and documents we are satisfied that the Competent Authority decided the case without giving a reasonable opportunity to the appellants to produce all the evidence before him. We are also guided by the fact that upon verification and examination, the submissions about the legal acquisition of the forfeited properties have been found to be acceptable by the ld. Authorized representative for the respondent. We accordingly allow both the miscellaneous applications for addi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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