TaxTMI 
TaxTMI 
2003 (7) TMI 650
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....t the same belonged to Jagannath Sharma. Jagannath Sharma was then detained under MISA on 8.10.1974, but the detention order was revoked and he was released in November, 1974. Thereafter, he was again detained on 4.8.1975 under COFEPOSA Act by an order passed by the Deputy Secretary to the Home Department, Government of Rajasthan, Jaipur. The detention order was passed on the ground that the State Government was satisfied that with a view to prevent Jagannath Sharma from dealing in smuggled goods and engaging in transporting or concealing or keeping smuggled goods, it was necessary to make an order under Section 3(1) of the COFEPOSA Act to detain him. 3. Proceedings for forfeiture of three properties, namely, (1) House property No. D-48, Bapu Nagar, Jaipur; (2) House property known as Haldia House, Johari Bazar, Jaipur (Municipal No.JD-JMC-1/106/1948); and (3) House Property in Mehandi Ka Chowk, Ramganj Bazar, Jaipur (Municipal No.GD-JMC-1/276/1948) were initiated under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short "SAFEMA"). A notice under Section 6(1) of SAFEMA (hereinafter referred to as "the Act") was issued to the appellant Sm....
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....pt the contention of the representative of the Department that the letter dated 27.4.1977 forwarding to the appellant a copy of the notice under Section 6(1) issued to her husband Jagannath Sharma, was not only a notice under Section 6(2) to her but also a notice under Section 6(1) in respect of these two properties. After consideration of the evidence adduced by the parties, the Tribunal agreed with the finding of the competent authority that there was no evidence to support the assertion that the appellant was carrying on any business and that any savings were thus available to her for making investment in the properties acquired. Accordingly, the appeal was allowed qua (1) Haldia House property and (2) Mehandi Ka Chowk properties and the order of forfeiture passed regarding the aforesaid properties was set aside. The appeal was, however, dismissed with regard to house property No.D-48, Bapu Nagar, Jaipur and its forfeiture as directed by the competent authority was upheld. 5. The appellant then preferred a writ petition before the Jaipur Bench of Rajasthan High Court challenging the orders of the competent authority and of the appellate authority. During the course of hearing....
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....this Court, the main grounds of challenge raised before the High Court have no legs to stand. 7. The competent authority as also the appellate authority considered the evidence adduced by the appellant and came to the conclusion that there was no evidence to support the appellant's claim that she was carrying on any business and that any savings were thus available to her for making investment in the acquired property. The finding is based upon a thorough and proper appraisal and consideration of the evidence on record and we find no reason to differ from the same. In the special leave petition, the grounds taken relate to the validity of the detention order passed under COFEPOSA Act against Jagannath Sharma and also to the correctness of the finding recorded by the authorities that the appellant did not have any individual income of her own to purchase the properties. These grounds, in our opinion, have no substance for the reasons indicated above and they were rightly not very seriously pressed by the learned counsel before us. 8. An application was moved by the appellant on 24.3.2003 for producing additional documents and for urging additional grounds. Learned counsel h....
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....s acquired such property and to show cause why all or any of such properties, as the case may be, should not be declared to be illegally acquired properties and forfeited to the Central Government. The condition precedent for issuing a notice by the competent authority under Section 6(1) is that he should have reason to believe that all or any of such properties are illegally acquired properties and the reasons for such belief have to be recorded in writing. The language of the Section does not show that there is any requirement of mentioning any link or nexus between the convict or detenu and the property ostensibly standing in the name of the person to whom the notice has been issued. Section 8 of the Act which deals with burden of proof is very important. It lays down that in any proceedings under the Act, the burden of proving that any property specified in the notice served under Section 6 is not illegally acquired property, shall be on the person affected. The combined effect of Section 6(1) and Section 8 is that the competent authority should have reason to believe (which reasons have to be recorded in writing) that properties ostensibly standing in the name of a person to w....
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.... is not to forfeit the independent properties of such relatives or associates which they may have acquired illegally but only to reach the properties of the convict/detenu or properties traceable to him, wherever they are, ignoring all the transactions with respect to those properties. By way of illustration, take a case where a convict/detenu purchases a property in the name of his relative or associate it does not matter whether he intends that such a person to be a mere name lender or whether he really intends that such person shall be the real owner and/or possessor thereof or gifts away or otherwise transfers his properties in favour of any of his relatives or associates, or purports to sell them to any of his relatives or associates in all such cases, all the said transactions will be ignored and the properties forfeited, unless the convict/detenu or his relative/associate, as the case may be, establishes that such property or properties are not "illegally acquired properties" within the meaning of Section 3(c). "It is equally necessary to reiterate that the burden of establishing that the properties mentioned in the show-cause notice issued under Section 6, and which are ....
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....ict or detenu. In the present case, the appellant is the wife of the detenu and she has failed to establish that she had any income of her own to acquire the three properties. In such circumstances, no other inference was possible except that it was done so with the money provided by her husband. 13. In order to examine whether the notice issued by the competent authority satisfies the requirement of Section 6, it is necessary to reproduce the same and the same reads as under : "1. Kesar Devi alias Kani Devi, of DG-JMC-1/169/1948, Bakshiji-Ki-Gali, Mehandi Ka Chowk, Ramganj Bazar, Jaipur is the wife of Jagan Nath Sharma in respect of whom an order of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 was made on 4.8.1975. She is, therefore, a person covered by Sec. 2(2)(c) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as the SAFEMA). 2. The Commissioner of Income-tax, Jaipur has, vide his D.O. No.ADI/JPR/COFEPOSA/350 dated 1.9.1976, furnished information under Sec. 16(2) of the SAFEMA regarding the illegally acquired properties of Kesar Devi. 3. Kesar Devi....