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Khozem F. Kaukawala Vs. Competent Authority - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT IT
Decided On
Judge
Reported in(1999)239ITR1ITAT
AppellantKhozem F. Kaukawala
RespondentCompetent Authority
Excerpt:
.....the issue of a notice under section 6 or under section 10, any property referred to in the said notice is transferred by any mode whatsoever such transfer shall, for the purposes of the proceedings under this act, be ignored and if such property is subsequently forfeited to the central government under section 7, then, the transfer of such property shall be deemed to be null and void." 7. a reading of section 11 makes it clear that any transfer of property sub-sequent to the issue of notice under section 6 or section 10 has to be ignored. if the property is subsequently forfeited to the central government under section 7, then the transfer of such property shall be deemed to be null and void. in the present case, the sale in favour of the appellant was on february 16, 1998, which was.....
Judgment:
1. This appeal has come up before us for consideration as we directed notice to the appellant as well as to the Competent Authority at the stage of consideration of the stay petition. Shri Dharmendra K.Maltiwala, appeared for the appellant, and the Deputy Director for the Competent Authority, and we heard them at length on the merits of the appeal and the appeal itself is disposed of along with the stay petition.

2. The appeal is filed against the order of the Competent Authority, Ahmedabad, dated August 19, 1980, under section 7 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA), whereby properties belonging to Hasmukh Tribhovandas Gandhi who was detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), were forfeited by order dated June 25, 1976. After issuing notice to the detenu under section 6(1) dated June 16, 1979, and after considering the contentions of the detenu and the record, the impugned order was passed. The appeal filed by the detenu against the impugned order was allowed in part, only in respect of the forfeiture of an amount of Rs. 42,000 and the rest of the impugned order was sustained by this Tribunal by order dated December 16, 1980, in FPA No. 16 of 1980-81.

3. The present appeal is filed by Khozem F. Kaukawala who claims to have purchased one of the forfeited properties, namely, a flat bearing No. C-3, First Floor of Monalisa Apartment in Timaliawad, Nanpura, Surat, from one Mr. Natvarlal Babubhai Rupareliyawala on February 16, 1998, for consideration under a registered sale deed and he claims that he is a bona fide purchaser for value, without notice. It is stated that the appellant's vendor, Natvarlal, purchased the said flat from one Mukeshbhai Parekh under a registered sale deed dated March 17, 1997, who had in his turn purchased the said flat from Anil Hasmukhlal Gandhi. Anil Hasmukhlal Gandhi is said to have purchased from one Champaklal Narandas Mehta. The appellant contends that he is in actual possession and occupation of the flat as a bona fide purchaser and the owner of the property from November 24, 1998, onwards.

4. Learned counsel for the appellant vehemently contended that the appellant being a bona fide purchaser of the flat, is protected under section 41 of the Transfer of Property Act and that when he came to know about the impugned order, he filed the present appeal and that he is entitled to have the impugned order set aside, so far as the flat is concerned. He further contends that the flat was free from any encumbrance and the Monalisa Apartments Co-operative Housing Society Ltd., Surat, issued a "no objection certificate" in respect of the previous sale transactions.

5. The Deputy Director, appearing for the Competent Authority, submitted that the appeal filed against the impugned order for the detenu had already been dismissed and cannot be reopened once again and that the appeal is hopelessly barred by limitation. He further contends that the sale transactions in favour of the appellant and his predecessors are all void under section 11 of the SAFEMA.6. In order to appreciate the rival contentions it is necessary to set out section 11 of the SAFEMA : "Certain transfers to be null and void. - Where after the issue of a notice under section 6 or under section 10, any property referred to in the said notice is transferred by any mode whatsoever such transfer shall, for the purposes of the proceedings under this Act, be ignored and if such property is subsequently forfeited to the Central Government under section 7, then, the transfer of such property shall be deemed to be null and void." 7. A reading of section 11 makes it clear that any transfer of property sub-sequent to the issue of notice under section 6 or section 10 has to be ignored. If the property is subsequently forfeited to the Central Government under section 7, then the transfer of such property shall be deemed to be null and void. In the present case, the sale in favour of the appellant was on February 16, 1998, which was long after the forfeiture of the flat in the year 1980 and the confirmation of the forfeiture by this Tribunal in the year 1983. Even the sale transactions in favour of the predecessors in title of the appellant were made long after the property was forfeited to the Central Government. All these transactions are, therefore to be held to be void and are of no consequence.

8. The contention of learned counsel for the appellant that the appellant being a bona fide purchaser for value is entitled to the protection of section 41 of the Transfer of Property Act cannot be accepted for the reason that the provisions of the SAFEMA have overriding effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Section 24 of the SAFEMA is as follows : "Act to have overriding effect. - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force." 9. The SAFEMA is a special enactment and is given overriding effect over every general law, under section 24. Section 41 of the Transfer of Property Act, 1882, is an exception to the general rule, but has no application to the special provisions under section 11 of the SAFEMA, which in clear terms, lays down that the transfer of any property made subsequent to 'the forfeiture of the property to the Central Government consequent to the order made under section 7, shall be deemed to be null and void. In view of the clear provision made in the special enactment in section 11 of the SAFEMA, section 41 of the Transfer of Property Act will not Come to the aid of the appellant. The question as to whether the appellant is a bona fide purchaser for value without notice, does not fall for consideration.

10. For all the aforesaid reasons, we hold that the sale in favour of the appellant as well as his predecessors in title, were all null and void and hence the appeal has no legs to stand and is accordingly dismissed. Consequently, the stay petition stands rejected.


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