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FEMA - Case Laws
Showing 61 to 80 of 854 Records
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2022 (7) TMI 301 - DELHI HIGH COURT
Provisional attachment orders made under the provisions of FEMA - prayer for grant of interim directions was opposed by learned CGSC who contended that the Certificate of Registration (COR) of the petitioner already stands cancelled by the Reserve Bank of India (RBI) - HELD THAT:- Insofar as the question of cancellation of the COR is concerned, the Court notes that the same would have no bearing on the issues which arise in the present writ petition since that constitutes action taken by the RBI under the statutory provisions contained in the Banking Regulation Act, 1949. The said action would only impact the right of the petitioner to continue the business which was permitted.
The Court notes that insofar as the release of Rs. 15.5 crores is concerned, it was submitted by Mr. Ganesh that the aforesaid sum has not been released in fact and the petitioner has not even been able to utilise the same till date. The Court further notes the submission of Mr. Ganesh who contends that the aforesaid amount which was released was just sufficient to meet the needs of the petitioner for the period between November 2021 to January 2022. Bearing in mind the issues, which stand raised, this Court is of the opinion that in the interim certain amounts would merit being released in favour of the petitioner to enable it to meet its day to day expenses pending final disposal of the present writ petition.
Accordingly, let a sum of Rs. 25 crores be released in the interim, subject to the condition that the petitioner shall utilise the said monies only for the purposes of meeting its day to day essential expenditure as well as towards salaries of employees. The petitioner shall also place on the record of these proceedings an affidavit disclosing details of utilisation of the sum which is being released. The Court further takes on board the undertaking of the petitioner that no part of the monies which stand released in the interim and pursuant to this order shall be remitted overseas. The interim release which has been directed in terms of this order shall be in addition to the amount of Rs 15.5 crores which was released pursuant to the statement of the learned ASG as recorded before the Supreme Court.
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2022 (6) TMI 1341 - KERALA HIGH COURT
Person aggrieved’ in section 17 of FEMA - deemed complainant - Whether appellant is not an aggrieved person? - writ petitioner entiltment for copy of the adjudication order as he was only an informer and he cannot be treated as complainant - Central Government Counsel [CGC] contended that the petitioner is not entitled for a copy of the adjudication order, since he is only an informer and cannot be termed as the complainant - HELD THAT:- We find substantial force in the contention urged by the learned CGC. Other than alerting the officials of the Department regarding violations of the Act, an informer has no further role as per the scheme of the Act. The complaint based on the information has to be filed by an authorised officer, upon which alone the adjudicating authority can conduct enquiry. The Rules envisage issuance of copy to the person against whom an order of adjudication is passed. The term ‘aggrieved person’ in Section 17 will take in only the person against whom the order is passed and the complainant. Being so, the informer is not entitled for a copy of adjudicating order has no legal right to challenge the order by filing an appeal under Section 17.
In the result, the writ petition is dismissed, without prejudice the petitioner’s right to pursue his application for obtaining a copy of the order under the Right to Information Act, 2005.
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2022 (6) TMI 1043 - BOMBAY HIGH COURT
Foreign Exchange Regulatory Appellate Board confirming the order passed by the Assistant Director imposing penalty and confiscating as per section 63 of the Foreign Exchange Regulation Act, 1973 - HELD THAT:- Though the Appellant may be right in insisting on compliance of the order of this Court as it is and it is because of the pendency of the litigation that the Appellant is agreeable for receipt of the amount in Indian rupees, the Appellant cannot be penalized but must be compensated in fair manner.
Accordingly, we direct that the order passed by this Court be complied with by the Enforcement Directorate within a period of eight weeks, with a clarification that the amount of US$ 1,300 should be converted in Indian rupees as per the rate prevailing as on today i.e. 14 June 2022 and be paid to the Appellant within a period of eight weeks along with interest. We place the responsibility of compliance with this order on the Assistant Director, Enforcement Directorate, the Respondent No.2 and if the order is not complied within a period of eight weeks as above, the Court may take serious view of non-compliance.
As regards the claim of interest is concerned, it is the contention of the Enforcement Directorate that since the Department had offered to return the amount immediately in Indian rupees, interest need not be imposed. The order dated 30 September 2010 stipulates 10% interest.
Department has not followed the procedure under section 42(4) of the Act and has taken unilateral steps. The approach of the Enforcement Directorate is to keep the application pending. In the circumstances, we do not propose to deviate from the rate of interest specified in the order dated 30 September 2010.
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2022 (6) TMI 165 - DELHI HIGH COURT
Offence under FERA - Non-realization of payment towards exported goods - “reasonable steps” to be taken for securing the sale proceeds of exports or not? - concerned buyer in France became bankrupt and therefore, some of the export proceeds against the said consignments could not be realized - HELD THAT:- Any person effecting an export of goods is also responsible, rather duty bound, to also effect the securing of proceeds from such export/sale. The only exception, as per the language of the provision, is permission from the RBI, which if obtained may lead to granting of the leverage of not securing the proceeds within the stipulated and prescribed period. Further, sub-section 3 makes a presumption against the person who has not been able to secure the proceeds from exports that he/she has not taken all reasonable steps so as to recover the amount to be realized from the proceeds of sale. The purpose behind these provisions becomes clearer when seen from the standpoint of the legislature and its intention and purpose of bringing into the Act into existence
It is evident from the objective, as specified in the preamble of the Act, that the need at the time of enactment of the Act was to accommodate trade deficit with the aim to also conserve foreign exchange resources in the Country. The purpose behind the Act was to ease out the foreign exchange crunch that the Country was going through. The objective, therefore, was to make such enabling provisions to facilitate due, proper and timely realization of the amount that is accrued by foreign buyer towards goods exported and to also facilitate regularized foreign exchange.
Whether the steps taken by the appellant were ‘reasonable steps’ as have been stipulated under Section 18(3) of the FERA? - There are no established principles or guidelines laid down by law to the question as to what amounts to reasonable steps under Section 18(3) of the FERA, and therefore, the same has to be established in light of the facts and circumstances of each case.
In the instant matter, the appellant upon non-realization of payment towards exported goods made attempts to communicate with the buyer in France. The following communications were made by the appellant, as have been enlisted in her reply dated 26th March, 2004, to the Show Cause Notice by the respondent no. 2/ED
As it is found that the appellant undertook the basic and primary measures of contacting and communicating with the foreign buyers and approaching the RBI after the lapse of the stipulated time period, however, these fundamental steps in themselves were not sincere, serious and sufficient attempts to effectively cause the recovery of the proceeds of sale. Another relevant factor to be considered is that the Appellate Tribunal reduced the penalty imposed upon the appellant by about 60 percent, that is from Rs. 25,00,000/- to Rs. 15,00,000/-, which in itself is a relief granted to the appellant despite having been found guilty of contravening the provisions of the FERA.
In light of the facts and circumstances, contentions raised, arguments advanced and judgments cited, it is found that there is no error in the impugned order dated 30th August, 2016 passed by the Appellate Tribunal in Appeal No. 138/2007. The Tribunal has rightly imposed the penalty upon the appellant and this Court does not find any substantial ground or cogent reason to invoke its extraordinary jurisdiction and interfere with the said order. Accordingly, the instant Criminal Appeal is dismissed.
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2022 (5) TMI 256 - CALCUTTA HIGH COURT
Offence under FEMA - prejudice on account of infraction of the procedure - main ground of challenge was that the impugned notice was issued without complying with the Rule 4(1) and Rule 4(2) of the Rules of 2000 - HELD THAT:- The adjudicating authority is required to give the notice under sub-rule (1) to the concerned person requiring him to show cause as to why inquiry should not be held against him indicating the nature of contravention alleged to have been committed by him. After considering the cause, if any shown, and on forming an opinion that an inquiry should be held, the adjudicating authority is required to issue notice under sub-rule (3) fixing the date of appearance. In the present case, undisputedly no notice in terms of sub-rule (1) and (2) of Rule 4 has been given and straight away notice under sub-rule (3) of Rule 4 has been issued which was subject matter of the challenge in the writ petition.
As decided in KANWAR NATWAR SINGH & KANWAR JAGAT SINGH VERSUS DIRECTORATE OF ENFORCEMENT [2010 (10) TMI 156 - SUPREME COURT] Notice in terms of sub-rule (1) and (2) is necessary and thereafter formation of opinion under sub-rule (3) is required before conducting inquiry in terms of other provisions of the Rule.
The Hon’ble Supreme Court in the matter of State of Uttar Pradesh vs. Singhara Singh and Others [1963 (8) TMI 43 - SUPREME COURT] has noted that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden.
Enforcement Directorate was required to form an opinion after giving notice to the petitioner before issuing the impugned show cause notice dated 06.07.2020 which he has failed to do in the present case.
Hence, we dispose of the appeal without interfering in the show cause notice dated 06.07.2020 but by directing the Special Director, Eastern Region, Enforcement Directorate to form his opinion after recording reasons in terms of sub-rule (3) of Rule 4. If the opinion so formed is adverse to the appellant, such opinion along with the reasons so recorded shall be furnished so as to reach the appellant at least 15 days prior to the date of personal hearing as the same would meet the requirement of Rule 4(3).
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2022 (5) TMI 241 - CALCUTTA HIGH COURT
Offence under FEMA - Petitioner argued that the adjudicating authority did not follow the procedure prescribed in Rule 4(1) and 4(2) of the Adjudication Rules of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 - petitioner has been seriously prejudiced by refusal and failure to supply documents relied upon by the complainant Assistant Director - HELD THAT:- In the instant case, failure to bring back export proceeds to the extent of seven thousand crores arose out of loan transactions between the petitioner and his entities and about 23 banks.
It is now well settled that every infraction of the principles of natural justice or procedure stipulated for adjudication would not vitiate a proceeding. The petitioner has to demonstrate actual and real prejudice
The two tier procedure under Rule 4 which warrants a preliminary enquiry to form an opinion before the process of actual adjudication, may have laudable objects given the very serious civil consequences. The need of demonstration of prejudice due to infraction of such procedure would still be necessary to vitiate the proceedings, and would not otherwise be given a go-by merely because of codification of principles of natural justice into separate Rules in the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000.
Since the petitioner himself submits that the notice issued by the Adjudicating Authority was under Rule 4(3), this Court requires the adjudicating authority to submit a brief gist of its satisfaction of prima facie case against the petitioner along with copies of necessary documents within a period of 15 days from date.
Upon receipt of such gist, the petitioner shall show cause both to the notice dated 6th July 2020 as well as the gist. The procedure prescribed under Rule 4(3) would thereafter be undertaken by the adjudication authority.
The proceedings before the adjudicating authority shall be completed expeditiously and preferably within a period of two months from the date of supplying the gist as indicated hereinabove.
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2022 (4) TMI 937 - RAJASTHAN HIGH COURT
Offence under FEMA - maintainability of writ petition before this Court - HELD THAT:- This Court finds that the writ petition filed at Jaipur Bench, Jaipur for challenging the order dated 26.04.2019 passed by the Additional Director, is not maintainable as no cause of action has arisen in the territory of State of Rajasthan.
The submission of the petitioner that initially a complaint was filed by the Additional Director and further direction to deposit the penalty amount in Jaipur Office, cannot be termed as a part of cause of action.
This Court finds that the complaint which was filed against the petitioner, has resulted into issuance of show cause notice to the petitioner and thereafter, adjudication has to take place and as such the petitioners cannot be allowed to state that part of cause of action, has arisen in the territory of State of Rajasthan.
This Court finds that initially the petitioner had filed writ petition against show cause notice in the Punjab and Haryana High Court at Chandigarh and after an order being passed to approach the respondents by giving a detailed and comprehensive representation, the Authorities have finally ajdudicated the issue of violation of Foreign Exchange and order dated 26.04.2019 has been passed.
The submission of learned counsel for the petitioners that the petitioners are residents of Jodhpur and further, they are having their business operations in the State of Rajasthan and as such, this Court has ample jurisdiction to entertain the writ petition, suffice it to say by this Court that the residence of the petitioners or their place of carrying business, cannot constitute as part of cause of action.
The other reason with regard to maintainability of writ petition before this Court on account of violation of principle of natural justice, suffice it to say by this Court that if the petitioner has any grievance in respect of violation of any provisions of Rules of 2000 or the Act of 1999, the Appellate Forum has been constituted by the legislature and all issues including the issue of violation of principle of natural justice or delay can all be agitated by the petitioner before the Appellate Forum.
This is beyond comprehension of this Court that when an appeal is provided, before the Appellate Authority, then litigant cannot raise the issue of violation of principle of natural justice/delay/competence of any Authority to issue the orders.
This Court finds that the alternative statutory remedy available to the litigant/petitioners is available to them and the order, which is put to challenge itself makes a reference of such a remedy/Authority for raising the grievance.
This Court, in the wake of statutory alternative remedy available to the petitioners, would not like to entertain the present petition filed under Article 226 of the Constitution of India.
Accordingly, this writ petition is dismissed on account of alternative, statutory remedy available to the petitioners as well as on the ground of lack of cause of action arisen before this Court.
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2022 (3) TMI 943 - TELANGANA HIGH COURT
Legality and validity of the seizure orders - HELD THAT:- The facts of the case reveal that before the learned Single Judge, though a prayer for quashment of seizure orders dated 26.08.2021, 30.09.2021 and 15.12.2021 was made, an interlocutory application was preferred for release of ₹ 15,35,45,317/- and the learned Single Judge has allowed the application. The writ petition itself has been disposed of by the impugned order dated 11.02.2022.
In the considered opinion of this Court, once the seizure orders were not set aside and no statutory provision was brought to the notice of the learned Single Judge for release of such amount and the seizure orders have been affirmed by the competent authority under Section 37A(2) of the Act, no such provisional release could have been ordered by disposing of the writ petition itself.
Learned counsel for the Union of India has also brought to the notice of this Court the press release issued by the Reserve Bank of India dated 24.02.2022 and the same reflects that even the banking licence of the respondent No.1/writ petitioner has been cancelled.
However, as this Court is not dealing with the cancellation of licence, no comment has been offered in respect of such cancellation. Learned counsel for the respondent No.1/writ petitioner has stated that he does not have a copy of the aforesaid order and he is not aware of the same.
Section 37A of the Act provides for a remedy of appeal and therefore, as now an order dated 04.02.2022 is in existence, the respondent No.1/writ petitioner shall certainly be free to prefer an appeal or to avail the other remedies available under the law. Resultantly, the order passed by the learned Single Judge is set aside and the writ appeal stands allowed.
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2022 (3) TMI 917 - TELANGANA HIGH COURT
Seizure orders - respondent No.2 has seized an amount of approximately 270 crores and has transferred a substantial portion of the said amount to its own bank account - HELD THAT:- Several circumstances are narrated with regard to the hardship which the petitioner Company would face, if an amount of ₹ 15,35,45,317/- is not ordered to be released. Under these circumstances, in order to keep the petitioner Company alive and to enable it to meet its day to day expenses like payment of salaries to its employees, payment of taxes, statutory dues and operational expenses etc., this Court, in the interest of justice, deems it appropriate to direct the respondent No.2 to release an amount of ₹ 15,35,45,317/- (Rupees fifteen crores thirty five lakhs fourty five thousand three hundred and seventeen only), which is commensurate with the amount mentioned in paragraph 9 of the affidavit filed in support of I.A. No.1 of 2022, i.e., expenditure incurred by the petitioner company for the months of November and December, 2021 and January, 2022.
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2022 (3) TMI 809 - MADHYA PRADESH HIGH COURT
Offence under FEMA - enquiry contemplated under Section 16(3) of the Foreign Exchange Management Act, 1999 on the basis of complaint by an Authorized officer as provided for under the said sub-section - As argued show-cause notices are not in compliance with the procedure prescribed under Rule 4 of 2000 Rules - HELD THAT:- We are of the view that no indulgence is warranted in the matter of issuance of impugned show-cause notice dated 08.04.2021 and the notice for personal hearing dated 28.06.2021.
Adjudicating Authority is yet to hold an enquiry and thereafter take a decision to initiate proceedings for imposition of penalty under Section 13 of the FEMA. Thereafter, the petitioner has a remedy of filing appeals viz. (1) under Section 17 to the Special Director (Appeals) against the orders of the Adjudicating Authorities, being an Assistant Director of Enforcement or a Deputy Director of Enforcement; (2) under Section 19 to the Appellate Tribunal against the order made by an Adjudicating Authority other than those referred to in sub-section (1) & (2) of Section 17, or the Special Director (Appeals); and (3) under Section 35 to the High Court against the order of Appellate Tribunal.
Though the petitioners complain of not being able to file reply on merits against the impugned show-cause notice, nevertheless there is no reason forthcoming as to why the petitioners have not attended the office of prescribed Authority as indicated in the impugned notice for inspection of documents attached with the complaint. Be that as it may, while responding to the notice dated 28.06.2021 for personal hearing, petitioners are always free to seek the opportunity for inspection of documents and file reply. Petitioners may raise all questions on facts and in law available to them in the context of the enquiry under Rule 4 of 2000 Rules. The Adjudicating Authority shall be well advised to consider the reply during the course of proceedings.
Four weeks' time, as prayed for, is granted to inspect the documents, if so advised, and file reply. Adjudicating Authority shall complete proceedings within eight weeks thereafter keeping in mind the time bound completion of proceedings as ordered bearing in mind the provisions of sub-section 6 of Section 16 of FEMA.
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2022 (2) TMI 794 - DELHI HIGH COURT
Violation of provisions of FCRA, 2010 - Suspension of certificate - suspension u/s 13(1) of the FCRA, 2010 - HELD THAT:- This Court, in the facts of that case had set aside the suspension order on two grounds, firstly, no reasons have been spelt out in the suspension order and secondly, the respondents have neither issued Show Cause notice nor initiated an inquiry by the time the suspension order was passed.
Insofar as, stating the reasons for suspension is concerned, as concluded above, the reasons have been given in the impugned order. To that extent, the judgment has no applicability. Insofar as the conclusion of the Court by the time the suspension order was passed neither an inquiry was initiated nor any Show Cause notice was issued is concerned, it is my conclusion that the process of inquiry was started in the year 2017. So, it is not a case where neither any inquiry was initiated nor any Show Cause notice was issued. So, the judgment relied upon by Mr. Datar and Mr. Singh is clearly distinguishable.
Insofar as the reliance placed by Mr. Datar and Mr. Singh on the judgment in the case of Modern Dental College and Research Centre and Ors. [2016 (5) TMI 1366 - SUPREME COURT] the same is inapplicable to the present case, inasmuch as, the impugned order suspending the petitioner is in consonance with the object which the instant legislation/statute strives to achieve and has not gone in excess of that object, as my findings above would depict, and as such, satisfies the doctrine of proportionality.
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2022 (1) TMI 1368 - DELHI HIGH COURT
FCRA registration - Delay opening of an “FCRA bank account” with the State Bank of India - petitioner could not upload the FC-4 Form on the respondent’s portal within the scheduled time period of June 30, 2021 as there was delay in opening the designated account in the main Branch of the State Bank of India, 11, Sansad Marg, New Delhi – 110001 - HELD THAT:- On a specific query to the learned counsel for the petitioner what steps, were taken by the petitioner to open the account, when the concerned amendment was notified on October 7, 2020, the learned counsel for the petitioner seeks some time to take instructions and file relevant documents along with an affidavit.
Noting the said submission, re-notify on March 11, 2022.
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2021 (12) TMI 132 - KARNATAKA HIGH COURT
Proceedings in terms of section 16(1) r/w sec. 13 of the Foreign Exchange Management Act, 1999 - contravention of the provisions of sections 3(b), 5, 6(2)(a) & 10(6) of FEMA r/w. Regulations 3 & 4(a) of the Foreign Exchange Management (Permissible Capital Account Transactions) Regulation 2000 in relation to a foreign exchange - HELD THAT:- After service of notice, the respondents having entered appearance through the Central Govt. Counsel vehemently oppose the petitions making submission in justification of the impugned notice & the complaint and in support of the reasons on which they have been constructed.
As these Writ Petitions being devoid of merits, are liable to be dismissed and accordingly, they are, all contentions having been kept open.
Petitioners are granted a period of four weeks for submitting their reply to the subject notice; discretion lies with the answering respondents to grant some more time as well if a case is made out therefore; it is also open to the petitioners to seek reasonable clarifications from the quarters concerned, if need be.
The observations herein above made being confined to disposal of these Writ Petitions, shall not shade the reply to be submitted by the petitioners and influence the formation of the opinion by the answering respondents as to enquiry-worthiness of the matter.
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2021 (10) TMI 1131 - SUPREME COURT
Pre-deposit requirement qua the petitioner - As petitioner submit that he in no way concerned with the affairs of the company after his resignation on 6-5-2006 much less with the agreement dated 21-6-2006. Further, even the earlier agreement was between the two companies to which the petitioner was not a signatory - HELD THAT:- As in our opinion, for the stand taken by the petitioner, we direct the Appellate Authority to exempt the requirement of pre-deposit as regards this petitioner (M. Umesh), in case he resorts to remedy of appeal in light of the liberty given in terms of this order. In other words, the Appellate Authority shall not insist for pre-deposit requirement qua the petitioner herein, i.e. M. Umesh.
Besides, the appellate authority shall not non-suit the petitioner for having filed the appeal beyond limitation as the petitioner was pursuing remedy before the High Court in the first place and thereafter before this Court, after issuance of show cause notice.
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2021 (10) TMI 1130 - DELHI HIGH COURT
Foreign contributions - Prior permission u/s 11 to receive foreign contributions in the form of life saving equipment/articles for COVID-19 insofar as to expedite the relief work in our country - exemption to registered associations, organisations or persons, defined under Section 2(1)(m) of the Foreign Contribution (Regulation) Act, 2010 to receive foreign contributions - HELD THAT:- As exemptions and relaxations under different Statutes are not a matter of right. It is the prerogative power of the Government to exempt or give relaxations with or without stringent conditions. It is not for the Court to direct the Government to exercise the power in a particular manner. It is evident from the pleadings and not denied by the Learned Counsel for the Petitioner during the course of hearing that before filing the present petition, Petitioner has not approached the Competent Authority seeking exemption under the Act.
We therefore direct the Competent Authority under the concerned Ministry to treat the present petition as a representation and decide the issues raised and grievances ventilated by the Petitioner, in accordance with law, relevant rules, regulations and Government policies applicable to the facts of the case, as early as practicable, keeping in mind the nature of relief sought.
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2021 (10) TMI 1129 - CALCUTTA HIGH COURT
Search and seizure operation carried out by the officers of FEMA - search and specific seizure of certain gold jewellery which, according to him, was part of the stock-in-trade - Jurisdiction of High court - HELD THAT:- As cause of action has arisen within the State of West Bengal, that is, the search and seizure has taken place in West Bengal and the petitioner company is situated at West Bengal, in my view, there is no impediment in entertaining this writ petition before this High Court.
Clause (2) of Article 226 of the Constitution of India clearly allows this High Court to have jurisdiction in such cases wherein the cause of action has partly arisen notwithstanding the fact that the seat of the authority dealing with the issue is outside the jurisdiction.
Search and seizure of the excess jewellery that has been seized by the Enforcement Directorate - As it is to be noted that in the writ petition, the petitioner has relied on several documents to indicate that this “excess jewellery” was duly accounted for and had been sent for job work. In my view, the Enforcement Directorate should look into the documents filed in the writ petition and pass a reasoned order on whether these goods are stock-in-trade or not.
Enforcement Directorate finds that the same are duly accounted for, the same should be released in favour of the petitioner in accordance with law. The above enquiry and the reasoned order should be passed within a period of eight weeks from date.The authorities are also directed to allow the authorized representative of the petitioner-company to have a lawyer of his choice to be present during the summons at an inaudible distance as per the guidelines laid down by the Supreme Court.
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2021 (9) TMI 730 - SUPREME COURT
Extension of tenure of Director of Enforcement - extension of tenure granted to persons holding the post of Director of Enforcement after attaining the age of superannuation - fixing the tenure for a minimum period of two years - procedure prescribed under Section 25 of the Central Vigilance Commission Act, 2003 (‘CVC Act’) - Whether there can be extension of tenure of a person who has been appointed as a Director of Enforcement for a period of two years and who has attained the age of superannuation in the interregnum i.e. before the expiry of two years? - HELD THAT:- Government servant shall retire on attaining the age of 60 years. Posts for which there can be extension beyond 60 years have been specifically mentioned in the Rule and there is no dispute that the post of Director of Enforcement is not mentioned in the Rule for which extension of service can be given.
There is no ambiguity in Section 25 (d) of CVC Act and the words ‘not less than two years’ simply mean a minimum of two years. There is no scope for reading the words to mean not more than two years. Reading such a restriction would be contrary to the recommendations of the Independent Review Committee and the judgment of this Court in Vineet Narain.[1997 (12) TMI 615 - SUPREME COURT] - Curtailment of the tenure of a Director Enforcement would be detrimental to the interests of officers who are appointed to the post and have service of more than two years before they attain the age of superannuation. Therefore, we hold that a Director of Enforcement can be appointed for a period of more than two years by following the procedure prescribed under Section 25 of the CVC Act.
As held that the initial appointment of the second Respondent cannot be termed to be illegal and that he had a right to continue till 18.11.2020 by virtue of his appointment for a period of two years. For all practical purposes, he should be treated as the Director of Enforcement till that particular date he was holding an office which is not below the rank of an Additional Secretary to the Government of India. Therefore, he was eligible for extension of tenure.
The material on record indicates that the extension of service of the second Respondent was pursuant to the recommendations made by the Committee constituted under Section 25 (a) of the CVC Act. One of the conditions of Section 21 is that the power has to be exercised in the like manner and subject to like sanction. Amendment was made to the earlier order of appointment by the Committee after complying with the conditions in Section 21 of the General Clauses Act.
Justification given by the Union of India for extension of the tenure of second Respondent is that important investigations are at a crucial stage in trans-border crimes. The decision to extend the tenure of the second Respondent is pursuant to the recommendation made by the high-powered committee. Though we have upheld the power of the Union of India to extend the tenure of Director of Enforcement beyond the period of two years, we should make it clear that extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases. Reasonable period of extension can be granted to facilitate the completion of ongoing investigations only after reasons are recorded by the Committee constituted under Section 25 (a) of the CVC Act.
We do not intend to interfere with the extension of tenure of the second Respondent in the instant case for the reason that his tenure is coming to an end in November, 2021. We make it clear that no further extension shall be granted to the second Respondent.
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2021 (7) TMI 1436 - SC ORDER
Requirement of pre-deposit - Availability of statutory remedy - petitioner would submit that the petitioner was in no way concerned with the affairs of the company after his resignation on 06.05.2006 much less with the agreement dated 21.06.2006. Further, even the earlier agreement was between the two companies to which the petitioner was not a signatory.
As argued Petitioner has had no causal connection with the affairs of the company at the relevant time, which is allegedly involved in the commission of FEMA violations. If that is so, the petitioner cannot be compelled to pay pre-deposit amount even if he is driven to file the statutory appeal.
HELD THAT:- Considering the arguments on both sides, in our opinion, for the stand taken by the petitioner, we direct the Appellate Authority to exempt the requirement of pre-deposit as regards this petitioner (M. Umesh), in case he resorts to remedy of appeal in light of the liberty given in terms of this order. In other words, the Appellate Authority shall not insist for pre-deposit requirement qua the petitioner herein, i.e. M. Umesh.
Besides, the appellate authority shall not non-suit the petitioner for having filed the appeal beyond limitation as the petitioner was pursuing remedy before the High Court in the first place and thereafter before this court, after issuance of show cause notice.
The petitioner through counsel assures to file the appeal within three weeks from today. If the appeal is filed beyond three weeks, the limited relief regarding limitation, in terms of this order, shall not apply and the entire limitation period be reckoned by the Appellate Authority.
The Special Leave Petition is disposed of accordingly.
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2021 (7) TMI 523 - DELHI HIGH COURT
Intimation by recipients of foreign contributions - Foreign Contribution Regulation Act, 2010 (“FCRA”) - peculiarities in the FC-4 Form, whereunder returns, regarding contributions received by beneficiaries under the Foreign Contribution Regulation Act, 2010 (“FCRA”) are required to be filed - petitioners’ accounts wherein foreign contributions were received were not in the SBI, till 7th October, 2020. As a result, the petitioners submit that it has become impossible for them to submit the return under FC-4 Form for the year 2019-2020.HELD THAT:- To a query from the Court as to how this situation could be remedied, Mr. Farman Ali, learned Counsel for the respondent, seeks a short adjournment in order to enable him to obtain instructions specifically on this aspect. However, he submits that no stay ought to be granted, as the petitioners can submit their return even after 30th June, 2021, with appropriate penalty.
This submission does not commend itself to acceptance at all.
The citizen cannot be penalised for a discrepancy in the form prescribed by the respondent which has resulted in the form being unable to be submitted even in the case of a law abiding citizen.
In view thereof, till the next date of hearing, the respondent is restrained from taking any coercive action against the petitioner for failure to file the requisite return under the FC-4 Form before 30th June, 2021.
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2021 (5) TMI 1061 - ALLAHABAD HIGH COURT
Offence under FEMA - direction to the Respondent Bank to de-freeze the account - HELD THAT:- Evident it is from the communication that it is because of the forgery of passport and initiation of an investigation by the Enforcement Directorate has resulted in freezing of the account. The petitioner for the reason best known to him has not disclosed these facts in the petition rather concealed these facts.
We are not inclined to entertain the petition where the petitioner has not come to the court with clean hands. consequently, petition fails and is dismissed.
In the present case, we refrain from imposing the cost on the petitioner and expect that the petitioner in future while filing a petition under Article 226 of the Constitution shall disclose all the relevant facts.
As we have held that the petition is not entertainable for the reason supra, we decline the prayer of the petitioner for withdrawal of petition and filing of fresh petition.
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