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2008 (7) TMI 835 - HC - FEMAWhether the amount recovered which was a case property could be handed over by the S.H.O. to the Assistant Director, Enforcement Directorate, FEMA without the orders of the Court? Whether the Enforcement Directorate was justified in releasing the amount to the accused which was a case property of case of FIR No.311 dated 27.04.2001 registered at Police Station Sadar, Jalandhar under Sections 411/414 IPC read with Section 3(b) and 3(c) of FEMA Act, 1999? Held that:- There was a violation of provisions of FEMA Act and under Enforcement Directorate had to act and penalty imposed by him was a consequence to the act of the petitioners who had received cash amount from abroad through channels which were not permissible, but it does not absolve petitioners as the amount so received was to be declared before the Income Tax Authorities. Non-declaration of the amount will amount to evasion of tax and Income Tax Authorities are within their right to proceed under Income Tax Act in accordance with the provisions of law. Orders Annexures P-6 and P-7 are perfectly legal and no interference is called for, but by a flux of time, ground realities and circumstances may have changed. In case, trial of FIR No.311 dated 27.04.2001 has concluded, the petitioners may have been convicted or acquitted. This will change the rigor of the direction that amount of ₹ 7,81,000/- be deposited back. Furthermore, in case, Income Tax Authorities had assessed the amount and imposed the penalty, the requirement of depositing the amount of ₹ 7,81,000/- will also lose its sting, in case the penalty and the income tax assessed has been deposited. Therefore, even though have held that the impugned orders are perfect and legal taking various facts mentioned above, still there is scope for variance in the directions to deposit the amount. Accordingly, remand the matter back to the Court of Additional Chief Judicial Magistrate, Jalandhar, to take into consideration the outcome of trial in case FIR No.311 dated 27.04.2001 and proceedings before Income Tax Authorities.
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