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FEMA - Case Laws
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- 2019 (10) TMI 1210
Offence under FERA - fraud on the banking system - mens rea is an essential ingredient as the FERA proceedings - As alleged officers responsible for conduct of the company were ‘negligent' - non specified SCN - HELD THAT:- Show Cause Notice must necessarily establish that the concerned officer was incharge of, and responsible for conduct of the company and further, spell out the offence committed by such officer. Only certain junior officers have been namedin the SCNs who can under no circumstances be said to be incharge and responsible for the bank or for conduct of its business. Further, onus to prove that a person was responsible for conduct of business of company is on the Department, which it has failed to discharge. In the impugned Orders Mr. Rajgopalan Ramkumar, Mr. Sunil G. Sawant, Mr. R.B. Dhage, Mr. Allwyn Roche, Mr. P....... + More
- 2019 (10) TMI 672
Violation of provisions under FCRA, 1976 - foreign contribution received by the respondent-petitioner - HC quashed the FIR - HELD THAT:- The impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 Cr.P.C., the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegtions made by the appellant-C.B.I., and the defence put-forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C. The assessment made by the High Court at this stage, when the matter has been taken cognizance by the Competent Cou....... + More
- 2019 (10) TMI 175
Sh. P. Chidambaram seeks bail - proposal for downstream investment - Petitioner, the then Finance Minister, Sh. P. Chidambaram approved the downstream proposal of INX News on 30.10.2008 - FIR alleging commission against Sh. Karti P. Chidambaram [arraigned as accused No. 3 in the said FIR under Section 120-B read with Section 420 of Indian Penal Code, 1860, Section 8 of the Prevention of Corruption Act, 1988 (hereinafter referred to ‘PC Act’) and Section 13(2) read with Section 13(1)(d) of the PC Act.] HELD THAT:- As petitioner instead of joining the investigation approached this Court seeking anticipatory bail and this Court was pleased to pass an interim order protecting the petitioner from arrest. Pursuant thereto, when the petitioner was called for interrogation under the protective umbrella of a pre-arrest bail reducing th....... + More
- 2019 (10) TMI 174
Canara Bank abetted in the illegal and unauthorized dealing of foreign exchange - penalties against the appellants for the contravention of Sections 6(4), 6(5) r/w Sections 49, 8(1), 9(1)(a) and 9(1)(e) along with Para 10.3 (ii) - HELD THAT:- It is stated that from a conjoint reading of the facts and the definitions that there was neither any commission nor any omission on the part of the Appellant. Cheques issued by BFEA on an account maintained with Canara Bank were presented in the normal course of clearing and these cheques were honoured by Canara Bank. Canara Bank did not know at that point of time that the proceeds of those cheques would be remitted abroad after being credited to a convertible rupee account maintained at the ANZ Grindlays Bank. In any event the Canara Bank had nothing whatsoever to do with the crediting of money to ....... + More
- 2019 (10) TMI 173
Sum acquired/possessed/held/owned outside India with LGT Bank without any General or Special permission of RBI - contravention alleged by invoking presumption under section 39 of FEMA, 99 - presumption of documents. - Penalty enhanced - Power of special director in the absence of appeal from Revenue side - HELD THAT:- It is stated on behalf of appellants that before the Special Director, the Appellants reiterated their contentions, in addition to submitting that the conclusion of guilt against the appellant is based on no material and that the order passed is perfunctory without application of mind and even contrary to show cause notice where the theory of 1/4th of amount was not even alleged, but the Special Director affirmed the order of the Adjudication Authority on his self-innovated and imaginary reasoning, neither based on any evide....... + More
- 2019 (9) TMI 940
Contravention of Regulation 7 of Foreign Exchange Management (Acquisition and Transfer of Immovable property in India) Regulations, 2000 - Confiscation of 8 flats and five car parking - penalty under section 13(2) of the FEMA Act - HELD THAT:- National of the countries specified under Regulation 7 of the Regulations can acquire or transfer immovable properties in India, provided that such a person obtains the requisite permission from the Reserve Bank of India. If the national so fails to apply for such a permission, the Reserve Bank of India has the power to accord an ex post facto permission with regards to the said transaction. The transaction in question is not a commercial transaction; as a matter of fact the Appellant still resides in the Flats. The Flats were purchased by Indian Rupees, out of monies earned in India on which Income....... + More
- 2019 (9) TMI 666
Purchase of property in India - Individual arrived in India on Business Visa - “Person resident in India” as contemplated under Section 2(v) of the Foreign Exchange Management Act, 1999 - THAT:- Appellants residing in India for more than 182 days in the previous financial year at the time of setting up of business and purchase of property in India. Thus, they satisfied the definition of the term “Person resident in India” as contemplated under Section 2(v) of the Foreign Exchange Management Act, 1999 and therefore there was no impediment to purchase and hold property in India nor did they require any permission from the Reserve Bank of India to purchase immovable property or to set up any business in India. The property was purchased on 01.09.2009 more than a year after they entered India under a valid Visa. It is ....... + More
- 2019 (9) TMI 180
Fastening liability on a director of a company for contravention of the FERA - Offences by companies - ‘Opportunity Notice’ - HELD THAT:- The adjudication proceedings are being pursued by the ED on the basis that each of the present Appellants was at the relevant time, “in charge of”, and “responsible to” NIL for the conduct of its business. There can be no doubt that the above standard for fastening liability on a director of a company for contravention of the FERA, applies to both criminal proceedings that would result following an ‘Opportunity Notice’ as well as the adjudication proceedings that would follow an SCN/MFA issued under Section 51 FERA. The foundational fact that requires to be shown to exist for proceeding against a person under Section 51 of the FERA read with Section 68 (1)....... + More
- 2019 (9) TMI 162
CBI investigation for violation of provisions of FCRA - Cancellation of registration under FCRA - diversion of the funds for personal benefit of the office bearers or any other individuals - Constitutional validity of Section 43 of the Foreign Contribution (Regulation) Act, 2010 (‘FCRA’) and Rule 22 of Foreign Contribution (Regulation) Rules, 2011 (FCRR) - whether they are arbitrary, unreasonable, ultra vires and violative of Articles 14 and 21 of the Constitution of India? HELD THAT:- It is equally well settled principle of law that laws are not to be declared unconstitutional on the fanciful theory that power would be exercised in an unrealistic fashion or in a vacuum or on the ground that there is a remote possibility of abuse of power. In fact, it must be presumed, unless the contrary is proved, that administration and app....... + More
- 2019 (9) TMI 161
Guilty of contravention of the provisions of Section 26(7)(i)(ii) of FERA 1973 - Penalty imposed on directors - dealing between a FERA Company and ‘a Person resident in India’ (which could only be an individual) - arrangement between two bodies corporate - whether amount given by LIL to HLL can neither be treated as a ‘loan’ or ‘deposit’? - HELD THAT:- Scope of “person resident in India”, it cannot be held that the amount given by LIL to HLL in the aforesaid circumstances was not ‘bonafide’ and that the Company did not act under an ‘honest and genuine belief’ that it was permissible to do so. Nor can it be said that the company ‘acted deliberately in defiance of law’ or were ‘guilty of conduct contumacious or dishonest’ or ‘acted in consc....... + More
- 2019 (8) TMI 971
Non-compliance with the direction for pre-deposit - Offence under FEMA - HELD THAT:- The learned counsel for the respondent had earlier taken exception to the maintainability of these appeals at the outset, his submissions having been recorded in the proceedings on 11.07.2019 to the effect that the appellants are belated with reference to the order dated 15.11.2018 which, even otherwise, had not been challenged, the orders sought to be impugned by these appeals being only consequential. At the hearing, the counsel for the appellants was asked if they are now willing to make the pre-deposits as was directed by the appellate tribunal by its order dated 15.11.2018. The counsel answered in the negative taking the position that the appeals at hand raise questions of law. The order dated 15.11.2018 having attained finality, the appellate tribun....... + More
- 2019 (8) TMI 683
Hawala transactions - Contravention of provisions of Section 3(b) and Section 3(c) of FEMA, 1999 - allegation based on statement of various persons - submission of the appellant was that the appellant has been wrongly implicated in the case and nothing was seized or recovered from his possession - HELD THAT:- The impugned order has alleged that he received money (Indian currencies) from some other people some of whose name are Poonam, Getha, Raja Ram, Devidoss, Jaloor etc. who in turn has arranged this money from people from abroad. Thus, it appears that the impugned order has not established the appellant receiving the money directly from abroad. Moreover, there is no restriction on circulation of Indian money within the country, at least under FEMA - the department has not investigated those people who are Indians and who have delivered....... + More
- 2019 (8) TMI 682
Acquiring and transferring foreign exchange equivalent to ₹ 208 crores without the prior general or special permission of the RBI - Section 8(1) of FERA, 1973 - allegation is made that M/s. THL have not provided any documents to prove the source of funds which they have invested/remitted to M/s. Sterlite Industries (India) Limited etc. in India and because some of the Directors are common to both the companies, it has been held that this money has actually been funded by M/s. Sterlite Industries (India) Limited to M/s. THL and then back to M/s. Sterlite Industries (India) Limited. HELD THAT:- There is no prima facie evidence, documentary or otherwise on which the adjudicating authority has relied upon to conclusively prove the above charges. Whether there is a round tripping of funds, the interests of the common Directors in each of....... + More
- 2019 (8) TMI 681
Restoration of appeal - appeal was dismissed on time limitation as well as for non-compliance with the pre-deposit - HELD THAT:- That Delhi High Court’s order, clearly mentions only two appeals i.e. 475 and 543 of 2004 of having being remanded to the AT. There is no such order with regard to the other two appeals i.e. 473 and 488 of 2003 and hence it was legally required for the appellants to have filed, if they so desired, a proper restoration of appeal applications with valid grounds and reasons. As discussed above, they have failed to do so either in their applications or during the hearing - the restoration of appeals applications in appeal No. 473 & 488 of 2003 is dismissed as rejected as is without any grounds and substance. Other two appeals i.e. 475 & 543 of 2004 which has been remanded by the Hon’ble Delhi Hig....... + More
- 2019 (8) TMI 266
Imposition of penalty by Special Director - contravention of Sections 8(1) & 9(1)(a) of FERA, 1973 and Sections 9(1)(f)(i), 8(1) & 9(1)(a) of FERA, 1973 - unlawful detention - initiation of adjudication proceedings as contemplated under Section 51 FERA, 1973. HELD THAT:- The Adjudicating Authority has not been taken into account in the Impugned Order that prior to the Notification dated 31.07.1995, the position was that foreign currency could be deposited in NRE Accounts by power of attorney holders of NRIs. That being the case the necessary ingredients to make out the violations under Sections 8(1), 9(1)(a) and 9(1)(f) of FERA are not made out - It is rightly stated that in the Impugned Order proceeds on the erroneous premise that the foreign exchange deposited in the NRE Accounts of Mr. V.D. Jaiswal were deposited by the Appella....... + More
- 2019 (8) TMI 265
Maintainability of the appeal - Section 19 of the Foreign Exchange Management Act, 1999 - appeals were fixed for orders when there is a difference of opinion - HELD THAT:- There is no dispute that the impugned orders are interlocutory orders and these orders are passed during the course of inquiry proceedings as provided under the Act and Rules thereto. The object of Section 19 (1) is to give a right to appeal to a party aggrieved by an order which affects the party’s right or liability. If the present type of orders are allowed to be agitated than there will be no end to litigation and the very purpose of the relevant provisions and intention of the legislature would be defeated. The scope of the words “an order” of Adjudicating Authority is not as wide as “any order” or “every decision or order”....... + More
- 2019 (8) TMI 247
The appellants has not filed affidavit with proof of dasti service upon sole respondent - HELD THAT:- Two weeks time is granted to learned counsel for the appellants to file affidavit with proof of dasti service.
- 2019 (8) TMI 216
Remedy of instituting an appeal to the Special Director (Appeals) - impugned order was served upon Petitioners by pasting on the premises sometime on 23rd February, 2019 and this Petition was lodged in the first week of May, 2019 - time limitation - HELD THAT:- If any issue of limitation arises, we are sure that the Appellate Authority will give due regard to all these circumstances. However, since the Petitioners haves alternate and efficacious remedy available under the FEMA itself, we are not inclined to entertain this Writ Petition. This Petition is disposed of by granting liberty to the Petitioners to institute an appeal against the impugned order, in case the Petitioners so choose. All contentions of the Petitioners are expressly kept open, since we have not examined the merits of the matter.
- 2019 (8) TMI 215
Maintainability of petition - Petition by a person who refuses to subject himself to Indian Laws - whether the Writ Court should exercise its jurisdiction in case of a Petitioner who has been issued a non-bailable warrant by the Special Court under the Prevention of Money Laundering Act, 2002 (PMLA) - HELD THAT;- This Court by its [2018 (2) TMI 762 - BOMBAY HIGH COURT] rejected the above contention and entertained the Petition by this very petitioner. We are informed that the status and condition of the Petitioner viz-a-viz Indian Law continues to remain what it was on 30th January, 2018 i.e. no red corner notice has yet been issued in respect of the Petitioner. These facts are not disputed and distinguished by the Revenue. Thus, this issue having already been considered by a coordinate bench of this Court and no new facts have thereafter....... + More
- 2019 (8) TMI 214
Maintainability of petition - initiation of proceedings u/s 7(3) of the Foreign Exchange Management Act, 1999 - availability of alternative and efficacious remedy of appeal - HELD THAT:- It is not in dispute that the proceedings are initiated by the Adjudicating Authority under Section 7(3) of the FEMA and the impugned order passed by the Adjudicating Authority on 31.8.2017 exercising the powers under Section 13(1) of the FEMA. Therefore, the petitioners have got an alternative and efficacious remedy of appeal before the Appellate Authority under Section 17 of the FEMA - Section 17(4) clearly depicts that on receipt of an appeal under sub-section (1), the Special Director (Appeals) may after giving the parties to the appeal an opportunity of being heard, pass such order thereon as he thinks fit, confirming, modifying or setting aside the ....... + More
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