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Showing 341 to 360 of 1047 Records
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2011 (1) TMI 1253
Whether BIEC, an exhibition-cum-sale hall is a building where accommodation is provided for marriage or reception or matters related therewith and functions are conducted in such halls regularly or not, is a "marriage hall" within the definition of the said term under section 2(5B) liable to be impost under section 3C of the Act?
Whether letting out BIEC on hire, for exhibition-cum-sale, is a luxury, meaning services ministering to enjoyment, comfort or pleasure extraordinary to necessities of life, within section 2(4B) attracting the impost under section 3C of the Act?
Whether, in the facts and circumstances, the luxury tax levied and demanded in the notices, annexures G, G1 and L, on the rental income from hiring BIEC and for services rendered therein are legal, valid and sustainable?
Held that:- The meaning of "marriage hall" in section 2(5B) of the Act, is thus comprehended to include halls, building or part of the building where accommodation is provided for the purpose of marriage, reception or matters related therewith.There can be no rigidity that an exhibition-cum-sale hall ex hypothesi be considered to fall within the meaning of section 2(5B) of the Act. The question in each case should be, whether in the light of the cumulative facts, as established, an exhibition-cum-sale hall is a building or a part of the building where accommodation is provided for marriage or reception or matters related therewith, whether functions are conducted in such halls regularly or not? the amendment as also the decision in Godfrey Phillips India Ltd.’s case [2005 (1) TMI 391 - SUPREME COURT OF INDIA].
In the result, the petitions are allowed. The proceedings initiated by the respondents, culminating in the notices, annexures G, G1 and L, impugned, are quashed.
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2011 (1) TMI 1252
Whether in the instant case, it cannot be said that the demand made by the respondent in Indian currency towards imports cannot be considered as part of purchase price due to increased payment and therefore, he set aside the order passed by the appellate authority and restored the order passed by the assessing officer?
Held that:- From the material on record, it is not clear, what was the purchase price on the day the order was placed. It is also not clear what is the amount paid by the bank and what is the exchange rate on the date of such payment. In the absence of that crucial material it is not possible to come to any conclusion in that regard. We see full force in the submission made by the learned Government Advocate. Therefore, it would be appropriate to set aside all these orders and remand the matter back to the assessing officer so that the appellants would be free to place all relevant materials and then the assessing officer shall pass appropriate orders after carefully going through the said material. That would meet the ends of justice. Appeal allowed by way of remand.
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2011 (1) TMI 1251
Whether rate of tax on the inter-State sales of iron kamani, which is a declared commodity under section 14 of the Central Act, whether it is liable to tax at the rate of four per cent or at the rate of two per cent?
Held that:- The submission of learned counsel for the assessee, that in view of section 15(b) of the Central Act the tax has rightly been levied at the rate of two per cent is misconceived. Section 15(b) does not apply in the present case for the reason—(1) that it contemplates the reimbursement of the tax paid under the State law and (2) in the present case the assessee is the manufacturer of kamani. Kamani has not been sold at any stage in the State of U. P. and no tax was levied and paid on the turnover of kamani under the U. P. Trade Tax Act.
In the result, the order of the Tribunal is liable to be set aside and the order of the assessing authority is liable to be restored so far as it levies the tax on the inter-State sale of kamani at the rate of four per cent.
Accordingly, the revision is allowed
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2011 (1) TMI 1250
Whether the interpretation placed by the learned single judge on section 3D is correct or not?
Held that:- All the writ appeals are allowed.The interpretation placed by the learned single judge in so far as section 3D is concerned, is hereby set aside.
Consequently, all the assessment orders passed by the authorities are restored. However, the orders imposing liability prior to March 1, 2003 cannot stand and consequently, it is set aside. If there are no assessment orders passed yet, the authorities are at liberty to issue proposition notices, hear the clubs and pass the assessment orders in accordance with law
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2011 (1) TMI 1249
Whether the suit is filed within the period of limitation?
Do the plaintiffs prove that they are entitled to recover wharfage, demurrage and another charges as claimed in the plaint?
Do the plaintiffs prove that they are entitled to recover interest at the rate of 15% per annum as demanded in the plaint?
What Decree?
Held that:- Taking into consideration last free date as 18-1-1985 and the date of filing the suit as 11-1-1988 and accepting the contention that the cause of action arose on 18-1-1985 the suit is filed within the period of limitation. Accordingly, point No. 1 is answered in the affirmative.
Point No. 2 is answered in the affirmative and the plaintiffs will be entitled to recover monies as per the final order. So far as Point No. 3 is concerned, I hold that the plaintiffs would be able to recover interest at the rate of ₹ 12% per annum as per the final order. So far as the point No. 4 is concerned, plaintiffs would be entitled to decree as per the operative part.
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Thus Defendants do pay to plaintiffs ₹ 103352. 42p. Defendants do pay to plaintiffs interest at the rate of 12% per annum on ₹ 103352. 42p from 31-10-1987 till realization.Defendants do pay to plaintiffs costs of this suit.
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2011 (1) TMI 1248
Whether a benefit given by a statutory notification can be withdrawn by the Government by another statutory notification and whether the principles of promissory estoppel would be applicable in a case where concessions/rebates given by a statutory notification are subsequently withdrawn by another statutory notification? - Held that:- Appeal dismissed.The petitioners cannot raise plea of estoppel against the notification dated August 7, 2000 reducing Hill Development Rebate to 0% as there can be no estoppel against the statute.
Whether the term stipulated in the contract entered into between the petitioners and the U.P. State Electricity Board (now the Corporation) stipulating that the respondent No.2 would give 33.33% rebate to the petitioners, is legally enforceable and whether in view of the said term the respondent No.2 precluded from changing the tariff rates? - Held that:- This Court does not find any prohibition in the agreement by which the respondent No.2 was bound to give 33.33% rebate to the petitioners in all the circumstances or was precluded from changing the tariff rates. The petitioners being parties to the agreement now cannot turn around and argue that the respondent No. 2 is bound to give 33.33% Hill Development Rebate and can never change the tariff rates to the detriment of the petitioners. On the facts and in the circumstances of the case, therefore, this Court holds that the respondent No. 2 is not bound to give 33.33% Hill Development Rebate to the petitioners for the period specified in the notification irrespective of change in the tariff rates.
Whether the Court of law would be justified in interfering with the policy decision of the Government either to grant or not to grant rebate to certain industrial units? - Held that:- What is relevant to notice is that if the power to reduce the rebate to 17% is assumed to be available, then power to reduce the rebate to 0%, as is done by the notification dated August 7, 2000, is also available. The petitioners have not challenged previous judgment of the High Court wherein this Court has held that the rebate would not be available/cannot be given after coming into force of the U.P. Electricity Reforms Act, 1999. The petitioners have also not challenged the tariff rates made applicable from September 16, 2001 to March 31, 2002 vide order dated September 1, 2000 by the U.P. Electricity Regulatory Commission, wherein no rebate based on geographical area has been provided. The discussion made above makes it very clear that the petitioners have not been differently treated nor the tariff is sought to be recovered in any illegal or arbitrary manner. Under the circumstances, this Court does not find breach of the salutary provisions of Article 14 of the Constitution. As no right guaranteed to the petitioners under Article 14 of the Constitution is found to have been breached, the present petition filed under Article 32 of the Constitution cannot be entertained and the petitioners are not entitled to the reliefs claimed in the instant petition. Therefore, the petitioners are precluded from challenging notification dated August 7, 2000 withdrawing the rebate in electricity rates.
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2011 (1) TMI 1247
Addition u/s 69 of the Act - Unexplained investment – Held that:- against the claim of assessee that the amounts received as advanced were deposited with the bank-the Tribunal ordered revenue to examine the genuineness of the agreement and the transaction – since revenue examined the agreement in compliance to the direction of the Tribunal and the AO has not exceeded his jurisdiction – The summons were returned as unserved - Revenue officers deputed for examination found that no such person exists - No material was available on record to contradict the findings recorded by the Revenue about the existence of the persons who said to have given the advances - existence of the persons is doubtful and not proved the agreement as well as the transaction cannot be genuine - Decided against assessee.
Receipt as capital receipt - since this was the first year of assessment – Held:- assessee was carrying on the business from earlier without filing of the return of income - When the genuineness of the transaction as well as the agreement was found to be doubtful and the persons said to have advanced the money were not in existence the revenue rightly made the addition u/s 69 of the Act. - Decide against assessee.
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2011 (1) TMI 1246
RTI application seeking information relating to the expenditure, movable and immovable properties of the petitioner posted as District Food and Supplies Controller, Yamuna Nagar. - Held that:- The word “Third-Party” has been defined under Section 2(n) of the Act, to mean a person other than the citizen making a request for information and includes a public authority (and not otherwise). - It is not a matter of dispute that respondent No. 5-Shamsher Singh sought the information from the SPIO and it was the SIC, which directed the SPIO to supply the information, vide impugned speaking orders (Annexures P-4 and P-14). Since, the matter was between respondent No. 5, SPIO and FAA, so, the question of providing any opportunity of hearing to the petitioner, did not arise at all, as he cannot possibly be termed to be a third-party, as defined under Section 2(n) of the Act, in the obtaining circumstances of the case. If the argument of the learned counsel for the petitioner is accepted as such, then no information is permissible, which would certainly nullify the aims and objects of the Act. Therefore, the contrary arguments of the learned counsel for the petitioner “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. - information under TRI to be provided - Decided against the petitioner.
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2011 (1) TMI 1245
Transfer pricing adjustment - Pre-operative expenses - Held that:- The assessee has incurred expenditure from 1.1.2004 to 14.3.2004 i.e. after entering into agreement with AE on 1.1.2004 and this amount is liable for mark up at 10% because no customer would pay mark up before entering into agreement - The expenditure incurred after agreement only has to be mark up - The Revenue has not brought any material on record to show that the assessee has incurred any expenditure before entering into service agreement on the impugned issue - Decided against Revenue.
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2011 (1) TMI 1244
Amount accrued but not received - Accrued interest on securities – Held that:- The decision in DCIT (International Taxation) vs. Bank of Bahrain and Kuwait [2010 (8) TMI 578 - ITAT, MUMBAI] followed – the interest accrues only on the coupon dates and not on day to day basis - Union Bank of India cannot be prevented from urging in the return that the interest on govt. securities accrued only on the specified coupon dates notwithstanding that credit has been taken in the profit & loss account for the interest on day to day basis – Decided in favour of Assessee.
Disallowance of loss on unmatured foreign exchange contracts – Held that:- The decision in DCIT (International Taxation) vs. Bank of Bahrain and Kuwait [2010 (8) TMI 578 - ITAT, MUMBAI] followed – Forward Foreign exchange contract means an agreement to exchange different currencies at a forward rate. Forward rate is a specified rate for exchange of currency at a specified date. The assessee enters into forward contract with clients to buy or sell foreign exchange at an agreed price at a future date in order to hedge against the possible future financial loss on account of wide fluctuation in the rate of foreign currency - where a forward contract is entered into by the assessee to sell the foreign currency at an agreed price at a future date falling beyond the last date of accounting period, the loss is incurred to the assessee on account of evaluation of the contract on the last date of the accounting period i.e. before the date of maturity of the forward contract – Decided in favour of Assessee.
Reduction of claim of bad debt u/s 36(1)(vii) of the Act – Held that:- The decision in Oman International Bank, SAOG vs. DCIT [2003 (11) TMI 286 - ITAT BOMBAY-H ] followed - The deduction s. 36(1)(vii) is only supplemental in nature inasmuch as it comes to the play only when, and is admissible to the extent, the provision for bad and doubtful debts allowed u/s 36(1)(viia)(b) falls short of the actual bad debts written off as irrecoverable – thus, the AO is directed to allow deduction u/s 36(1)(vii), without taking into account the admissible deduction u/s 36(1) (viia)(b) for the relevant previous year which can only be taken into account for computing deduction u/s 36(1)(vii) for subsequent year(s) – Decided partly in favour of Assessee.
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2011 (1) TMI 1243
Disallowance of Cenvat credit - Utilization on the strength of the fake invoices issued by their supplier - reasonable steps to be taken - Imposition of penalty - Held that:- evidence on record indicates that the appellant was really engaged in the manufacturing activities and for the manufacture of the finished goods they needed copper rod/copper wire. Therefore, it cannot be said that copper rod/copper wire had not ever been received in their factory. The evidence brought on record shows that the copper rod/copper wire were received by them from their (the appellant’s) job workers after the job workers had converted the same from the ingots. But the crucial question is whether the ingots which were received by the job workers were also of duty paid nature and whether the same were really covered by the invoices issued by M/s. VKM (VKMW).
Impugned order has admitted itself that the goods in question (i.e. copper ingots) had been received by the appellant in the form of copper rod/copper wire after being converted (from copper ingots) by their job workers who had directly received the said copper ingots on these invoices from M/s. VKMW on behalf of the appellant. Further it has also been admitted in the impugned order that the appellant had discharged its contractual liability by making payment of these invoices through banking channel by cheques.
Neither the show cause notice alleges any other source of procurement of the said copper ingots, received under these invoices nor the impugned order found any other source of procurement of such copper ingots. The provisions governing the availment of the credit envisages that the assessee availing the credit should ensure that the inputs should have suffered duty at the hands of the manufacturer and the inputs covered under the invoices have been received and the same have been utilized in the manufacture of their final goods.
Appellant therefore, cannot be asked to go beyond the duty payment document in his hand. The appellant had checked the authenticity of the invoice issued by the manufacture and the latter is registered with the Central Excise. Thus, I find that the appellant have taken due care while procuring the duty paid inputs. Therefore, the Cenvat credit may not be disallowed on such inputs i.e. copper ingots received against these invoices simply on the ground that the goods were not the same. Thus, and impugned order is devoid of merit and the same is not sustainable - Following decision of M/s. Manaksia Ltd. v. C.C.E., Rajkot [2008 (6) TMI 149 - CESTAT AHEMDABAD] and C.C.E, Chandigarh v. Hitkari Industries Ltd. [2008 (2) TMI 124 - CESTAT, NEW DELHI] - Decided in favour of Appellant.
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2011 (1) TMI 1242
Disallowance of expenses – Expenses incurred on interior decoration, extension and renovation of various buildings on lease – Held that:- The expenditures are on the interior decorations and creation of the office atmosphere - The expenditure has not resulted in any building coming into existence nor has the existing building been modified or the structure altered - As the existing building has not been altered and there is no change to its structure as a result of the expenditure incurred by the assessee, it cannot be said that the expenditure incurred by the assessee is in the capital field - the expenditure on the repairs and maintenance in the form of electrical fittings, electrification, cabinet, work station, partition, cupboard, stand etc. are liable to be treated as a revenue expenditure – Order of the CIT(A) reversed – also the depreciation as allowed by the Assessing Officer on the said expenditure which has been capitalized would stand reversed – Decided in favour of Assessee.
Enhancement of disallowance made u/s 14A of the Act r.w Rule 8D of the Rule – Held that:- The decision in GODREJ AND BOYCE MFG. CO. LTD. Versus DEPUTY COMMISSIONER OF INCOME-TAX AND ANOTHER [ 2010 (8) TMI 77 - BOMBAY HIGH COURT] followed - no deduction shall be allowed in respect of expenditure incurred by the assessee in relation to such income which does not form part of the total income under the Act, by virtue of the provisions of Section 14A(1) - the issue of enhancement has not been challenged by the assessee - the issue of disallowance by application of sec. 14A is restored to the file of the Assessing Officer for re-adjudication.
Deletion made for prior paid expenses – Computation of book profits u/s 115JB of the Act – Held that:- The decision in CIT v. Khaitan Chemicals And Fertilizers Ltd [2008 (9) TMI 89 - DELHI HIGH COURT] followed - the net profit (as referred to in Section 115 JA) of the assessee company is to be computed only after deducting the expenses on prior period / extraordinary items which are business expenditure –the expenses which have been disclosed as for prior period items/extra-ordinary items are part of the profit & loss account and properly deductible in computing the book profits – the order of the CIT(A) upheld – Decided against Revenue.
LTA treated as benefit granted to employees – Liability to pay Fringe benefit tax – Held that:- The LTA is treated as a perquisite and part of the salary and TDS has also been deducted therefrom, in view of the circular issued by the CBDT the same is not liable for the Fringe Benefit Tax – order of the CIT(A) set aside – Decided in favour of Assessee.
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2011 (1) TMI 1241
Transfer of share in favour of NRI - Permission for such transfer was not obtained from RBI - Compounding of offence by RBI - Imposition of penalty - Held that:- offence has taken place when FERA was in force as it is clearly reflected by the letter of RBI who refused to entertain the application for compounding stating that the violation is under FERA and the provision of compounding was not there under the said Act. The compounding is permissible only under the provisions of FEMA. The show cause notice in the present case is issued on 20th May, 2009 i.e. after the expiry of 2 years of sun set period provided under Section 49(3) - violation has taken place when FERA was in force and therefore under Section 49(3) of FEMA it was necessary for the Directorate Enforcement to take notice of the said violation before 31st May, 2006 i.e. before expiry of sun set period. As the show cause notice was issued in 2009 for violation of provision of FERA the same cannot be set to be within limitation and in accordance with law - Decided in favour of appellant.
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2011 (1) TMI 1240
Demand of information - Petitioner instead of supplying information arbitrarily asked for extra fees - Appellate authority directed petitioner to supply documents free of costs - Held that:- there is a provision under the Act/Rules, vide which, the SIC can direct the petitioner-SPIO to supply the information free of costs to Respondent - SPIO did not comply with the time-limits specified in sub-section (1) of Section 7 of the Act and did not supply the information, despite specific order/letter (Annexure P3/T) of FAA. In that eventuality, the SIC was within its jurisdiction to direct the petitioner-SPIO to supply the information free of charges, vide impugned order - Decided against Petitioner.
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2011 (1) TMI 1239
Violation of Section 9(1)(b), 9(1)(c) and 9(1)(d) of FERA - Imposition of penalty - Confiscation of seized money - Admissibility of evidence - Held that:- Adjudicating Authority has recorded statement of Smt. Gurmej Kaur who in her statement admitted that her husband is staying at Dubai and the documents (loose sheets and diary) is written in the handwriting of her husband who alone can explain the same regarding recovery of Rs. 65,000/- seized from her resident - Smt. Gurmej Kaur did not retract with her statement. Apart from that statement of Narinder Singh are also on record in which he has admitted that he has paid a sum of Rs. 2,30,000/- to Smt. Gurmej Kaur. Thus, her statements are corroborated by the statement of Narinder Singh to that extent and thus, receipt of Rs. 3,30,000/- is proved. Apart from that statement of Gulzar Singh, Kuldip Kaur, Surinder Kaur, Harmesh Lal, Gurdev Singh Fauji, Piara Lal, Rattan Singh, Pushapawati of Ludhiana are on record. These persons shows that the appellant has paid a sum of Rs. 8,37,000/- to these persons at different time in different amount.
Thus, there is ample evidence on record to show that Harbhajan Singh was involved in selling of foreign exchange without permission of Reserve Bank of India (RBI) and he sold foreign exchange to the tune of Rs. 8,57,000/-. However, there is no evidence on record to show that the appellant has disbursed a sum of Rs. 1,35,28,275/-. As the loose papers recovered from his house, appellant does not fall with Section 34 of the Evidence Act which provides that entries in a Book of Account recovery kept in the course of business are admissible in evidence. The entries in the diary and the loose sheets cannot be said to be account kept in regular course of business and, therefore they are not admissible in evidence - Penalty reduced - But confiscation sustained - Decided partly in favour of Appellant.
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2011 (1) TMI 1238
Estimation of profit - Held that:- On examination of the books of account with reference to the voucher produced, the Assessing Officer found that the voucher does not tally with the cashbook - When the voucher does not tally with cashbook, the book results will not reflect the correct profit of the assessee - The Assessing Officer has rightly rejected the books of account.
When the books of account were rejected the only method available to the Assessing Officer is to estimate the profit - The profit ratio cannot be a constant factor for each and every year - Tribunal has been uniformly estimating the profit from main contract at 8% to 12.5% depending upon the factual situation and 5% to 7% on the sub contract depending upon the factual situation.
Seiniorage charges - Held that:- Following Brij Bhushanlal [1978 (10) TMI 2 - SUPREME Court] - The material supplied by the Government/contractor will not have any element of profit - The same shall be reduced from the contract receipts.
Depreciation - Held that:- By Finance (No.2) Act of 2009 with effect from 1.4.2011 - The restriction of the total contract receipts of ₹ 40 lakhs has been removed - The deduction available u/s 30 to 38 shall be deemed to have been already given full effect and no further deduction under those sections shall be allowed - Decided against assessee.
Interest and salary to partners - Held that:- In view of the amendment made u/s 44AD which has been made effective from 1.4.2011 - The Legislature intended to allow the interest and salary separately from the estimated income - Salary and interest paid to the partner shall be deducted from the income computed under subsection (1) of section 44AD subject to limitation u/s. 40(b) of the Act - Decided in favour of assessee.
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2011 (1) TMI 1237
Issues:
1. Violation of Section 9(1)(a) of FERA.
2. Opportunity for cross-examination in FERA proceedings.
3. Nature of proceedings under FERA - civil or criminal.
4. Imposition of penalty based on preponderance of probabilities.
Detailed Analysis:
1. The appeals were filed against an Adjudication Order imposing a penalty for violating Section 9(1)(a) of FERA. The case involved misuse of provisions related to remittances of foreign exchange, where individuals were accused of depositing black market foreign exchange into NRE Accounts. The appellants admitted receiving cheques without RBI permission, leading to the penalty imposition by the Adjudicating Authority.
2. The issue of the right to cross-examine witnesses was raised, alleging a violation of natural justice. While the appellants contended for this right, the Tribunal noted that they had admitted receiving the cheques and had opportunities for personal hearings but chose not to cross-examine witnesses. Citing precedents, the Tribunal concluded that by not attending the personal hearing, the appellants waived their right to cross-examination.
3. The nature of FERA proceedings was debated, with one party arguing for quasi-criminal status based on a Supreme Court judgment. However, the Tribunal referenced various judgments, including Director of Enforcement v. MCTM Corporation Pvt. Ltd., to establish that FERA proceedings are civil in nature. The Tribunal emphasized that penalties are imposed for civil breaches, not criminal offenses, based on preponderance of probabilities.
4. Considering the lack of evidence regarding a relationship between the appellants and the individual issuing the gift cheques, the Tribunal inferred that the appellants likely made payments to convert black money into white. The Tribunal held that without a plausible relationship, the appellants violated Section 9(1)(a) of FERA by receiving gifts, leading to the dismissal of all appeals and upholding the penalty imposition.
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2011 (1) TMI 1236
Issues:
Violation of Section 8(3) of FERA - Imposition of penalty
Issue 1: Violation of Section 8(3) of FERA - Imposition of penalty
The appeal was filed challenging the order imposing a penalty of Rs. 12,000 on the appellant for the alleged violation of Section 8(3) of FERA. The facts of the case revealed that foreign currency was seized from the residential premises of the appellant, who claimed to have acquired it for a business promotion tour from Authorized Dealers. The appellant stated that he was abroad from 18-3-1992 to 18-8-1992 and was required to surrender the foreign exchange within 90 days from the date of return, as per a Notification issued by the Reserve Bank of India.
The Directorate of Enforcement contended that as per Notification No. FERA/73/88-RB, unutilized foreign exchange should be surrendered within 90 days from the date the individual becomes aware that it cannot be used. The raid was conducted within 10 days of the appellant's return from the foreign tour, falling within the stipulated period. However, it was argued that in such circumstances, the appellant could not be held guilty of violating Section 8(3) of FERA.
The appellate tribunal, chaired by Justice Subhash Samvatsar, found that the appellant could not be deemed to have contravened Section 8(3) of FERA, and that the penalty imposed by the Directorate of Enforcement was erroneous. Consequently, the appeal was allowed, the impugned order was set aside, and the penalty amount deposited by the appellant was directed to be returned to him.
This detailed analysis provides a comprehensive overview of the legal judgment, focusing on the issue of violation of Section 8(3) of FERA and the subsequent imposition of a penalty. The summary encapsulates the key arguments, findings, and the ultimate decision rendered by the appellate tribunal, ensuring a thorough understanding of the case.
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2011 (1) TMI 1235
Issues:
Violation of Section 9(1)(b) and 9(1)(d) of FERA - Imposition of penalty based on retracted statement and corroborating evidence.
Detailed Analysis:
The judgment by the Appellate Tribunal for Foreign Exchange, New Delhi pertains to two appeals against an order passed by the Special Director of Enforcement, Bombay, imposing a penalty on the appellant for violating Section 9(1)(b) and 9(1)(d) of FERA. The case involved the appellant depositing a significant amount in a fictitious account, allegedly on behalf of a resident of Dubai, thereby breaching FERA provisions. The appellant contested the charges, claiming that his statement was obtained under duress and retracted, citing the Apex Court's ruling in Vinod Solanki v. Union of India.
The appellant argued that his retracted statement, the basis for the penalty, was coerced during custody by the Enforcement Directorate, rendering it unreliable. The Adjudicating Authority, however, relied on this statement, suggesting self-inflicted injuries to explain the retraction. The Tribunal highlighted the burden on the department to prove the voluntary nature of statements recorded in custody, as per the Vinod Solanki case. In this instance, the department failed to demonstrate the statement's voluntariness, undermining its validity as evidence.
Furthermore, the Tribunal scrutinized the corroborating evidence, emphasizing the necessity of supporting the retracted statement. The raid on the appellant's premises yielded no incriminating documents, raising doubts about the search and seizure procedures. The appellant's defense regarding the ownership of the premises and the documents found therein added complexity to the case. Despite the appellant's attempt to discredit the seized documents, Section 72 of FERA presumes the authenticity of such documents unless proven otherwise.
Ultimately, the Tribunal concluded that the retracted statement, when substantiated by the recovery of bank deposit slips, validated the charges against the appellant. The corroborative evidence indicated the appellant's involvement in depositing funds on behalf of a Dubai resident, aligning with the alleged FERA violations. Consequently, the Tribunal upheld the penalty imposed by the Adjudicating Authority, dismissing both appeals for lack of interference in the impugned order.
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2011 (1) TMI 1234
Issues:
Challenge to order dropping proceedings for violation of FERA, Competency of Deputy Legal Adviser to file revision on behalf of Director of Enforcement.
Issue 1: Challenge to order dropping proceedings for violation of FERA
The appeal before the Appellate Tribunal for Foreign Exchange, New Delhi involved a revision filed by the Deputy Legal Adviser for the Director of Enforcement challenging an order passed by the Addl. Director General, DGICC, Enforcement Directorate, New Delhi. The order in question, dated 6-10-2004, dropped the proceedings against the respondent for violation of the provisions of the Foreign Exchange Regulation Act, 1973 read with Section 49(3) of FEMA, 1999. The facts of the case revealed that the appellant and a co-noticee were served with a Show Cause Notice for the alleged violation, but the proceedings against the co-noticee were dropped as he was not served due to being in the USA. However, the proceedings against the appellant were also dropped on the grounds that the department did not provide copies of the documents relied upon in the Show Cause Notice. The appellant contended that this order was illegal and contrary to law.
Issue 2: Competency of Deputy Legal Adviser to file revision on behalf of Director of Enforcement
The second issue raised in the appeal was the competency of the Deputy Legal Adviser to file the revision on behalf of the Director of Enforcement. The respondent's counsel argued that the Deputy Legal Adviser lacked the authority to file the revision. In support of this argument, reference was made to a judgment of the Delhi High Court in the case of M/s. M. I. Enterprises v. Director of Enforcement, where it was held that the Deputy Legal Adviser of the Director of Enforcement did not have the authority to file a revision before a specific date. This argument was further supported by citing a judgment of the Tribunal in the case of J.K. Jain v. Director of Enforcement, where a similar view was upheld. Based on the precedents and legal interpretations, the Tribunal concluded that the appeal was not maintainable due to the lack of authority of the Deputy Legal Adviser to file the revision on behalf of the Director of Enforcement and consequently dismissed the appeal.
In conclusion, the Appellate Tribunal for Foreign Exchange, New Delhi, addressed the issues of challenging the order dropping proceedings for violation of FERA and the competency of the Deputy Legal Adviser to file the revision on behalf of the Director of Enforcement. The Tribunal found the order dropping proceedings to be legal and dismissed the appeal based on the lack of authority of the Deputy Legal Adviser to file the revision.
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9911796707
