9911796707
TMI Blog2014 (10) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... PL') purchased a farm house and land situated at Mehrauli in New Delhi by 12 registered sale deeds dated 2nd March 1995 from Apaar Construction Private Limited ('ACPL') whose director Mr. Rakesh Jain is the Appellant in Criminal Appeal No. 630 of 2008. The sale consideration of Rs. 23,76,000 was paid by 12 pay orders of Rs. 1.98 lakhs each and the balance Rs. 1,51,24,000 was paid in cash to Mr. Rakesh Jain by some unknown persons on behalf of Mr. Som Chai Chai Sri Chawla (the Appellant in Criminal Appeal No. 818 of 2008) who is a resident of Bangkok, Thailand. Mr. Ravinder Jain and Mr. Sri Chawla (Appellants in Criminal Appeal Nos. 756 and 818 of 2008 respectively) were Directors of OEPL. 3. On 24th June 1995 in response to summons issued to him under Section 40 FERA, Mr. Rakesh Jain made a statement purportedly admitting to having received the 12 pay orders for Rs. 23,76,000 and cash of Rs. 1,51,24,000 from unknown persons on behalf of Mr. Sri Chawla. He claimed to have been introduced to Mr. Sri Chawla by one Mr. L.R. Madan. The statement of Mr. Madan under Section 40 FERA was recorded on 26th June 1995. Mr. Sri Chawla gave a declaration on 1st March 1997 at the Emba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actions. He also was not an active Director in OEPL. 7. The stand of Mr. Sri Chawla was that there were inconsistencies in the two statements of Mr. Rakesh Jain and himself. Their statements were also contradicted by the statement of Mr. L.R. Madan who stated that Rs. 3 crores had been given by Mr. Sri Chawla to Mr. Rakesh Jain in March 1995. The Adjudication Order 8. The SD passed the AO on 6th January 2000 exonerating the three Appellants for the following reasons: (a) In his statement dated 24th June 1995, Mr. Rakesh Jain had claimed that Rs. 1,51,24,000 had been received by him in cash in two to four instalments in the last week of February 1995 at his residence through some unknown persons on behalf of Mr. Sri Chawla. This was done without any receipt being issued to the persons who gave him the cash. On 7th August 1999 he stated that he had nothing further to add. Mr. Madan, the property broker in his statement dated 26th June 1995 stated that one Dr. Seth had approached him in February 1995 to find a farm house for Mr. Sri Chawla and that he had introduced Dr. Seth to Rakesh Jain. According to him, the property was purchased by Mr. Sri Chawla in the name of OEPL and apar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up for hearing before the AT, one of the first questions to be considered was whether the revision petitions were at all maintainable. This was the first objection taken by the Appellants herein in the revision petitions. It was pointed out that under Section 49(5) FERA, a revision petition which was filed when FERA was in force would not automatically continue under the FEMA. 13. The AT rejected the above contention by referring to Section 49(6) FEMA which brings in the application of Section 6 of the General Clauses Act, 1897 ('GC Act') and held that although under Section 49 (5) (b) it is not expressly stated that the revision petitions would continue, the continuation of such a petition was implicit on a reading of the provisions of FEMA as a whole. 14. It was further held by the AT that since the revision petitions were filed within a reasonable time, with there being no limitation as such prescribed, they were not barred by laches. On facts it was held that when the rates payable for agricultural land falling under the present boundary of the municipality of Dwarka was taken into consideration then it was above Rs. 45 per sq. yard even in 1994 and in the vicinity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 6 (e) of the GC Act reflects the legislative intent that even the revision petition which was filed prior to the effective repeal of the FERA would continue before the AT functioning under the FEMA. In Shiv Shakti Cooperative Housing Society, Nagpur v. Swaraj Developers (supra), the Supreme Court referred to the earlier decision in Kolhapur Canesugar Works Ltd. v. Union of India (2000) 2 SCC 536 and held as under (SCC @ p.674): "........if a provision of statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, there is no scope for granting it afterwards. There is modification of this position by application of Section 6 of the General Clauses Act or by making special provisions. Operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in the statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings, then it can be reasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 shows that there was not a single allegation against OEPL. In fact the operative portion of the Memorandum reads as under: "Now, therefore, S/Shri Rakesh Jain, Ravinder Jain and Somchai Chai Sri Chawl are required to show cause in writing within 30 days of the receipt of this Memorandum as to why Adjudication Proceedings as contemplated in Section 51 of the FERA, 1973 should not be held against them for the aforesaid contraventions." 23. Thus it is clear that the Memorandum did not intend that the OPEL should show cause. This was pointed out by Mr. Kanwal Nain, who sent a reply on behalf of the OEPL and Mr. Rakesh Jain to the ED on 18th October 1998. He pointed out that there was nothing in the Memorandum against OEPL. It appears that the ED also accepted the position since no further show cause notice or Memorandum making any specific allegation against OPEL was ever issued thereafter. 24. The net result is that for the purposes of Section 68 FERA although the contravention if at all was by OEPL, there were no proceedings initiated against it. Proceedings were initiated only against its Directors in their individual capacities. 25. The wording of Section 68 FERA is identical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eflected in the registered sale deeds and this was binding on the ED as well. It was submitted that by discarding the said judicial order of the CIT, as well as the copies of the sale deeds of the adjoining properties which had been placed on record, the AT went far beyond the scope of its revisional jurisdiction and entered into the question of facts, thereby committing a grave error. 29. In response to the above submissions, it is pointed out by Mr. Vineet Malhotra and Ms. Rajdipa Behura, learned counsel appearing for the ED, that Mr. Sri Chawla made a voluntary statement in Bangkok in the presence of the ED officials about paying Thai Bahts of 1,09,50,000 in cash to Mr. Rakesh Jain. Although the payment was made in Bangkok, his declaration was to the effect that it was paid to two persons who came to him on behalf of Mr. Rakesh Jain. His declaration also mentions the property in question. The said declaration was never retracted by Mr. Sri Chawla. This declaration by itself was sufficient, according to learned counsel, to fasten the liability on the noticees for contravention of Section 8(1) FERA. It was submitted that the retracted confessional statements of Mr. Rakesh Jain co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
