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2016 (6) TMI 3 - CALCUTTA HIGH COURT

2016 (6) TMI 3 - CALCUTTA HIGH COURT - TMI - Refusal to dispense with the amount of deposit of the penalty fully by Foreign Exchange Appellate Tribunal - Held that:- The learned Tribunal omitted to notice that there was unexplained delay of nine years in issuing the show cause notice. The learned Tribunal also ignored the fact that the appellant was a mere agent of the principal, Sri S.Jegathesan.

Considering the facts and circumstances of the case, we are of the opinion that the Trib .....

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P No. 144 of 2016 - Dated:- 5-5-2016 - Girish Chandra Gupta And Asha Arora, JJ. For the Appellant : Mr. N. K. Poddar, Sr. Advocate, Mr. M. C. Ghosh, Mr. V. Tibrewal, advocates For the Respondents : Mr. K. J. Tiwari, advocate ORDER The Court : The subject matter of appeal is a judgment and order dated 8th April, 2016 by which the learned Writ Court dismissed the writ petition. The writ petition was filed challenging an order dated 24th August, 2015 by which the learned Appellate Tribunal for Fore .....

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of one Sri Majid Godil & Ors. in execution of search warrant issued under section 37 of the Foreign Exchange Regulation Act, 1973. During search, several documents were seized. A sum of ₹ 2 lakhs were also seized. Confessional statements of the appellant Sri Ashok Kumar Doshi were recorded on 24th January, 1992 and 3rd March, 1992. The appellant, however, retracted on 5th March, 1992 the statement made by him on 24th January, 1992 and 3rd March, 1992. It also appears that the statement .....

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respect of a sum of ₹ 13,96,000/- and penalty of a sum of ₹ 40,000/- and ₹ 15,000/- were imposed on the appellant and his principal respectively. The aforesaid order dated 24th September, 1993 has, however, been set aside by the learned Tribunal by its order dated 19th August, 2009 on the ground that there was no legal evidence to back up the conviction. A fresh show cause notice was issued both against the appellant and his principal, the said Sri S.Jegathesan on 31st July, 20 .....

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e cognizance of the fact that there is not one sentence in the adjudicating order justifying any explanation offered on behalf of the prosecution for the delay in issuing the show cause notice. There is in fact, according to him, no explanation offered for the delay of nine years. He submitted that the delay of more than nine years amounts to an act of acquiescence on the part of the authorities and this stale issue could not have been permitted to be raked up. He added that the learned Tribunal .....

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ue submitted that the writ petition was not maintainable and has rightly been dismissed. He drew our attention to a judgment of the Apex Court in the case of Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement and Another, reported in 2010 (4) SCC 772 wherein dealing with the question of refusal on the part of the Tribunal to waive the deposit, the writ petition was dismissed and the Apex Court opined as follows:- 35. In this case, liability of the appellant is not created unde .....

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show cause notice could not be issued in the year 1992 itself. Reference in this regard may be made to the judgment of the Apex Court in the case of Parashuram Pottery Works Co. Ltd. Vs. Income-tax Officer, Circle I, Ward A, Rajkot reported in 1977 (106) ITR 1 wherein the following views were expressed. At the same time, we have to bear in mind that the policy of law is that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particul .....

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