TMI Blog2018 (2) TMI 1682X X X X Extracts X X X X X X X X Extracts X X X X ..... of the order of seizure before the competent authority. So far as the order of seizure is concerned, the petitioner cannot be stated to be aggrieved by such an order of seizure, as no amount has been withdrawn from the petitioner s Bank account. Since the order of seizure has already been confirmed by the order passed by the first respondent, the question of interfering with the same at this juncture does not arise. Writ Petition is allowed and the impugned order passed by the competent authority is set aside and the matter is remanded to the competent authority for fresh consideration - Writ Petition Nos.22344 & 31851 of 2017 and M.M.P.Nos.35007, 23424 & 23425 of 2017 - - - Dated:- 19-2-2018 - T. S. Sivagnanam, J. For the Petitioner : Mr.A.R.L.Sundaresan Senior Counsel for M/s.A.L.Ganthimathi For R1 : Mrs.G.Hema For the Respondent : Mr.A.P.Srinivas, Senior Standing Counsel ORDER Both the writ petitions have been filed by the same petitioner and the relief sought for being interconnected, they were heard together and are disposed of by this common order. 2.Writ Petition No.22344 of 2017 has been filed challenging the order of seizure dated 27.06.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the Enforcement Directorate submitted that, summons was issued to the petitioner under Section 37(1) of FEMA read with Section 131 of the Income Tax Act, 1961 and statement was recorded from him on 26.06.2016, wherein he had stated that proceeds were transferred to the Account of Xeniox Foundation and he has admitted credit in his account of Xeniox Foundation in HSBC Bank, Geneva. 7.The learned Senior Panel Counsel referred to the various other factual details as mentioned in paragraphs 5.3 and 6 of the counter affidavit filed by the Assistant Director. 8.It was submitted that the order of seizure requires to be placed for confirmation before the competent authority, Commissioner (Appeals) within thirty days from the date of seizure in terms of Section 37A(3) of FEMA and at that stage, Writ Petition No.22344 of 2017 was filed without availing the statutory remedy under FEMA. 9.Further, it is submitted that the language employed in Section 37(1) of FEMA does not provide an opportunity to the petitioner before issuing order of seizure. The Assistant Director has duly enclosed the relevant materials placed along with the petition filed before the competent authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant Director filed his counter affidavit and at the request of the petitioner, the matter was adjourned to 24.10.2017. Subsequently, the matter adjourned to a further date on 17.11.2017 and further adjourned to 05.12.2017. On 04.12.2017, Writ Petition No.31851 of 2017 was filed, which was listed for admission on 08.12.2017, on which date, the learned counsels for the respondents accepted notice and the Court directed the matter to be tagged along with W.P.No.22344 of 2017. On 02.01.2018, when the case was heard, the learned Senior Counsel appearing for the petitioner submitted that the competent authority has come to the conclusion that the petitioner has violated the provisions of Section 4 of FEMA, mainly on the ground that the petitioner failed to produce any evidence to show that the alleged amount has been repatriated to India. 15.It was further submitted that, the petitioner is in possession of documents/records to show that the amounts were repatriated to India, shown in the books of accounts and the amounts have suffered tax. The Court noted that these documents were not filed in the writ petition and adjourned the matter at the request of the petitioner to file an add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017, one more opportunity was granted and the case was posted on 17.10.2017. Even for the said hearing, none appeared. Therefore, the competent authority proceeded ex-parte. In such a factual scenario, it has to be seen as to whether any indulgence should be granted to the petitioner. 19.Two reasons appeal to my mind to grant an opportunity to the petitioner. The first reason being that the allegation pertains to certain sum of money held in two Bank accounts outside India in Geneva, Switzerland in the year 2002. The assessments under the Income Tax Act were carried out and several other related proceedings under the Income Tax Act had arisen. In the meantime, orders were passed and action was initiated, etc. The authority under the FEMA comes into the picture for the first time in 2015. Thus, the entire issue does not appear to be a matter of recent origin, but even according to the Department, the funds were held in two Banks in the year 2002. Therefore, I am of the considered view that one more opportunity can be granted to the petitioner before the competent authority. The second reason being that one of the main grounds for coming to a conclusion (prima facie) that the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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