2025 (12) TMI 883 - AT - FEMA

LRS Share Investment Allowed, But Foreign Currency Loan Without RBI Approval Breaches FEMA Section 6(2) Regulations

The AT held that, regarding Contravention I, the appellant's investment in shares of an overseas company using LRS funds within the prescribed limit ... Remittances from India - Investment in shares of an overseas company - prior approval of RBI - loan to a person resident outside India out of LRS funds - failed to consider provisions of Section 6(2) of the Act of 1999 read with Regulation 3 and 4 of FEM regulations read with Master Circular - Borrowing or Lending Regulations​​​​​​​ - Requirement of full and true disclosure of foreign income/receipts, fiduciary deposit, investment, interest/ dividend income on investment/ fiduciary deposit outside India - contravention of guidelines/circular of the RBI or section of FEMA, 1999 - Imposition of penalties - HELD THAT:- With respect to contravention-I, No contravention of any guidelines/circular of the RBI or section of FEMA, 1999. The appellant stated that he availed the benefit under the LRS scheme and remitted money back to his Singapore bank account. He, subsequently, invested in shares of an overseas company which was permissible as per the RBI Master Circular no. -05/2009 dated July 1, 2009 for which the prior approval of RBI was not required. On examination of the said circular, we find that under the Liberalized Remittances Scheme, resident individuals in India were allowed to send money outside India. The appellant herein invested equivalent amount of USD 52,341 which is under the prescribed limit of USD 200,000 and the investment was made for the purpose of 'capital investment'. Hence, we do not find contravention of any of the provision by the Appellant as alleged by the Enforcement Directorate. With respect to contravention-II, the counsel for the Appellant limited his argument by submitting that the penalty is disproportionate. The appellant sought reduction on the ground that he made full and true disclosure of foreign income and receipts such as fiduciary deposit, investment, interest/dividend income on investment/fiduciary deposit outside India through HSBC Bank before ITSC in his application dated 16.12.2012 and had paid income tax and interest of Rs. 4,24,37,458/-. He further stated that ITSC through its order dated 06.02.2014 had accepted that he fully disclosed his income and cooperated throughout. It was also submitted that he wasn't aware of the legal requirements at the time, however, once he became aware, he immediately brought the foreign money back to India. With respect to contravention-III, the appellant argued that Ld. AA failed to consider provisions of Section 6(2) of Act read with Regulation 3 and 4 of FEM (Permissible Capital A/c transactions) Regulations, 2000 and the RBI Master Circular on Miscellaneous Remittances from India. These provisions allowed the appellant to give loan to a person residing outside India using the LRS funds as this is a permitted capital account transaction which did not require approval of RBI. The appellant further contented that Regulation 3 of the FEMA (Borrowing or Lending in Foreign Exchange) Regulations begins with a saving clause, meaning it does not override other provisions of the Act, Rules or Regulations. Therefore, Section 6(2) read with Regulations 3 and 4 and schedule I, clause (i) of the Permissible Capital Account Transactions Regulations, together with the RBI Master Circular, take precedence over Regulation 3 of the Borrowing or Lending Regulations. We are of the view that the argument of the appellant that such lending is covered under Section 6(2) of FEMA, 1999 read with Regulations 3 and 4 of the Foreign Exchange Management (Permissible Capital Account Transactions) Regulations, 2000 and the Liberalized Remittance Scheme is misconceived, as no provision under the said Regulations or the LRS permits resident individuals to extend loans in foreign exchange to foreign companies without the approval of the RBI. All contentions being relied upon by the appellant in present case are neither new nor overlooked at the adjudication stage. Since, all relevant facts were already available with and examined by the Ld. AA, we do not find any justification to interfere with the findings or to absolve appellant of the contraventions established under FEMA, 1999. The fact that the ED has not prayed for enhancement of the penalty amount in their appeal, we do not find any reasons to cause interference in the Impugned Order. It is otherwise not a case to enhance the penalty looking to Bonafide act of the appellant. Appeals are dismissed. 1. ISSUES PRESENTED AND CONSIDERED 1.1 Whether the incorporation of an overseas company and investment therein out of remittances under the Liberalised Remittance Scheme constituted a contravention of Regulation 5(1) of the Foreign Exchange Management (Transfer or Issue of any Foreign Security) Regulations, 2004 read with Sections 6(3)(a) and 47(3) of the Foreign Exchange Management Act, 1999. 1.2 Whether the maintenance and operation of a foreign bank account without Reserve Bank of India permission, followed by subsequent repatriation and voluntary tax disclosure, warranted reduction or interference with the penalty imposed under Section 13(1) for contravention of Section 4 of the Foreign Exchange Management Act, 1999. 1.3 Whether advancing a foreign currency loan to a foreign company out of funds remitted under the Liberalised Remittance Scheme was a permissible capital account transaction under Section 6(2) of the Foreign Exchange Management Act, 1999 read with the Foreign Exchange Management (Permissible Capital Account Transactions) Regulations, 2000 and RBI Master Circulars, or was prohibited by Regulation 3 of the Foreign Exchange Management (Borrowing or Lending in Foreign Exchange) Regulations, 2000; and whether the penalty imposed for this contravention required interference. 1.4 Whether precedents cited by the parties required modification of the findings on contraventions and penalties in the present matter. 2. ISSUE-WISE DETAILED ANALYSIS 2.1 Overseas investment under LRS and alleged contravention of FEMA and Foreign Security Regulations (Contravention-I) Legal framework (as discussed): 2.1.1 The Tribunal considered RBI Master Circular No. 05/2009-10 dated 1 July 2009 governing the Liberalised Remittance Scheme, under which resident individuals were permitted to remit up to USD 200,000 per financial year for current and capital account transactions, including investment in overseas securities, without prior RBI approval. Interpretation and reasoning: 2.1.2 The Court found that the appellant had remitted funds abroad under the Liberalised Remittance Scheme to his overseas bank account and thereafter invested approximately USD 52,341 in shares of an overseas company. 2.1.3 The amount invested was within the prescribed LRS limit of USD 200,000 per financial year and the purpose was 'capital investment,' a category expressly permitted under the Master Circular without prior RBI approval. 2.1.4 On this basis, the Court held that the transaction fell squarely within the LRS permissions and did not breach any guideline/circular of RBI or any provision of FEMA, 1999 as alleged. Conclusions: 2.1.5 No contravention was made out in respect of Contravention-I; the finding of the Adjudicating Authority dropping this contravention was affirmed, and no interference was warranted. 2.2 Holding foreign exchange abroad without RBI approval and proportionality of penalty (Contravention-II) Legal framework (as discussed): 2.2.1 The alleged breach related to Section 4 of FEMA, 1999, which restricts a person resident in India from holding foreign exchange and foreign assets outside India, except as permitted, and Section 13(1) concerning imposition of penalty for contraventions. Interpretation and reasoning: 2.2.2 It was not disputed that the appellant had maintained and operated a foreign bank account abroad for a prolonged period (approximately 2000-2012) without RBI approval, and that the foreign exchange was repatriated only in 2012-2013. 2.2.3 Before the Tribunal, the appellant limited his challenge to the quantum of penalty of Rs. 88,00,000/-, contending that: (i) he had made full and true voluntary disclosure before the Income Tax Settlement Commission in 2012; (ii) applicable taxes and interest of over Rs. 4 crores were paid; (iii) the ITSC recorded his full cooperation; (iv) the violation was technical, inadvertent and without mens rea; (v) upon becoming aware of the law, he repatriated the funds; and (vi) there was long delay in initiating/adjudicating FEMA proceedings. 2.2.4 The Court held that the penalty imposed was 'almost 10% of the contravened amount' and that the Adjudicating Authority had imposed it on a well-considered basis with reasons. 2.2.5 The Court noted that the appellant's arguments regarding voluntary repatriation, approach to the Income Tax Settlement Commission, payment of taxes and cooperation had already been considered by the Adjudicating Authority and were neither new nor overlooked. 2.2.6 The Court therefore found no basis to treat the contravention as merely technical or to further reduce or set aside the penalty on grounds of subsequent compliance, bona fides, delay or absence of mens rea in a FEMA proceeding. Conclusions: 2.2.7 The contravention under Section 4 of FEMA stood established. 2.2.8 The penalty of Rs. 88,00,000/- under Section 13(1) was held to be proportionate and reasoned; no interference or reduction was justified. 2.2.9 Since all mitigating factors relied on by the appellant were already evaluated at adjudication, they did not warrant any alteration in the findings or penalty on appeal. 2.3 Lending in foreign exchange to a person resident outside India out of LRS funds (Contravention-III) Legal framework (as discussed): 2.3.1 The alleged breach concerned Regulation 3 of the Foreign Exchange Management (Borrowing or Lending in Foreign Exchange) Regulations, 2000 read with Sections 6(3)(d) and 47(3) of FEMA, 1999, which require RBI approval for specified foreign currency lending by persons resident in India. 2.3.2 The appellant relied upon Section 6(2) of FEMA, 1999, Regulations 3 and 4 and Schedule I, clause (i) of the Foreign Exchange Management (Permissible Capital Account Transactions) Regulations, 2000, and the RBI Master Circular on Miscellaneous Remittances from India, contending that loans to persons resident outside India from LRS funds formed part of permissible capital account transactions not requiring RBI approval. Interpretation and reasoning: 2.3.3 The Court recorded that the appellant had remitted funds abroad under LRS, invested, and subsequently lent approximately GBP 65,211.08 / USD 100,000 to an overseas company from his foreign account. 2.3.4 The Court rejected the argument that such lending was automatically covered by Section 6(2) and the Permissible Capital Account Transactions Regulations or that the LRS authorisation extended to foreign currency lending without specific RBI approval. 2.3.5 It held that neither the Permissible Capital Account Transactions Regulations nor the Liberalised Remittance Scheme provisions cited by the appellant permit resident individuals to extend foreign currency loans to foreign companies without RBI approval. 2.3.6 The Court held that Regulation 3 of the Foreign Exchange Management (Borrowing or Lending in Foreign Exchange) Regulations, 2000 specifically prohibits such lending without prior RBI approval, and that this specific restriction governs the transaction. 2.3.7 The argument that the saving clause in Regulation 3 allowed Section 6(2) and the Permissible Capital Account Transactions Regulations to override the borrowing/lending restriction was held to be misconceived; the saving clause could not be interpreted to negate an express statutory prohibition on such lending. Conclusions: 2.3.8 The lending in foreign exchange to the overseas company without RBI approval constituted a contravention of Regulation 3 of the Borrowing or Lending in Foreign Exchange Regulations read with Sections 6(3)(d) and 47(3) of FEMA, 1999. 2.3.9 The penalty of Rs. 4,50,000/- imposed under Section 13(1) for Contravention-III was upheld as there was no legal basis to treat the transaction as permitted under LRS or as a permissible capital account transaction exempt from RBI approval. 2.4 Relevance of cited precedents and scope of appellate interference with penalty Interpretation and reasoning: 2.4.1 The Court examined prior decisions cited by both sides, including those involving enhancement or reduction of penalties under FEMA. It held that all the cited decisions concerned different factual matrices and distinct legal issues and were therefore distinguishable. 2.4.2 The Court specifically noted that the adjudicating findings in the present case had already factored in the appellant's cooperation, repatriation and tax compliance, and hence those aspects did not justify any further leniency on appeal. 2.4.3 The Court also recorded that the Enforcement Directorate had not prayed for enhancement of the penalty amount in its appeal; given the facts and the bona fide acts relied upon by the appellant, it was further not a fit case for enhancement. Conclusions: 2.4.4 The precedents cited by both parties were held inapplicable to alter the findings on contraventions or quantum of penalties in this case. 2.4.5 With no valid ground made out either for reduction or enhancement, and in the absence of any prayer by the Department for enhancement, the penalties imposed by the Adjudicating Authority were affirmed in toto and both cross-appeals were dismissed.