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TaxTMI 
TaxTMI 
TaxTMI 
2013 (3) TMI 507
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....punishable under Section 56(1)(i) of such Act sought discharge in Crl.M.P.No.11 of 1998 which came to be dismissed. 2. The prosecution case is that on 20.01.1996, the Assistant Director of Income tax (Investigation) informed of a search by the income tax authorities at the residence of the petitioner/accused and forwarded seized materials including US dollar 5061 Singapore dollars 527 and Malaysian ringots 210 which were seized from the premises as well as certain documents and foreign-currency of U.S. dollars 5014 seized from one Sampath, who came to the said premises during the course of search. The petitioner and one Seethalakshmi Nagaraj were examined under Section 40 FERA and it was their common stand that the money seized belonged to....
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....ed in the assessable income of the petitioner and such finding had been confirmed by this Honourable court. The prosecution had contended that the contention of the accused that Seethalakshmi Nagaraj chose to leave the money with the wife of the petitioner when she had a house of her own at Chennai and when she had other immediate relatives residing therein was unbelievable. The proceedings of the Income Tax Appellate Tribunal and further orders of this court were in relation to assessment for purposes of income tax and did not deal with any violation of allied laws like FERA. The prosecution had established a prima facie case and therefore the petitioner would have to stand trial. The court below found that as the prosecution had closed it....
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....e Tribunal's finding were heard in Tax case Appeal No. 150 of 2004. A Division Bench of this Court had under orders dated 3.9.2007, in the very same facts and circumstances, where the revenue was not able to produce any material evidence to prove that the currencies seized exclusively belonged to the petitioner, found the explanation given by the petitioner probable and plausible and upheld the finding of the Appellate Tribunal deleting the value of the seized currencies from the income of the petitioner. 5. Learned Senior Counsel would place reliance on the decision of the Apex Court in Virupakshayya Shankarayya Vs.Neelakanta Shivacharya Pattadadevaru reported in 1995 Supp (2) SCC 531 to submit that the decision of the Division Be....
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....iring or borrowing from or sell or otherwise transfer or lend to or exchange with any person not being an authorised dealer any foreign exchange". From the fact that some foreign exchange was recovered from the belonging to the respondent, the only provision which may possibly get attracted is whether the respondent can be said to have "otherwise acquired", inasmuch as all other expressions in sub-Section (1) of Section 4 are totally absent. The expression "acquire" must have a definite connotation and it must indicate something more than mere possession. There is not an iota of material or indicate even that the respondent knew what the packed contained when it was delivered to him or when the packet was recovered from the car being interc....
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....the seized currencies in the income of the petitioner was justified. In doing so, this court had taken into consideration the fact that Seethalakshmi Nagaraj had offered an explanation on how the money, which she claimed was hers, was brought into India that the tribunals had correctly arrived at the conclusion that the explanation offered was probable and possible and that the revenue had not produced any material or evidence to prove that the currencies exclusively belonged to the petitioner. Even before us, it is not the contention of the prosecution that any fresh material/evidence was available to prove that the currencies exclusively belonged to the petitioner. 10. It is useful to reproduce paragraphs 8 to 10 of the decision i....
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....es judicata, was definitely a relevant circumstances to be taken note of, because of what has been stated in Section 42 of the Evidence Act. What we, however, find is that the High Court had only referred to the earlier decision without examining the question as to whether law permitted a contrary view to be taken on the selfsame issue. According to us, the issue having been finally determined at the highest level, the same could not have been re-examined, which exercise, to start with, was undertaken even by a Civil Judge. 10. Shri Wad contends that even the defendants did not take such a stand throughout the litigation, which is apparent from the fact that they tried to establish their case de novo by leading fresh evidence. Though this....