TaxTMI 
TaxTMI 
2013 (8) TMI 511
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....r Board. 3. The petitioner filed, once again, an application for restoration which was dismissed on 17.08.2009. The said matter was carried in appeal, to the Division Bench. The appeal was numbered as 648/2009. The Division Bench, however, set aside the order dated 17.08.2009 and directed that, the writ petition be heard on merits. 4. In the more recent past, the matter came up for hearing on 02.07.2012. There was no representation on behalf of the petitioner and therefore, adverse orders were deferred. In the order of 02.07.2012, it was noticed that at times the petitioner appeared in person, while on other occasions, he was represented through counsel and therefore, it was not clear whether the petitioner had dispensed with the services of his counsel, altogether. A direction was issued, however, that the matter would remain on the Regular Board. The matter reached hearing, on 12.07.2012 when, once again, there was no representation on behalf of the petitioner. The writ petition was dismissed. 5. On 22.07.2012, notice was issued in the captioned application when, the petitioner was represented by an advocate by the name of Mr. V.M. Vishnu. Respondents/non applicants were....
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....oned investments, requisite permissions were taken from the Reserve Bank of India (RBI) both under the provisions of NRI Portfolio Scheme as well as the then subsisting Foreign Exchange Rules. It is also claimed that due compliance with the relevant provisions of the then subsisting Foreign Exchange Regulations Act, 1973 (in short FERA), was also made. 14. The petitioner, after nearly three (3) months of his return from Saudi Arabia, by a communication dated 28.03.1988, informed respondent no.4 i.e., SBI of his intention 'to explore the possibilities of resettlement'. It was further indicated, in the very same communication, by the petitioner that, 'there is also a possibility of leaving for another assignment Overseas after a elapse of 12 months from the date of arrival as above, if suitable employment is relocated Overseas'. I have quoted the relevant extracts of the petitioner's letter of 28.03.1988, as much of the submissions in the matter, have veered around the contents of this letter. 14.1 The petitioner, while concluding the said letter indicated to SBI, that he intended to acquire an 'Ordinarily Non-Resident Status' and therefore, necessary action ought to be taken t....
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.... written by SBI in response to the letter dated 10.11.1988 which the petitioner had, apparently, written to the Govt. of India i.e., respondent no. 1. 18. This communication of SBI i.e., letter dated 02.01.1989, triggered a spate of letters, which the petitioner wrote to various authorities, which included RBI and the various officers in the Ministry of Finance, Government of India (GOI), as also, the Directorate of Public Grievances, Cabinet Secretariat, New Delhi. Letters were also addressed to the then Finance Minister, seeking his intercession in the matter. The period, between which, these letters were written was 05.06.1989 to 10.12.1991. It appears that, on 29.12.1992, the Enforcement Directorate, Agra issued a notice under Section 33(2) of the FERA to the petitioner, as well. 19. Apparently, the petitioner thereafter, wrote to the Finance Minister, and the Directorate of Public Grievances, Cabinet Secretariat, New Delhi, calling upon them to amend the provisions of the FERA and the Exchange Rules, so that, the long pending grievance of the petitioner could be addressed. Letters in this behalf were issued on 08.01.1993 and 14.01.1993. 20. In the meanwhile, the petit....
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....stry of this court was understood by him, as dismissal of the writ petition. 27. At the outset, it is noted that, though the petitioner has filed elaborate written arguments, the counsel for the petitioner has in the background of the aforesaid broad facts made only the following submissions, in support of the petition :- (i) The petitioner could not have been treated as a Resident, as he had indicated, that his return to India was exploratory; that is, only to evaluate the possibility of obtaining a suitable employment/engagement. In this behalf, the petitioner sought to draw my attention to the letter dated 28.03.1995, written by the petitioner to SBI; to which I have made a reference above, wherein the petitioner had inter alia indicated that, there was a possibility of him, leaving the country for an Overseas assignment, within the next 12 months, from the date of his arrival. (ii) The wrongful conversion of the petitioner's status from a NRI holding a NRE account to that of a Resident, had resulted in loss of career opportunities and investment. In this behalf, it was the stand of the learned counsel for the petitioner....
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....ly put at rest, when the petitioner, vide his letter dated 20.07.1988, wrote to a company by the name of BASF (India) that, henceforth it should send the dividends and/or interest earned by him directly to his NRO account no.0684, maintained with SBI, as he had returned to India and therefore, accordingly, his status be changed to that of a "resident". 28.4 Learned counsel for respondent no.4, submitted that the purport of this letter was, since the petitioner had returned to India, he was not interested in SBI acting on his behalf for collection of dividends and/or interest and other matters relating to his investment in shares and debentures. The petitioner, thus required BASF (India), to correspond directly with him at the address provided by him, in the said letter. 28.5 It was submitted that, it was in pursuance of the aforesaid circumstances, that the petitioner's NRE and NRO accounts were closed, and funds were transferred, to his saving bank account. A communication to that effect was sent to the petitioner vide letter dated 17.07.1989. 29. The sum and substance of the submissions made by the learned counsel for respondent no.4 is that, since the petitioner had him....
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....eturn to India. 31.2 Mr. Parihar, submitted that, the petitioner did not make any such application to the RBI to seek exemption for surrendering his foreign currency balances in respect of accounts, if any, maintained by him, outside India. 31.3 Furthermore, Mr. Parihar submitted that, under Regulation A. 15 of the E.C. Manual, a NRE account of a NRI is required to be re-designated as a Resident account immediately upon the return of the account holder to India if, the authorised dealer, is satisfied that the account holder has returned to India for either taking up employment or, carrying on business or vocation, for any other purpose with the intention of residing in India. 31.4 Mr. Parihar, further contended that, if an exemption is granted by RBI then, such a person also, has the option of availing the facility of re-transferring, the foreign currency surrendered on returning to India, as and when, such a person decides to return to a foreign country, within a period of five (5) years or, within such extended time, as RBI may grant. 31.5 Mr. Parihar, submitted that, since the petitioner had unequivocally expressed his intention to stay in India, SBI had rightly clos....
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....m RBI for sale of his investments. This aspect comes through in SBI's letter of 16.06.1988. 32.5 By this letter, quite clearly, SBI informs the petitioner that since he had become a 'Resident', there was no requirement to obtain the permission of RBI for sale of his investments. By this very letter, SBI also informed the petitioner that, the Non-Resident Investment Section, in SBI, which was rendering service to the petitioner under its Non-Resident Portfolio Scheme would not be able to do so in view of the fact that the petitioner had acquired the status of a Resident. Accordingly, it was indicated in the very same letter that the said section had requested its securities division to re-designate his safe custody accounts as Resident accounts. 32.6 Since the petitioner protested qua the re-designation of his status as a 'Resident', SBI, clarified its position with regard to the same vide its letter of 02.01.1989. In the said letter, not only did the SBI, make a reference to the relevant provisions of the E.C. Manual, but also adverted to the meeting of 28.11.1988, held with the petitioner wherein, he was informed that since, he had already sought transfer of residence, it wa....
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....sp; (p). "person resident in India" means Xxxxxxxxxx xxxxxxxxxxxx (ii). A Citizen of India, who having ceased by virtue of paragraph (a) or paragraph (b) or paragraph (c) of sub-clause (i) to be resident in India, returns to, or stays in, India, in either case - (a) xxxxxxxx (b) xxxxxxxxxx (c). for any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period.." 36.1 Clearly, on perusal of the record, the only conclusion that could have been drawn is that the petitioner himself had indicated his intention to stay in India and acquire a status of a 'Resident'; on return from Saudi Arabia after giving up his assignment in that country. What began with the duration of the petitioner's stay in India being uncertain, acquired certainty with the issuance of letter dated 20.07.1988 to BASF (India). 37. Therefore, quite naturally, under Regulation A.15, the relevant portion o....