TaxTMI 
TaxTMI 
2014 (3) TMI 97
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....rm, of which Mr. Lekh Raj Chopra and Mr. Ganesh Das Chopra were partners. With effect from 1st December 1978, Mr. Ramesh Kumar Chopra was inducted as a partner. In April 1979, Mr. Lekh Raj Chopra ceased to be a partner and thereafter, Mr. Ganesh Das Chopra and Mr. Ramesh Kumar Chopra continued as partners of BTC. 4. On 28th July 1980, simultaneous searches were conducted by the officers of the ED at various premises, including those of Mr. Mukund Lal Khanna, from where a briefcase bearing an Air India identification slip with the name 'Pritam Lal of Kabul' was recovered. The briefcase contained documents and accounts, and, on being questioned, Mr. Mukund Lal Khanna affirmed that the briefcase belonged to Mr. Pritam Lal of Kabul. Incidentally, Mr. Pritam Lal is also known as Mr. Brij Lal, who had also filed a separate Appeal which was dismissed by the AT by the same common order, dismissing the Appeals of the Appellants herein. Mr. Brij Lal has filed a separate Criminal Appeal No. 161 of 2008, which is not listed along with the present Appeals. 5. Further searches were conducted on 27th/28th August 1980 by the ED at the premises of BTC as well as the residential premises of Mr....
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....r. Brij Lal of Kabul, the documents seized from the premises of BTC and those seized from the premises of Mr. Niranjan Singh as well as Mr. Shiv Charan Kakkar. Further, the Memorandum referred to the books of accounts of BTC; the transcripts of the accounts of BTC maintained with the Canara Bank, Chandni Chowk; the statements dated 14th, 15th, 19th September 1980 and 14th October 1980 of Mr. Niranjan Singh; the statements dated 27th August, 21st, 25th, 26th and 30th September 1980 of Mr. Mukund Lal Khanna; the statements dated 28th August, 3rd, 21st, 25th September 1980 and 1st, 31st October 1980 of Mr. Ganesh Dass Chopra and the statement dated 16th April 1981 of Mr. Ramesh Kumar Chopra. 9. An order dated 10th April 1986 was passed by the SD holding BTC, Mr. Lekh Raj Chopra and Mr. Ramesh Kumar Chopra guilty of having contravened the provisions of Section 9(1)(d) of the FERA with regard to the payments totaling Rs. 10,90,91,640; guilty of the contravention of Section 9(1)(b) with regard to the receipt of payments totaling Rs. 5,44,96,315 and of contravention of Section 9(1)(f) with regard to the payments received to the extent of Rs. 5,81,45,286, as detailed in annexures 1, 2 a....
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....el for the Appellants and of Mr. Subhash Bansal, learned counsel for the ED. 14. It is first submitted by Mr. Narang, learned counsel for the Appellants that the SD had not complied with the specific directions issued in the order dated 19th May 2003 passed by the ED. In other words, it is submitted that the SD, ED failed to determine whether the alleged illegal acts of BTC were, in fact, performed in the course of its business. It is submitted that the infractions of the law committed by the partners can allegedly result in penalty being imposed on the firm "only if such infractions are committed on behalf of the firm." In the instant case, the alleged illegal acts could not be said to have been committed on behalf of the firm, and even if there was a violation by the individual partners of Sections 9(1)(b)(d) and (f), such violation remained as one committed by the firm itself. It is submitted that in the entire record of the case, there is nothing to indicate that the infractions were committed by BTC. It is submitted that the finding of the SD which has been affirmed by the AT is contrary to Section 68 of FERA, which applies to companies. It is submitted that, unless it is s....
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.... 17. In reply to the above submissions, Mr. Subhash Bansal, learned counsel for the ED first submitted that once the original order dated 10th April 1986 was set aside by the AT by the order dated 19th May 2003, no reliance could be placed on it for any purpose whatsoever. There was nothing, therefore, that prevented the SD, ED from examining the matter afresh and imposing a higher penalty, if so warranted in law. Referring to Section 50 of the FERA, he pointed out that a penalty could be as high as five times the amount involved in the contravention and, therefore, the penalty imposed by the SD by the order dated 18th May 2004 was justified. 18. Mr. Bansal referred to the decision in Telstar Travels Private Limited v. Enforcement Directorate (2013) 9 SCC 549 and submitted that even a retracted confession could be relied upon as long as it was corroborated. 19. The Court has considered the above submissions. The specific case of the ED, as set out in the Memorandum dated 22nd August 1981, was that the documents seized from the briefcase of Mr. Pritam Lal @ Mr. Brij Lal as well as the documents seized from BTC, as explained by Mr. Niranjan Singh and Mr. Ganesh Dass Chopra in th....
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....d out the "connectivity/link" of the transactions, as recorded in the documents seized from the briefcase of Mr. Brij Lal. There are as many as thirty four such specific instances listed. This was a far more detailed and exhaustive analysis than that undertaken on the very same material in the earlier order dated 10th April 1986 of the SD. In a separate section titled 'Discussion and Findings", the SD has, in the order dated 18th May 2004, set out the reasons for holding that the BTC as well as its partners were responsible for the violation of Sections 9(1)(b)(d)(f) FERA. 24. It was sought to be urged by Mr. Narang that the statements made by Mr. Niranjan Singh had clarified that although some of the letters were addressed to Mr. Ramesh Kumar Chopra, he was at the relevant time only a school going student of barely 18 years of age and that the letters were actually meant for "Mamaji" which meant Mr. Brij Lal. However, the fact remains that Mr. Ramesh Kumar Chopra was already a partner in the firm since 1st December 1978. He was authorized to operate bank accounts of the firm and was one of the signatories of the cheques issued by the firm. It was not as if he was a sleeping par....
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....ransactions in India (Lekh Raj was also most of the time available in India)." 26. Thereafter, the SD has analysed the accounts found in the briefcase along with the other documents recovered, including the books of accounts and bank accounts statements of BTC and set out in a tabulated form "Corroboratory evidence - linking various transactions as recorded in the documents seized on 27.08.1980 from the samsonite briefcase found at the residence of Sh. Mukand Lal Khanna with corresponding entries as recorded in the regular books of accounts of Brij Trading Co. as also those in the account of the company with Canara Bank, Chandni Chowk, Delhi" The chart contains three columns titled "Documents of Samsonite Brief Case", "Books of Accounts of M/s Brij Trading Co." and "Account of BTC with Canara Bank." The specific descriptions of the transactions and the corresponding amounts are set out under the columns. 27. Mr. Narang's comment on the above tabulated chart was that it does not necessarily indicate that the entries were coded. He submitted that there was no way of knowing whether the so-called decodification actually reflected the correct position, particularly since BTC prep....
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.... Mr. Ramesh Kumar Chopra, has been fully brought out in the above documents which have been thoroughly analysed in the order of the SD. 31. On the question of retracted confession, the position that emerges from an analysis of the evidence in the present case is that there is adequate corroboration of the statements of Mr. Niranjan Singh to be found in the documentary evidence gathered in the present case. It cannot be said that the guilt in the present case is based only on the statement of Mr. Niranjan Singh without any corroboration from the documentary evidence on record. As rightly pointed out by the learned AT in the impugned order dated 27th December 2007, there is nothing brought on record by the Appellants to show that the statements of Mr. Niranjan Singh were made under threat or coercion. The Court concurs with the view expressed by the learned AT in the present case that the statements made by Mr. Niranjan Singh were both voluntary and corroborated in material particulars and, therefore, could safely be relied upon for the purposes of determining the guilt of the Appellants. 32. With the evidence on record clearly pointing to the involvement of BTC and with the in....