TaxTMI 
TaxTMI 
TaxTMI 
2019 (2) TMI 214
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....s to bring back into India the foreign exchange of Sri Lankan Rs. 4,70,09,728/- held in Sri Lanka and UKP 5216.50 held in U.K. in terms of section 13(2) of the Foreign Exchange Management Act, 1999 and further order for confiscation of said amount of Sri Lankan Rs. 4,70,09,728/- presently available in the form of Treasury Bill with Bank of Ceylon, Colombo, Sri Lanka and UKP 5216.50 available with Courtts & Co. U.K., once it is repatriated. The total amount of penalty of Rs. 1,50,00,000/- (Rupees One Crore Fifty Lakhs) imposed on the noticees and the amount so confiscated should be deposited in the office of the Joint Director, Directorate of Enforcement, Lucknow Zonal Office, 2nd Floor, Princeton Business Park, 16 Ashok Marg, Lucknow-226001 in the form of Demand Draft drawn in favour of the Drawing and Disbursing Officer, Directorate of Enforcement, Lucknow Zonal Office, Lucknow, within 45 days of receipt of this order. 3. The background about the Maha Bodhi Society of India and the facts taken in appeal no. 54/2014 are that: a) The Maha Bodhi Society of India was established in the year 1891 by a Sri Lankan Buddhist Monk to preserve and develop Buddhist places in India. An amou....
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.... some additional information as the society failed to provide those documents an Order under Section 10(a) and 12 of the Foreign Contribution (Regulations) Act 1984 was initiated and the same was followed by initiation of Court proceeding by CBI. The enquiry resulted in a court case titled CBI Vs. Maha Bodhi Society of India and others (RC/AC/9/2000 A 001 U/S 6 &13 of the FCRA Act). i) Thereafter the Government of India, in exercise of the power vested under Section 12 of the Foreign Contribution (Regulation Act) 1976 passed an order bearing Number: 11/21022/52(1)/98 FCRA-II (MU) dated 01.12.1999 prohibiting the society and all its branches from paying, delivering & transferring any foreign contribution till further order. j) Against the order dated 01.12.1999, the Maha Bodhi Society of India made representation to the appropriate authority and accordingly vide order dated 05.07.2000 the appropriate authority allowed the society to draw funds amounting to Rs. 3.61 Lacs from its frozen Bank Account to meet the expenditure of Calcutta, Sarnath, Bodhgaya, New Delhi & Bhubaneswar Centre. k) By order No. 11/21022/52(1)98 FCRA-II (MU) dated 26.03.2002 the appropriate authority allowed....
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....sion dated 10.02.2013 was submitted by the society acting through its lawyer. The Impugned order was passed on 29.05.2014 which is challenged by filing of two appeals before us. 6. As per appellant, in the month of September, 2013 the appellant herein tendered his resignation from the post of General Secretary of Maha Bodhi Society of India and at present is engaged the service of Lord Buddha as a Bhiku i.e. beggar or one who lives by alms. 7. It is not disputed by the counsel for the respondent that two Foreign Nationals of London, U.K known as Grace Constant Lounsbery and Marguerite La Fuente has executed a WILL on 6/12/1956 in favour of the appellant. As per the deed, the settlors have transferred certain securities in favour of M/s. Coutts And Company known as Bank as trustee with a direction to transfer the value of securities to the appellant after the death of the settlers. The settlers died on 26/06/1994, as such after the death of the settlers by virtue of this settlement deed the appellant became entitled to inherit the foreign exchange to the tune of 1,75,000 UK pound. 8. It is the admitted position that the Trustee requested the appellant to furnish their bank accoun....
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....maintained outside India in contravention of the provision of FEMA,1999. 12. On the basis of this complaint, a show cause notice Dt. 22/10/2009 was issued to the appellant for contravening the provision of section 4 of the Act for holding Foreign Exchange outside India. 13. Section 4 of the Act reads as under:- Save as otherwise provide in this Act, no person resident in India shall acquire, hold, own, possess or transfer any foreign exchange, foreign security or any immovable property situated outside India. Section 6(4) of the Act reads as under:- A Person resident in India may hold, own, transfer or invest in foreign currency, foreign security or any immovable property situated outside India if such currency, security or property was acquired, held or owned by such person when he was resident outside India or inherited from a person who was resident outside India. The section provides that a person resident in India may hold foreign currency outside India if such currency was inherited by a person resident in India from a person who was resident outside India. 14. It is an undisputed position of facts that the appellant is a society Incorporated in India, as such, is a pe....
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....ontravening the provisions of section 4 of the Act because of the following reasons:- a) Undisputedly, the Foreign Exchange was acquired on 09/02/2007. The appellant has moved an application on 24/10/2005 in the office of Ministry of Home Affairs i.e. much prior to the realization of this amount for granting permission for the repatriation of this amount. If the Ministry of Home Affairs would have granted the permission then the society would have repatriated this amount to India and have sold it to Reserve Bank of India. No material has been produced contrary to that. Thus, there was no malafide intention in holding the foreign exchange abroad India. b) It is undisputed fact that even till date, after passing of the order, the Ministry of Home Affairs has not granted permission for the repatriation of this amount to India. The society has again and again moved an application to this effect. Evidence to this regard is already available in record. c) Regulation 3 of The Foreign Exchange Management (Realisation, Repatriation and Surrender of Foreign Exchange) Regulations, 2000 provides that if a person resident in India to whom any amount of foreign exchange is due or has accrued ....
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....ating this amount to India. 19. Considering the above facts the appellant should not be considered to have violated the provisions of section 4 of the Act and Regulation 3 of the Foreign Exchange Management (Realisation, Repatriation and Surrender of Foreign Exchange) Regulations, 2000 in view of peculiar facts and circumstances of the present matter. 20. By holding in the impugned order that the foreign exchange outside India the appellant has neither acted deliberately in defiance of law nor in conscious disregards of its obligation as it was held by Hon'ble Supreme Court in the case of Hindustan Steel Ltd. Vs State of Orissa (1972) 83 ITR 26(SC) that even if a minimum penalty is prescribed, the authority to impose the penalty will be justified in refusing to impose the penalty, when there is a technical or venial breach of the provision of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statue. Thus, the penalty levied is excessive and unreasonable having regard to the facts of the case. 21. The Adjudicating Authority have mentioned in the order that the Sri Lankan rupees now in the form of treas....