TaxTMI 
TaxTMI 
2019 (3) TMI 824
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.... of Foreign Exchange Management Act, 1999 read with section 132A(1) of the Income Tax Act, 1961, and as a result thereof Indian Currency totaling to Rs. 21,75,000/- and incriminating documents were recovered and seized. (b). Statement of Shri Harish Kumar @ Rinku was recorded under Section 37 of Foreign Exchange Management Act, 1999 read with Section 132(4) of Income Tax Act, 1961 on 10.01.2004 in which he, inter-alias, stated that his friend Madan, earlier residing in Phase-11, Mohali, Punjab, had gone to U.S.A about 3-4 years ago; that the said Madan proposed to him to distribute money in India to relative of persons residing abroad from who he (Madan) collected foreign exchange; that in lieu of this he i.e. Harish Kumar @ Rinku, would earn a commission @ Rs. 700/- per Rs. 1,00,000/-; that as he was not having any occupation he agreed to do this work and was doing it for the last an year and a half; that he did not remember the address of Madan in U.S.A but he remembered his telephone number which was 4089464843; that Madan used to inform him about the money being sent for distribution over telephone from U.S.A alongwith details of the persons to whom the money was to be distri....
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.... meant Rs. 1,00,000/-; that as per this page he received Rs. 9,00,000/-, Rs. 700,000/-; Rs. 700,000/-; from Singh Rs. 11,50,000/- from Pali, and Rs. 9,25,000/- from Happy under the instructions of Madan residing in U.S.A which he distributed among the persons residing in Patiala, Nakodar, Dhada, Nawanshehar and other areas. On this page 13-29-500 is written before fax which meant that he had distributed Rs. 13,29,500/- to the persons whose details were given in the fax sent by Madan. While explaining Page No. 1 of the seized loose sheets, he stated it was a Visiting card of Harvinder Ahuja @ Happy who used to send him money from Delhi under instructions of Madan residing in U.S.A. While explaining the seized Diary he sated that as per Page No. 1 of the said Diary, he distributed Rs. 57,30,750/- in India among those persons whose details were sent by Madan from America; that on this Page also amounts were written in Codes i.e. 290 was written against Serial No. 1, 70 was written against Sr. No. 2, 50 was written against Sl. No. 3 which meant that he distributed Rs. 2,90,000/- to the person at Sr. No. 1, Rs. 70,000/- to the persons at Sr. No. 2 and Rs. 50,000/- to the person at Sr.....
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....usiness with him. Though Shri Harvinder Ahuja @ Happy in his statement dated 03.02.2004 denied any business dealing with Shri Harish Kumar @ Rinku, the documents seized from the Residential premises of Shri Harish Kumar @ Rinku clearly mentioned his name 'Happy' as well as the amounts received by Shri Harish Kumar @ Rinku from him; the total of such payments made by him to Shri Harish Kumar @ Rinku as recorded in the said documents aggregated to Rs. 61,00,000/-. (e). On the basis of Fax Message recovered and seized from the premises of Shri Harish Kumar @ Rinku, statements of various persons were recorded under section 37 of Foreign Exchange Management Act, 1999 r/w Section 131(1) of Income Tax Act, 196, the details of which are as under: (i) Smt. Darshan Kaur, Smt. Harminder Kaur, Smt. Harvinder Kaur @ Susan Kaur, Shri Dharmpal and Master Gurmej Singh: In their respective statements dated 14.01.2004, 14.1.2004, 14.01.2004, 14.01.2004 and 28.01.2004 they admitted that their relations living abroad had sent them Rs. 6,00,000/-, Rs. 1,44,000/-, Rs. 63,200/-, Rs. 2,00,000/- and Rs. 2,00,000/- respectively, but the same were not received by them till then. (ii) Shri Niranjan Sing....
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....his Diary. (g). Further summons were issued to Shri Harish Kumar @ Rinku on 28.03.2005, 01.04.2005, 12.04.2005, 7.6.2005, 12.7.2005, 27.7.2005, 18.8.2005 and 3.10.2005 but he did not appear in the Office of Directorate of Enforcement, Jalandhar. However, vide his Representation dated nil addressed to the Assistant Director, he inter-alia, claimed that the seized amount was sale proceeds of agricultural land of some other persons who had entrusted the same to him. His Representation was duly taken into consideration but found to be devoid of any merit, and was baseless and made as an attempt to escape the clutches of law. These findings were accordingly informed to him vide letter no. T- 3/CP/JL/2004 dated 22.8.2005." 4. The finding of the Adjudicating Authority that the appellant had without any general or special permission of RBI, received amounts totalling to Rs. 2,47,99,350/- in India, otherwise than through an authorised person, by order or on behalf of his friend Madan, a person resident outside India, and thereby he has contravened the provisions of section 3(C) of FEMA and the seized amount of Rs. 21,75,000/- was the amount involved in the aforementioned contraventions o....
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....ice. The appellant had every right to prove his innocence which right has been violated by not allowing the cross examination. 9. It is also alleged that no materials should be relied on against the appellant without his being given an opportunity of explaining them. It is hardly necessary to emphasize that the right to cross-examine the witnesses who give evidence against him is a very valuable right and denial of this right is a violation of principles of natural justice. 10. Rather the appellant claimed an amount of Rs. 26,25,000/- out of seized amount of Rs. 21,75,000/- as belonging to his relative Harchand Singh who loaned the said amount of Rs. 26,25,000/- on interest for using it in his business. The appellant had filed affidavit in this regard but this evidence also had been rejected by the Adj. Officer on untenable reason. It is argued on behalf of appellant if the said amount is not returned, the relative may file the suit in civil court fo recovery of the said amount. 11. Counsel for the Respondent mainly supported the findings of impugned order. The judgement of Hon'ble Supreme Court in the case of Monotosh Saha vs. Special Director, Enforcement Directorate and Anr. ....
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....y of various persons from whom Shri Harish Kumar had been receiving payments in India, under instructions of his friend Madan, residing in USA, who was earlier residing in Mohali. In view of other certain searches were conducted and a number of persons examined and their statements recorded under FEMA, which brought out corroboratory evidence viz-a-viz the facts as stated by Shri Harish Kumar in his afore-mentioned statements. 17. Shri Harish Kumar later on sought to retract from his abovementioned statements, by way of a letter sent during the course of investigations, besides by way of submissions made during the course of personal haring including in the form of Affidavits, both his as also of one other person, in which Affidavit, it is claimed that amount totaling to Rs. 26,25,000/- was received by Shri Harish Kumar from the said person (Harchand Singh) on interest for using the same in his business of Goldsmith. 18. It was also contended on his behalf by Counsel that his statement dated was recorded by Shri Balvinder Singh, under duress no doubt Shri Harish Kumar has by his communication/submissions sought to deny the charge, as leveled in the Show Cause Notice under Adjudic....