TaxTMI 
TaxTMI 
TaxTMI 
2022 (8) TMI 1107
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....had accepted cash in foreign currency, equivalent to Rs.23,17,630/during the period from October 1992 to January 1993 to the credit of NRE (Non-Resident External) Account of Umakant Bhardwaj, a Non-Resident Indian (NRI). For the said transaction, a show-cause notice came to be issued on 25th February 2002 by the appellants, alleging therein that the respondent-Bank had contravened the provisions of Sections 8(1), 64(2), 64(4), 64(5) and 73(3) of the FERA. The said show-cause notice was replied by the respondent-Bank on 30th October 2002. It was the contention of the respondent-Bank that the restriction to the effect that only an NRI Account Holder shall deposit foreign currency in his NRE account was added only with effect from 31st July 1995 vide a Circular issued by the Reserve Bank of India ("RBI" for short) of the same date. It was therefore submitted that the said Circular dated 31st July 1995 could not be given effect retrospectively. 3. However, vide notice dated 5th January 2005, the Adjudicating Officer held that the adjudication proceedings should be held against the respondent-Bank and fixed the matter for further proceeding on 25th January 2005. Being aggrieved by the ....
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....ion Bench of the High Court of Delhi, vide impugned judgment and order dated 18th December 2009, relying on the earlier Division Bench Judgment and order dated 26th March 2009 of the said High Court, allowed the said writ petitions. Being aggrieved thereby, Civil Appeal Nos. 4228-4261 of 2011 have been filed by the Directorate of Enforcement and others. 6. In Criminal Appeal Nos. 169-170 of 2012, the proceedings in pursuance to similar such show cause notices culminated into adjudicatory orders dated 28th February 2005 and 4th April, 2006 passed by the Adjudicating Authority, thereby imposing penalty on the respondent-Bank. The same were challenged by way of Criminal Appeal Nos. 337 and 338 of 2009 before the High Court of Delhi. The learned Single Judge of the High Court of Delhi vide the impugned judgment and order dated 15th December 2010 allowed the said appeals and set aside the orders imposing penalty. Being aggrieved, the Directorate of Enforcement has filed Criminal Appeal Nos. 169-170 of 2012. 7. We have heard Ms. Aishwarya Bhati, learned Additional Solicitor General ("learned ASG" for short) appearing on behalf of the appellants, Mr. Rajeev K. Virmani, learned Se....
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....FERA, any person who attempts to contravene, or abets any contravention of, any of the provisions of the FERA, or of any rule, direction or order made thereunder, he is deemed to have contravened the said provision, rule, direction or order, as the case may be. She further submits that under Section 73(3) of the FERA, the RBI is empowered to give directions regarding the making of payment and the doing of other acts by bankers, authorized dealers, moneychangers, stock brokers, etc. for the purpose of securing compliance with the provisions of the FERA and of any rules, directions or orders made thereunder. 12. Learned ASG further submits that under the Exchange Control Manual, 1987, particularly clause 29 B.8, the authorized dealer is required to be satisfied that the account holder is still normally resident outside India and that the proceeds of foreign currency/bank notes tendered by account holder were during his temporary visit to India. 13. Ms. Aishwarya Bhati, learned ASG, therefore submits that a conjoint reading of the aforesaid provisions of the FERA read with the Exchange Control Manual, 1987 would clearly show that the authorized dealer, before permitting the d....
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....e notices have been issued hurriedly just before the said sunset period was to expire prior to 1st June 2002. Learned Senior Counsel therefore submits that no interference with the impugned orders of the High Court is warranted. 16. Dr. A.M. Singhvi, learned Senior Counsel appearing on behalf of the respondent-Citi Bank submits that, assuming that the Circular dated 31st July 1995 was clarificatory, it cannot have a penal effect. It is submitted that by a Circular, a penal action cannot be provided and it can be done only by a statute. Dr. Singhvi relies on the judgment of this Court in the case of Virtual Soft Systems Ltd. vs. Commissioner of Income Tax, DelhiI (2007) 9 SCC 665 in support of the proposition that unless it is specifically provided in the statute that the amendment is declaratory and applies to all pending cases/proceedings, it cannot be given retrospective operation. 17. Dr. Singhvi, relying on the provisions of the Banking Companies (Period of Preservation of Records) Rules, 1985 (hereinafter referred to as "the said Rules"), submits that Rule 3 of the said Rules provides that every banking company is required to preserve the records only for eight years. It is ....
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....id case observed thus: "6. Learned counsel appearing for the respondents urged that Rule 12 is unreasonable and violative of Article 14 of the Constitution, as it does not provide for any period of limitation for the recovery of duty. He urged that in the absence of any prescribed period for recovery of the duty as contemplated by Rule 12, the officer may act arbitrarily in recovering the amount after lapse of long period of time. We find no substance in the submission. While it is true that Rule 12 does not prescribe any period within which recovery of any duty as contemplated by the rule is to be made, but that by itself does not render the rule unreasonable or violative of Article 14 of the Constitution. In the absence of any period of limitation it is settled that every authority is to exercise the power within a reasonable period. What would be reasonable period, would depend upon the facts of each case. Whenever a question regarding the inordinate delay in issuance of notice of demand is raised, it would be open to the assesee to contend that it is bad on the ground of delay and it will be for the relevant officer to consider the question whether in the facts and circumst....