AI Drafter 
TaxTMI 
TaxTMI 
1999 (4) TMI 662
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....cted to repatriate the amount of pound sterling 749.33 lying to his credit as mentioned in SCN II together with interest accrued thereon and to produce evidence to that effect to the department. 2. Shri R.D. Mehra, the learned counsel for the appellant, pleaded complete waiver from the requirement of pre-deposit on the ground that the findings in the impugned order are ex facie not sustainable on the issue of residential status of the appellant. He submitted that if the appellant's claim that during the relevant period he was a person resident outside India in terms of the definition of that expression in the Act were to be upheld, he cannot, undisputedly, be held guilty of the charges preferred under any of the SCNs. Shri Gadoo of the respondents did not dispute this preposition. Shri Mehra took us through the SCNs to show that as per the allegations made therein, though vaguely, the appellant is alleged to have become resident Indian during the year 1986-87 whereas the learned Adjudicating Officer has carefully avoided a finding in that regard. All that he has noted is that the appellant "returned to India in the year 1982 after which he used to visit different countries inclu....
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....he cannot be said to be guilty of any of the charges as framed in the impugned SCNs and the findings thereon would be liable to be set aside. Although the appellant has denied some of the charges on other grounds also but presently let us examine the question whether the appellant was at the relevant time a person resident in India in terms of the definition of that expression in the Act. 4. The learned Adjudicating Officer has concluded in para 15 of the impugned order that the appellant's intentions about being resident in India are obvious and the status is duly covered by definition under items (b) and (c) of section 2(p)(ii). The provisions of section 2(p) are as follows: "Definitions.-In this Act, unless the context otherwise requires,- ****** (p) 'person resident in India' means- (i) a citizen of India, who has, at any time after the 25th day of March, 1947, been staying in India, but does not include a citizen of India who has gone out of, or stays outside, India, in either case- (a) for or on taking up employment outside India, or (b) for carrying on outside India a business or vocation outside India, or (c)....
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.... till 1982; that thereafter he had been visiting India and other countries; that during the period between 1974 and 1982, he established his business in London; got residential and business properties in U.K.; and that British Government had exempted him from obtaining visa for entry to that country, that he continued his business in the U.K. up to the year 1985 and had been paying income-tax to the British Government. It is further seen even after the year 1986-87 when he was arrested in India by Customs authorities and Enforcement Directorate, he continued his business outside India, by leaving the country with permission of the Court, a condition subject to which he was enlarged on bail. These facts are borne out from the evidence of the entries in his passport and transcripts of his bank's accounts abroad and other evidence of the seized documents. In view thereof, it cannot be concluded that the appellant had at any time closed his business in the U.K. and thereby ceased to be the person described in item (b) of section 2(p)(i). As regards the question whether he had ceased to be resident outside India by virtue of his having ceased to be a person described in item (c) of sect....
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.... been noted from the appellant's statement allegedly recorded under section 40 of the Act. Factually, these factors as considered by the learned Adjudicating Officer are contrary to the documentary evidence. The business of the firm, International Stamps and Coins, admittedly is that of partnership consisting of his wife Zubeda Banu and Todywala. The savings bank account referred to in the statement is that of the firm whereas the appellant has got in the same branch his own NRE account. As regards British citizenship, the learned Adjudicating Officer had on his record the certificate of naturalisation granted by the British Government under British Nationality Act in favour of the appellant. The certificate was issued on 25-10-1988 and contains the endorsement under section 6(1) of that Act declaring the appellant as British citizen. We have gone through the statement dated 16-5-1981 and observed that his statement about declining the offer of British citizenship, if at all true, pertained to a much earlier point of time. In any case had the authority below ascertained from the appellant who must have applied for grant of British citizenship with requisitive evidence or got an inq....
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....nto the affairs of the partnership business, it would have shown whether what Todywala had stated is factually correct and who had been carrying on day-to-day business of the firm. 9. In the circumstances, it cannot be said that the appellant returned to India or came to India and has been staying on here for carrying on the business or vocation in India or that he is staying on in India in such circumstances as would indicate his intention to stay in India for an indefinite period. It is to be noted that in order to attract the provisions of section 2(p)(ii)(b), it is necessary to show that the alleged business is that of a person's own business. If a person merely helps another person in his business, those provisions cannot be attracted against him; if he takes up an employment in somebody's business, then item (a) would be attracted but in that event it would be necessary to prove the fact of employment. It is neither the case of the department nor there is evidence that the appellant has sought employment in the partnership business when he was in India. 10. There is another aspect of the facts as assumed by the learned Adjudicating Officer, viz., that the appellant was ....