TaxTMI 
TaxTMI 
2014 (3) TMI 1235
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....cide the matter within a period of three months from the date of receipt of a copy of this order. 2. It is pertinent to mention that the Registrar of this Tribunal putup the present matter before the Chairperson on 02.01.2014 for fixing the date of hearing & he (Registrar) reported that the Hon'ble High Court of Calcutta, vide its order, dated 23.2.2010 had remanded the matter back to this Tribunal for decision on merits within three months from the receipt of this order. The letter of the Ld. Advocate, Ms. Sunita Bansal along with the copy of the order of the Hon'ble High Court of Calcutta, dated 23.2.2010 was received in this Tribunal on 31.12.2013 as per report of the Registry through Registrar. On the basis of the report of the Registrar, the matter was listed at the earliest i.e. on 15.1.2014 after giving notice to both the parties, as it was a remanded matter. The interim order of the Tribunal, dated 15.1.2014 runs as under- Single Bench Dated: 15.1.2014 Appeal No.(s) : 405/2003 Appellant (s) : Shri Naresh Kumar Agarwal Shri B. Naveen Kumar, ALA along with Ms. Smriti Pradhan, Legal Consultant appeared on behalf of Enforceme....
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....e is adjourned & fixed for 20.2.2014 for the purpose already fixed. Sd/- (Dr. H.K. Mudgil) Acting Chairperson The next interim order of the Tribunal, dated 20.2.2014 runs as under:- Single Bench Dated : 20.2.2014 Appeal No.(s) : 405/2003 Appellant (s) : Shri Naresh Kumar Agarwal Shri B. Naveen Kumar, ALA appeared on behalf of the Enforcement Directorate, while a proxy Counsel (Sh. Varun Tandon) appeared on behalf of Shri Subramaniam Prasad, Advocate for the appellant and requested for further adjournment of the matter as the main counsel is not well today. Request allowed in the interest of justice. It is also pertinent to mention here that this is a remanded matter from the Hon'ble High Court of Kolkata. So, short adjournment is given to the appellant as well as Enforcement Directorate. Hence, the case is adjourned & fixed for 26.2.2014 for the purpose already fixed. Last opportunity. Sd/- (Dr. H.K. Mudgil) Acting Chairperson The interim order of the Tribunal, dated 26.2.2014 is as under- Single Bench Dated 26.2.2014 Appeal No.(s) 405/2003 Appellant (s) Shri Naresh Kumar Agarwal ....
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....sh hearing on fact and in Law on the points (1) whether there has been a retraction of confessional statement or not (2) whether the respondent has been able to prove the case as per standard as required in a case like this. The Tribunal was further directed to decide the matter within a period of three months from the date of receipt of a copy of this order. The Hon'ble Calcutta High Court observed as under:- "Upon hearing the learned counsel for the parties and going through papers before us it transpires only point for decision is whether the authority has passed the order with the procedure established by law or not. We have gone through the order of the Tribunal. We find that the Tribunal has merely quoted several judgments of the Supreme Court and also Privy Council. It did not make any endeavour to hold whether those judgments are applicable in the facts and circumstances of the case. According to us it is the primary task of the Court and the Tribunal to analyse the fact and come to a finding within the principles of law laid down in the judgment can be made applicable. The learned Tribunal casually mentions in the impugned judgment that confessional statement ....
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....irections given by the Hon'ble Calcutta High Court titled (supra). 6. Ld. Counsel for the appellant reiterated all the points mentioned in the appeal & he submitted that the appellant was a Chartered Accountant & was dealing in the profession of auditing & tax matter consultancy. He had no connection with any such transaction as alleged in the Show Cause Notice no.T-4/4-C/97(SCN), dated 12.2.1997 for the contravention of the provisions of Section 9(1)(b) & 9(1)(d) of the Foreign Exchange Regulation Act, 1973. The charges in the Memorandum are absurd, baseless & devoid of merit as there is no material against the appellant. The allegations of payment of Rs. 12,98,800/- (Rupees twelve lakhs ninety eight thousand & eight hundred) to Shri Devkinandan (younger brother of Sh. Jagdish Prasad Karel), on the instruction of shri Dilip Saha of Bangladesh are totally wrong as the appellant do not know any person in the name of Shri Jagdish Prasad Karel. These allegations are only supported by admissional statement of Shri Jagdish Prasad Karel coupled with the appellant's admissional statement which was retracted immediately as the appellant's admissional statement was recorded u....
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....e appellant was an Income Tax consultant & had so many clients. Nothing incriminating was recovered from the office of the appellant during raid as on 06.09.1996 at 08:15 p.m. & no convincing evidence was adduced by the officers of the Enforcement Directorate, Calcutta against the appellant. So, the confessional statement, which was forcefully taken from the appellant, was not voluntary. Onus lies on the respondent to prove that the statement given by the appellant was true & it was not caused by any inducement, threat or promise by a person in authority. In this regard, the respondent miserably failed as no plausible explanation was given by the Enforcement Directorate. Moreover, the cross examination of Shri Jagdish Prasad Karel despite demand was not allowed, which is against the natural law of justice. This fact was also observed by the Hon'ble Calcutta High Court in the judgment titled (supra). Ld. Counsel for the appellant further submitted that at the time of remand by the Hon'ble Calcutta High Court vide order, dated 23.2.2010, the Tribunal was directed to decide the matter for fresh hearing on fact and in law on the points (1) whether there has been a retraction of....
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....icee no.1), the Adjudicating Authority has rightly framed charges against the appellant (Noticee No.2) for violations of section 9(1)(b) & 9(1)(d) of the FERA, 1973 to the extent mentioned in the respective Show Cause Notices. (Relevant para 2 at page 13 of the Adjudicating/Impugned Order No.21/2003/DD (KNS), dated 29.08.2003). It is further submitted that much importance cannot be given to the retraction because the appellant in his retraction statement has made only vague allegations without any corroborative evidence. Therefore, there was no question of exercising any pressure or threat on him to obtain the statement dated 06.09.1996 of the appellant (Noticee No.2). Further, the statement is well corroborated by the document seized, which are important factors to prove the charges against the appellant. Hence, the appeal deserves dismissal from all corners. 8. Arguments have been heard and record has been perused. 9. Taking into consideration all the facts and circumstances of the case, coupled with the judgment of the Hon'ble Calcutta High Court, titled as Naresh Kumar Agarwal (supra), only two issues are required to be determined by the Tribunal i.e (1) whether there....
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.... p.m. Onus lies on the respondent to prove that the statement given by the appellant was true & it was not caused by any inducement, threat or promise by a person in authority. In this regard, the respondent miserably failed as no plausible explanation was given by the Enforcement Directorate. Moreover, the cross examination of Shri Jagdish Prasad Karel despite demand was also not allowed, which is against the natural law of justice. This fact was also observed by the Hon'ble Calcutta High Court in the judgment titled (supra). Legal position of law is discussed in the judgement of the Hon'ble Supreme Court titled as Vinod Solanki (supra). (Relevant para) 36-38: "36. A person accused of commission of an offence is not expected to prove to the hilt that confession had been obtained from him by any inducement, threat or promise by a person in authority. The burden is on the prosecution to show that the confession is voluntary in nature and not obtained as an outcome of threat, etc. if the same is to be relied upon solely for the purpose of securing a conviction. 37. With a view to arrive at a finding as regards the voluntary nature of statement or otherwis....