TaxTMI 
TaxTMI 
2024 (3) TMI 1533
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....a vide the sale deed dated 18.02.2004. The penalty of Rs. 4,80,000/- was imposed on the appellant under Section 13 (1) of the Act of 1999 and the property was also confiscated under Section 13 (2) of the said Act. 3. The counsel for the appellant submitted that the appellant was not a resident outside India but was a person resident in India as per Section 2 (v) of the Act of 1999. As per the definition of "person resident in India", one is required to reside in India for more than 182 days during the preceding financial year. The appellant purchased the property in question on 18.02.2004 and to find out whether he was a "person resident in India", relevant financial year would be 2002-2003 and not the financial year 2003-2004. The appellant resided in India during the financial year 2002-2003 for more than 182 days, which has not been disputed by the respondents. In view of the above, the appellant was not required to take special or general permission of the RBI to purchase the property in India. The respondents ignored the definition of the "person resident in India" while passing the order. 4. Detailed facts of the case were given to show that the appellant stayed in Indi....
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....ould be 2002-2003 for the purchase of property in the month of February, 2004 and it is a fact that appellant resided in India for more than 182 days in the financial year 2002-2003. He, however, could not fall in the definition of a "person resident in India" looking to the other conditions given under Section 2(v) of the Act of 1999. To fall under the definition of a "person resident in India", not only one should reside in India for more than 182 days in the previous financial year but further condition is not to take employment outside India in the said financial year i.e. 2002-2003 in this case. 9. The appellant had admittedly taken employment in England in the month of March, 2003 and thus could not qualify to fall in the definition of a "person resident in India". He was accordingly required to take general/special permission of RBI for the purchase of immoveable property. Being a resident outside India, the appellant was not eligible to acquire the property in India without the general/special permission of RBI, as required under proviso to Regulation 3 of Foreign Exchange Management (Acquisition and Transfer of Immoveable Property in India) Regulations, 2000 (in short "....
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....r carrying on in India a business or vocation in India or (c) for any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period; (ii) to (iv)........." The definition qualifies a person to be resident in India if one has resided in India for more than 182 days during the preceding financial year but it does not include a person who has gone out of India or who stays outside India for taking up employment or carrying on business or vocation outside India. 13. In the instant case, purchase of the property is vide the sale deed dated 28.02.2004. The preceding financial year for it would be year 2002-2003. The question would be as to whether the appellant resided in India for more than 182 days in the financial year 2002-2003. The fact aforesaid has not been disputed by either of the parties, rather it is an admitted case that the appellant resided in India for more than182 days in the preceding year 2002- 2003. The fact, however, remains that during the financial year 2002-2003, the appellant took employment in England in the month of March, 2003. Thus, despite completion of the period of more than 182 days, t....
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....ation 8 of Regulation 2000 read with Section 6(3) of the Act of 1999. Thus, the respondents had rightly invoked Section 13(1) and 13(2) of the Act of 1999. Both the provisions are quoted hereunder: "13. Penalties.-(1) If any person contravenes any provision of this Act, or contravenes any rule, regulation, notification, direction or order issued in exercise of the powers under this Act, or contravenes any condition subject to which an authorisation is issued by the Reserve Bank, he shall, upon adjudication, be liable to a penalty up to thrice the sum involved in such contravention where such amount is quantifiable, or up to two lakh rupees where the amount is not quantifiable, and where such contravention is a continuing one, further penalty which may extend to five thousand rupees for every day after the first day during which the contravention continues. (1A) to (1D)....... (2) Any Adjudicating Authority adjudging any contravention under sub-section (1), may, if he thinks fit in addition to any penalty which he may impose for such contravention direct that any currency, security or any other money or property in respect of which the contravention has ta....