TaxTMI 
TaxTMI 
2026 (6) TMI 801
X X X X Extracts X X X X
X X X X Extracts X X X X
....O/JD(JK)/2014-20 dated 28.06.2016. 2. Writ Petition No.698/2018 is filed by the petitioners therein challenging the Order No. JD/BGZO/O3/ 2016 dated 28.06.2016 passed by the Joint Director of the Directorate of Enforcement, Bengaluru Zonal Office. MSA 40/2020 3. From the record, it appears that acting under the complaint dated 09.03.2015 made by the Deputy Director of the Directorate of Enforcement, Bengaluru, under Section 16(3) of the Foreign Exchange Management Act, 1999 [FEMA] against the respondents, alleging violation of various provisions of FEMA read with the provisions of various extant Regulations, the Joint Director issued a show cause notice dated 13.03.2015 to the respondents in the MSA as to why adjudicating proceedings under Section 16 of the FEMA should not be held against them for the contraventions and why the assets mentioned in the show cause notice and belonging to the respondent be not confiscated under Section 13(2) of the FEMA. 4. By means of the adjudication order dated 28.06.2016, the Joint Director found that the respondents had contravened the provisions of FEMA and accordingly they were found guilty. Exercising powers under Section 13(1) of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed donations from various Foreign Nationals other than through authorized banking channels to the tune of Rs. 2,15,21,972/-, between the years 2009 to 2014. As far as the opinion expressed by the Tribunal that the respondents had resided in India for more than 182 days during the course of the preceding financial year is concerned, the same is not disputed by the learned counsel for the appellant. However, exception has been drawn to the fact that the Tribunal proceeded to hold that for that period of residence alone the respondents were persons resident in India within the definition of Section 2(v) of FEMA. It is stated that under Sub-clause B(b) of Clause (i) of Section 2(v) of FEMA excludes a person, who has come to or stays in India, otherwise than for carrying on in India a business or vocation in India, or for any other purpose, in such circumstances, as would indicate his intention to stay in India for an uncertain period. Therefore, the respondents would not fall within the definition of the term "person resident in India". 8. It is pertinent to refer to the provision of Section 2(v) of the FEMA, which reads as follows. "Section 2. In this Act, unless the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty by a person resident outside India; (c) transfer or issue of any security or foreign security by any branch, office or agency in India of a person resident outside India; (d) any borrowing or lending in foreign exchange in whatever form or by whatever name called; (e) any borrowing or lending in rupees in whatever form or by whatever name called between a person resident in India and a person resident outside India; (f) deposits between persons resident in India and persons resident outside India; (g) export, import or holding of currency or currency notes; (h) transfer of immovable property outside India, other than a lease not exceeding five years, by a person resident in India; (i) acquisition or transfer of immovable property in India, other than a lease not exceeding five years, by a person resident outside India; (j) giving of a guarantee or surety in respect of any debt, obligation or other liability incurred,- (i) by a person resident in India and owed to a person resident outside India; or (ii) by a person resident outside India. (4) A person resident in India may hold, ow....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ys during the course of the preceding financial year. 11.1. The definition of the term "person resident in India" with reference to part (B) of sub-clause (i) of Clause (v) of Section 2 of FEMA, can also be understood by reading it in juxtaposition with part (A) of sub-clause (i) of Clause (v) of Section 2. In Part (A) the words "otherwise than" have not been mentioned. 12. Given the aforesaid definition of 'person resident in India' and the fact of residence of India by the persons, who are the respondents, exceeding 182 days not being denied by the appellant herein, and given the fact that the concerned respondents came to India on a business visa and carried on business, and, those respondents do not fall under the exceptions provided in sub-clause (i) of Section 2 (v) of FEMA, the learned Appellate Tribunal was justified in holding that the concerned respondents were "persons resident in India". That being the case, the provision of Regulation 3 of the Foreign Exchange Management (Investment in Firm or Proprietary Concern in India) Regulations, 2000 would not apply to the respondents. Similarly, the provisions of the Foreign Exchange Management (Permissible Capital Accoun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ailable. 19. In view of the facts and circumstances, we do not find any material that would persuade us to disagree with the opinion of the Tribunal. We have also applied our independent mind to the facts of the case and the law involved and find that the order of the Tribunal is justified. The impugned order setting aside the order dated 28.06.2016 passed by the Joint Director, is upheld. No question of law is involved in the case that would merit interference. This appeal is therefore dismissed. In W.P.No.698/2018: 20. This Writ Petition is filed seeking the following prayer: i. Issue a Writ, Order or direction in the nature of a certiorarified mandamus quashing the Order No. JD/BGZO/03/2016 dated 28.06.2016 produced at ANNEXURE-G in so far as the Petitioner's right of peaceful possession and enjoyment of the Petition Schedule premises. i(a) Issue a writ, order or direction in the nature of mandamus directing the respondents to handover the confiscated property i.e., property bearing Site No.41 and 56 and Khata No.88, situated in Muniyappa Layout, Chelekere, Bengaluru -560 043, morefully mentioned in the Schedule pursuant to the order dated 12.09.2022 c....