2013 (3) TMI 93 - HC - FEMA

Violation of sections 3(a), 3(d) & 4 of FEMA - assessee contested against on no proper opportunity given, thus violation of principles of natural justice - Held that - As clear from para 15 of the impugned order that notice was served vide letter dated 4.4.2008, under mahazar dated 3.4.2008 in terms of Rule 9(c) of FEMA (Adjudication Proceedings and Appeal) Rules 2009. But none appeared on the date of hearing. However, by letter dated 7.4.2008 the petitioner herein filed a reply memorandum dated 11.7.2007 giving the details of the stand taken in opposition to the adjudication. Thereafter also several opportunities were given to which the petitioner as well as his counsel did not respond and participate in the proceedings. Therefore, the authority had no other option except to pass final order. Hence, the plea of no opportunity given and there is a violation of principles of natural justice has to be rejected and is accordingly rejected.

Summary

Issues:
Violation of principles of natural justice in conducting an enquiry.

Analysis:
The petitioner filed a Writ Petition seeking the quashing of an order dated 31.03.2009 passed by the first respondent, alleging a lack of proper opportunity and a violation of principles of natural justice. The respondent's counsel argued that the petitioner had been duly notified for a personal hearing, as evidenced by the steps taken to serve notice and the appearance of a lawyer on behalf of the petitioner. The impugned order detailed the numerous attempts made to serve notice on the petitioner, including the submission of a reply memorandum by the petitioner's advocate. Despite multiple opportunities, the petitioner and their counsel failed to respond and participate in the proceedings, leading to the final order being passed. The court found that the authority had taken sufficient steps to provide an opportunity for the petitioner to be heard, thereby rejecting the claim of a lack of opportunity and violation of natural justice.

The court noted that the notice was served in accordance with Rule 9(c) of FEMA (Adjudication Proceedings and Appeal) Rules 2009, and the petitioner's advocate had submitted a detailed reply memorandum contesting the allegations. The advocate denied the charges against the petitioner, claiming innocence and alleging that statements obtained from the petitioner were coerced under duress. The advocate further argued that seized documents did not belong to the petitioner, and the petitioner was not given the opportunity to cross-examine co-accused individuals. Despite these submissions, the petitioner and their counsel failed to engage further in the proceedings, leading to the authority proceeding to pass a final order. The court emphasized that the petitioner had multiple opportunities to present their case but chose not to participate, resulting in the dismissal of the claim of a lack of opportunity and violation of natural justice.

The court disposed of the Writ Petition, allowing the petitioner to pursue the matter before the competent authority in accordance with the law. The petitioner was granted the right to seek a set off of the period during which the writ petition was pending before the court for the purpose of limitation. Additionally, the petitioner was advised to explain any delays in filing an appeal to enable the appellate authority to consider the plea of limitation on its merits. The judgment concluded by stating that no costs were awarded, and the connected miscellaneous petition was closed, bringing the legal proceedings to an end.