2019 (2) TMI 963 - HC - FEMA

Grant of stay - pre-deposit - interim order granted by the Appellate Tribunal for SAFEMA, FEMA, PMLA, NDPS, PEPT, New Delhi-3 - Tribunal failed to consider the income tax returns of the appellant for the year 2018-19, but only noted the income tax returns filed for the years from 1999-2000 to 2002-2003 - Held that - Without going into the controversy as to whether the appellant had produced the current income tax returns or not, we deem it appropriate that the appellant shall be given one more opportunity to place all the records before the Tribunal, so that the Tribunal can take a decision as to whether the interests of the Revenue stand sufficiently safeguarded on account of the attachment over the immovable property of the appellant, which is stated to be worth of ₹ 3 Crores and as to whether the appellant s financial condition precludes from making a predeposit. For such a reason alone, we allow this appeal, set aside the order of the Tribunal and remand the matter to the Tribunal for a fresh consideration.

Summary

Issues involved: Challenge to interim order for deposit, consideration of income tax returns, financial hardship claim, remand for fresh consideration.

Analysis:
The appeal challenges an interim order by the Appellate Tribunal directing the appellant to deposit ?39 lakhs for a stay. The appellant contends that the Tribunal overlooked the income tax returns for 2018-19, focusing only on returns from 1999-2000 to 2002-2003. The appellant's counsel argues the appellant's financial position is precarious, citing attachment of properties worth ?3 crores by Customs and Enforcement authorities under the Prevention of Money Laundering Act, 2002. The appellant asserts that had the Tribunal considered returns from 2013-14 to 2018-19, the order for the deposit might have been different.

The Standing Counsel for the respondent maintains that the Tribunal duly noted the absence of 2018-19 income tax returns and found no justification for not examining the presented documents. The High Court, refraining from delving into the dispute over the submission of current tax returns, decides to grant the appellant another chance to furnish all records before the Tribunal. This opportunity aims to enable the Tribunal to assess whether the Revenue's interests are adequately protected due to the attachment of the appellant's ?3 crores property and to evaluate if the appellant's financial circumstances justify a waiver of the pre-deposit requirement.

Consequently, the High Court allows the appeal, overturns the Tribunal's order, and remands the case for a fresh review. No costs are imposed, and the related miscellaneous petition is closed. The Tribunal is directed to consider any documents the appellant presents during the upcoming hearing or subsequent dates to determine if the appellant's plea of undue hardship warrants the exercise of powers under the Second Proviso to Section 19(1) of the Foreign Exchange Management Act, 1999.