9911796707
TMI Blog1996 (1) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 9(1)( b )" of the: Act, has 'preferred this appeal under section 54 of the Act. As per section 9(1)( b ) of the Act, no person in India shall "receive, otherwise than through an authorised dealer, any payment by order or on behalf of any person resident outside India". The concurrent finding arrived at is ; that the appellant has received otherwise than through an authorised dealer, payment of Rs. 4O,000 so unauthorisedly on behalf of one Cibar of Colombo, a person resident outside India; that the said Cibar took Rs. 10,000 out of it, that the balance was kept by the appellant, which was seized from him at his residence in India on August 3, 1979. The said balance of Rs. 30,000 was confiscated by the order of the first authority, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gulation Act was considered in the abovesaid C. Arasakumar v. Union of India [1986] Crl. LJ 647 (Mad), and it appears from the said decision that the said circular by one wing of the Central Government, viz ., the income-tax wing, could be applied even with reference to a proceeding under the Foreign Exchange Regulation Act in relation to a migrant from Ceylon. (In the present case, the respondent appears to be one such migrant). But, let the material portions of the said circular be first seen; they are as follows: "In order to avoid inconvenience to persons of Indian origin migrating from Ceylon, in their income-tax assessments in India, the board consider that the cases of bona fide migrant's from that country should be dealt wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia only if the four conditions mentioned therein as extracted above, are fulfilled. Thus, strictly speaking the circular deals only with the standard of proof required in relation to the assessment that has to be made, concerning the funds transferred from Ceylon by migrants from that country. In other words, in the abovesaid circular, it is not said that those migrants should not be assessed to income-tax at all with reference to the funds transferred by them on their migration from Ceylon. It must be further noted that in the abovesaid C. Arasakumar v. Union of India [1986] Crl. LJ 647 (Mad), there is no confessional statement made by the assessee, as in the present case in relation to the abovesaid contravention of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen he leaves for his native place. He stated that the seized amount of Rs. 30,000 represented the same . . . Shri Dhana Singh, manager of Victory Textile Centre was also questioned in this regard. In his statement dated August 3, 1979, he inter alia stated that on July 28, 1979, a person visited their shop and enquired about his, uncle Shri Jothimani Nadar and Augustin. He stated that as both of them had gone out for purchases, the person who called at their shop had delivered a packet containing Rs. 40,000 and asked him to hand over the same to Shri Jothimani Nadar. He added that he handed over the sum of Rs. 40,000 to Shri Jothimani Nadar when the latter came in the evening. He further stated that this amount was kept in the steel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belonged to his client and as there is no possibility, of bringing amount from Ceylon through official channel, he was forced to bring the amount through unauthorised channel. He requested that the seized amount should be released to his client." (emphasis* supplied). Thus, it is clear that the appellant was taking different stands at different times. In his statement dated August 3, 1979, he conceded that the money in question belongs to the abovesaid Cibar of Ceylon, which fact was also corroborated by the statement made on the same day by the abovesaid Dhana Singh, his manager and nephew. But, in his statement on August 20, 1979, though he admitted once again that he received the above said amount on behalf of the abovesaid Cibar, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e received the amount on behalf of Cibar who was a resident abroad. The very fact of receiving the amount on behalf of Cibar would thus amount to contravention of section 9(1)( b )." In the light of the abovesaid facts in the present case, there is absolutely no scope for the application of C. Arasakumar v . Union of India [1986] Crl. LJ 647 (Mad). Further, it must be noted that there is absolutely no explanation even in the retracted statement as to why the earlier statement of August 3, 1979, was not correct. Therefore, there is no merit in the abovesaid contention of learned counsel for the appellant. Nextly, no doubt, learned counsel for the appellant also sought to argue that even though the penalty order may be retained, the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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