9911796707
TMI Blog1996 (2) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... erein before it and thereby setting aside the penalty of Rs. 7,500 levied by the first authority, in his order, dated July 31, 1984. The said order, dated July 31, 1984, was passed on the ground that the respondent had contravened section 9(1)( a ) of the Act in having made payment of Rs. 35,000 on January 18, 1978, to one Justus Thomas. The abovesaid order, setting aside the order of the Appellate Board is on the footing that the said Justus Thomas has not been proved to be a person resident outside India, as mentioned in section 9(1)( a ) of the Act. The first authority has held that he was a person resident outside India. Learned counsel for the appellant submits that the Appellate Board has grossly erred in coming to the abovesaid c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the day, when the payment was made, viz ., January 18, 1978, the said Justus Thomas was actually in India. Therefore, according to learned counsel for the respondent, the said Justus Thomas cannot be considered as a person outside India, on the date when the payment was made, viz ., on January 18, 1978. We have carefully considered the rival submissions of learned counsel appearing on either side. It is clear to us, after going through the relevant materials in this case that the argument of learned counsel for the appellant has got to be accepted for the following reasons : (1) In this case after the search and seizure were made on April 28, 1982, the enforcement directorate has subsequently obtained a statement, dated April 18, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed passage, the respondent has stated that he came to know the abovesaid Justus Thomas during his visits to the Sultanate of Oman. Taking that passage along with the letter quoted passage stating that at the time of giving the loan, he was hardly having one year acquaintance with Justus Thomas we can come to the conclusion that prior to January 18, 1978, Justus Thomas was resident outside India. Only when he was thus resident outside India, i.e. , in Muscat, the respondent, during his business visits to that place, was meeting the said Justus Thomas. No doubt as against the show-cause notice dated April 22, 1983, stating that the said Justus Thomas was a person in Muscat and a person resident outside India, in the reply, dated April 26, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -resident account, but it was only an ordinary account, as if the said Justus Thomas was a resident in India. But the reasoning of the Appellate Board is not correct. From the mere fact that the said Justus Thomas was having a resident bank account and not a non-resident bank account, it cannot be concluded either way, with reference to his residential status, in the light of the abovesaid relevant provisions of the Act. There is also no need or necessity to go into the question of burden of proof as has been done by the Appellate Board in paragraph 5 of its order. It is so, because it is quite clear, as we have mentioned already, that the said Justus Thomas was only a resident outside India at the relevant point of time, taking into cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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