9911796707
TMI Blog1998 (4) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... sets including, shares in British compa- nies. She died in U.K. on 13-5-1995. The appellant had gone to London to look-after his mother when she was ailing. The brother of the appellant has also died and the appellant is the sole inheritor of the assets left behind by his mother. The appellant had stayed in U.K. for about seven and half, months before returning to India. For some period the appellant was granted extension of time to hold assets abroad. The appellant has, however, not been granted permission by the RBI to permanently contin- ue to maintain and hold the assets left behind by his mother in England and is required to sell the said assets and repatriate the sale proceeds to India through banking channel. According to respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose, in such circumstances as would indicate his intention to stay outside India for an uncertain period; (ii)****** (iii)a person, not being a citizen of India, who has come to, or stays in, India, in either case- (a)for or on taking up employment in India, or (b)for carrying on in India a business or vocation in India, or (c)for staying with his or her spouse, such spouse being a person resident in India, or (d)for any other purpose, in such circumstances as would indi- cate his intention to stay in India for an uncertain period;" "Person resident outside India" in terms of section 2(q ) means a person who is not resident in India. Section 8 places restrictions on dealings in foreign exchange. This section, inter alia, provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " within the meaning of section 2(p ) and he is a "person resident outside India" within the meaning of section 2(q). The further contention is that the notification dated 17-7-1992 to the extent it prescribes condition of continuous period of stay of not less than one year outside India is illegal as it amounts to amending the Act and legislating, which is not permissible in law. 7. The question whether a person has gone abroad to stay for an uncertain period would necessarily depend upon the facts and circumstances of each case. We are, however, unable to accept the broad proposition urged by the appellant that if a person goes abroad but at that time he does not know for how long he is going to stay abroad, that would indicate his inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued under section 14, the period of contin-uous stay of one year has been provided for to hold foreign exchange outside India. It has to be borne in mind that under the provisions of the FERA, in particular, sections 8 and 14, no person is entitled to keep or hold foreign exchange unless permissible to do so. It is also not a case where the term 'uncertain period' has been defined and the impugned notification provides a different period. Further section 14, inter alia, empowers the Central Government to acquire foreign exchange and order every person in, or resident in India, by issue of notification in the Official Gazette, to sell foreign exchange to Reserve Bank of India. It is in exercise of that power that the notification has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omicile but deals with the concept of only residence. The concept of domicile was held to be relevant with reference to the Citizens Act, 1955 and not with reference to the FERA. The notification in that case proceeded on the question of domicile and, therefore, it was held to be ultra vires. The writ petitioner before the Karnataka High Court was a foreigner, being a U.S.A. citizen. She had married a citizen of India. During raid of the house of her husband, some documents were recovered which showed her Bank accounts in U.S.A. The Enforcement Directorate alleged violation of provisions of the FERA and repudiated her claim that she being a foreign citizen and temporary resident of India was entitled to maintain account in foreign exchange ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that case. On the facts of the case the petitioner was held to be temporary resident in India and excluded from operation of the FERA. It may be useful to reproduce paras 25 and 27 as under: "25. According to section 1(3) of the Act, the Act applies also to all citizen of India outside India and to branches and agencies outside India of companies or bodies corporate, registered or incorporated in India. From this provision, it is clear that the Act applies only to citizens of India and even to those citizens of India who are outside India. Undeniably the petitioner is not a citizen of India at all. It is no doubt true that the Act extends to the whole of India and also to person resident in India, but it does not mean that the Act bring ..... X X X X Extracts X X X X X X X X Extracts X X X X
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