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TMI Blog2019 (2) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... ift or inheritance then even in that situation the provision of section 4 shall not apply. The reserve bank has not prescribed any limit for holding the foreign exchange in case the foreign exchange has been acquired by gift or inheritance - even if for a moment assuming that the provision of section 6(4) and section 9(d), (e) of the Act are not applicable in the instant case even than the appellant should not be held guilty for contravening the provisions of section 4 of the Act The appellant should not be considered to have violated the provisions of section 4 of the Act and Regulation 3 of the Foreign Exchange Management (Realisation, Repatriation and Surrender of Foreign Exchange) Regulations, 2000 in view of peculiar facts and circumstances of the present matter - appeal allowed - decided in favor of appellant. - FPA-FE-54/LKW/2014, FPA-FE-55/LKW/2014 - - - Dated:- 23-1-2019 - Justice Manmohan Singh Chairman For the Appellant : Mr. Shakti K. Pattanaik, Advocate., Mr. Mukesh Gupta, Advocate For the Respondent : Mrs. Aagam Kaur, Legal Consultant, Mr. Prashant Pandey, Legal Consultant JUDGMENT FPA-FE-54/LKW/2014 FPA-FE-55/LKW/2014 1. By this orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secretary of the said society in the year 1985 and was continuing in the said capacity till September, 2013. As Buddist Bhiku (Monk) he was receiving an honorarium of INR 2,000/- till August 2013 and according to him, he was following the rules and regulation of the society. d) The Mahah Bodhi Society of India used to receive contribution/donation from pilgrims, institution, association worldwide for propagating and developing Buddhism since its inception. The activities of the Maha Bodhi Society of India are dependent on donations/charities made by foreign pilgrims. e) Its activities include resurrection and restoration of holy places like MulagandhKuti Vihar, Sarnath, Lumbini, Sanchi, Kushinagar, Bodhgaya. The society has Buddhagaya Centre, Sarnath Centre, Lucknow Centre, New Delhi Centre, Lumbini Centre, Bhubaneswar Centre, Mumbai Centre, Shravasti Centre, Nowgarh Centre, Chennai Centre, Sanchi Centre located in India and overseas branches located in Japan, Korea, Hong Kong, England, America etc. f) The society publishes four journals i.e. The Mahabodhi (in English), Dharmadoot (In Hindi), Sambodhi (in Hindi), Kanlinga (in Oriya English). These places of high religiou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thers. Copy of the order dated 26.03.2002 is annexed herewith as Annexure-6. l) On 05.12.2003 the case titled CBI Vs Maha Bodhi Society of India Ors was decided by the Hon ble Court of Ms. Reena Singh Nath and the Maha Bodhi Society was imposed a fine of ₹ 50,000/- and the fine was duly deposited. l) The matter remaining thus the senior trust service office of Couts Co. Mr. Steve Welham approached the Maha Bodhi Society of India to transfer UKP 1,75,000/- to the account of Maha Bodhi Society of India, in consonance and pursuant to the will dated 06.12.1956 of Late Miss Grace C. Lousbery and Late Madam Marguerite-La Fuent s in favour of the Maha Bodhi Society of India. The letter dated 11.09.06 and 07.10.06 written by the Senior Trust Officer in this regard are filed as Annexure - 7 Colly. m) Pending registration under Foreign Contribution Regulation Act 1976 the fund arising out of the gift deed dated 06.12.1956, was instructed to be transferred to the account of the Society located in Sri Lanka and the said amount of UKP 1,75,000 was credited to the account of the society with the Bank of Ceylon. The instruction was issued on the bonafide belief that there was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 was permitted to accept foreign contribution upto a ceiling of ₹ 5 Lakhs (Rupees Five Lakh) per month i.e ₹ 60 Lakh (Rupees sixty lakh) per annum, beginning from the year 2002-03, subject to the condition that the monthly limit of utilization of funds shall continue to remain ₹ 3.61 lakh for its various centers. 9. It is also a matter of fact that the society moved an application on 24/10/2005 in the office of the Ministry of Home Affairs at New Delhi (which is at page no. 27-35 of the paper book) for obtaining prior permission of the Central Government under the Foreign Contribution (Regulation) Act, 1976 for acceptance of foreign contribution because the society was prohibited from accepting foreign contribution. A fund of 1,64,465.18 in Pound-sterling is to be transferred to Maha Bodhi Society of India from the late Miss Grace Lounsberry the late Madame Marquerite La Fuente s settlement to be utilized for 2550th Buddha Jayanti in 2006. Letter dt. 26th August, 2005 from Coutts Co., Trustee Department, P.O Box 1236, 6 High Street, Chelmsford, Essex CMI 1BQ and London are filed . 10. It is the case of appellant that it waited for permission to this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tlement deed was executed voluntarily by the settlers, it was revocable during the life time of the settlers and the property under consideration was to be transferred to the beneficiary after the death of the settlers. 15. There is no dispute that the appellant being a person resident in India has inherited this amount as per the voluntary settlement deed executed by the settlers being person resident outside India. 16. As per settled law, the word inheritance has to be given a wider meaning here. The word inheritance here cannot be limited to mean the asset acquired by a Human being/ natural person upon the death of a natural person because as per section 2(v) of the Act a person resident in India includes a legal person. Thus, the property passing upon death of a person being resident outside India to a person resident in India whether the person resident in India is a natural or a legal person. 17. Section 9 of the Act provides as under:- Exemption from realization and repatriation in certain cases. The provisions of sections 4 and 8 shall not apply to the following, namely:- a) ------------ b) ------------ c) ------------ d) ------------ e) Foreign ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant would not have realized the amount and keep on waiting for permission to this effect from Home Ministry then either the receipt of the foreign exchange would have delayed or the trustee would have transferred this amount to some other person as per the laws of their country. In that situation there would have been violation of regulation 3 of the Foreign Exchange Management (Realization, Repatriation and Surrender of Foreign Exchange) Regulations, 2000. Such situation has not happened. The entire amount was withdrawn by the applicant. By transferring these funds in Ceylon and by making various application to the Home Ministry for granting permission for repatriation of this amount, the appellant have taken all reasonable steps to realize and repatriate the foreign currency in India but the amount could not be repatriated to India because the Home Ministry did not granted the permission for the repatriation of the foreign exchange to India. If the appellant would have directed the trustee to transfer this amount to bank account maintained in India then may be there would have been no violation of section 4 of Foreign Exchange Management Act, 1999 and regulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the same. The principle of natural justice has been totally violated. The Adjudicating Authority has passed the order for confiscation as a matter of course without considering the totality of the facts of the case and by without giving any justification for the same. 22. The nature of this transaction i.e. the Realisation of the foreign exchange as per the Will of the foreign national being resident outside India doesn t spell any conscious wrong doing on the part of the appellant. The possession of foreign exchange was neither unlawful nor has remained unexplained. The appellant before realization of this amount outside India has requested to grant permission for the repatriation of this amount to India. The said request of the appellant is to be determined as per law. It was held in the case of CP Devasay Vs. Directorate of Enforcement (1998) 41 Taxman 39 (FERAB) and in the case of Dr. V. G. Joseph Vs. Additional Director (2004) 52 SCL 530 (ATFE) that in such circumstances the order for confiscation is unjustified. The finding in this regard are against the law and facts and circumstances of the present matters. The order for confiscation is based on assumptions and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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