9911796707
TMI Blog2022 (9) TMI 1266X X X X Extracts X X X X X X X X Extracts X X X X ..... toria Street, London E.C.4. 3. Mrs. Meerabai Dawson died on 16th December 2001. The Will dated 30th November 1993 was filed for granting of probate before the Hon'ble High Court at Ipswich, England and probate was granted on 11th March 2002. Relying on this probate, the Executors of the Will applied for administration of Mrs. Meerabai Dawson's estate in India. The Executors of the Will engaged petitioner as legal counsel for the disposal of the estate in India of Mrs. Meerabai Dawson and repatriate sale proceeds to Salvation Army, U.K. For this purpose, the Executors granted a Power of Attorney dated 15th May 2006 in favour of one Mr. Sameer Tapia and two erstwhile associates of petitioner firm empowering them to execute the sale of the Indian properties forming part of the Indian estate of Mrs. Meerabai Dawson. One of the major property Mrs. Meerabai Dawson inherited from her parents, who were resident Indians, was a landed property at Adayar, Chennai. It was found that there were many encroachers in the said property. To cut the matter short, at the time of selling the property, petitioner settled with all the encroachers and that left finally surplus of about Rs.5,01,47,271/- ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulations 2000. These two provisions have been reproduced in the show cause notice and they read as under : "Whereas Section 6(3) of FEMA reads as under: (3) without prejudice to the generality of the provisions of subsection (2) the Reserve Bank may, by regulation, prohibit, restrict or regulate the following- (a)......... (b).......... .............. ............... (i) Acquisition or transfer of immovable property in India, other than a lease not exceeding five years, by a person resident outside India; And Whereas Regulation 8 of the Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations 2000 read as under: Prohibition on transfer of immovable property in India : Save as otherwise provided in the Act or regulations, no person resident outside India shall transfer any immovable property in India." 5. We are at a loss to understand how petitioner has contravened these provisions. First of all Section 6(3) of FEMA is only an enabling provision which provides that without prejudice to the generality of the provisions of sub-Section (2) of Section 6 of FEMA, RBI may by regulation, prohibit, restrict or regulate, and und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 269UD of the Act, provisional conclusions are required to be briefly specified. These provisional conclusions are required to be briefly specified so that the affected persons could correct or controvert the same effectively. If a vague show- cause notice is given without specifying anything as has been done in this case or without specifying the grounds for holding that the property is required to be purchased under Section 269UD of the Act, then it can be held that reasonable opportunity of showing cause has not been given. The transferor and transferee would be totally unaware of the grounds which had prompted the appropriate authority to arrive at prime facie conclusion that the power under Section 269UD(1) of the Act was required to be exercised and the property should be compulsorily purchased. The Division Bench of Gujarat High Court in Om Shri Jigar Association vs. The Union of India and others [(1995) 80 Taxman 514/1994] 209 ITR 608 at paragraphs 7,8 and 9 held as under :- "7. In our view, considering the findings given above, it is not necessary to deal with the aforesaid contention exhaustively. However, it should be noted that issuance of a show-cause notice is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charges and allegations was unsatisfactory. Even if we were to assume, though there is no reasonable ground for this assumption, that Government did not have in mind the contents of Charge 1(a) while serving this 'Show-Cause-Notice', there is nothing in the 'Show- Cause-Notice' to give any indication that the particular allegations regarding which the appellant had failed to furnish a satisfactory explanation were referable only to Charge 1(b). The notice is vague on other grounds as well. As one reads the first paragraph of the notice, the questions that at once assail one's mind are many : In what way was the explanation of the appellant unsatisfactory ? Which part of the appellant's explanation was so unsatisfactory ? On what materials did the Government think that the appellant's explanation was unsatisfactory ? It is to our mind essential for a 'Show-Cause-Notice' to indicate the precise scope of the notice and also to indicate the points on which the officer concerned is expected to give a reply. 9. The same would be the position here. It would be difficult for the transferor and the transferee to show cause as to why the property should ..... X X X X Extracts X X X X X X X X Extracts X X X X
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