9911796707
TMI Blog1992 (6) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... a person resident outside India. Indian currency of Rs. 99,800 and certain other documents were seized. Shri G. Singarvelu. an employee of Associated Travel Agency (P.) Ltd. gave his statement on 14-8-1984, inter alia, stating that Shri Parameswaran was the managing director of the company that Vellaian Transport used to have some connection with Associated Travel Agency (P.) Ltd. that on 13-8-1984 Shri Haja representing Vellaian Transport came to the office and gave Rs. 13,000 to the cashier, Shri Ansari, informing that he would come again; and that Shri Haja came again and delivered the balance of Rs. 87,800 which was received by the cashier and a receipt was given to him. Shri Haja admitted in his statement dated 14-8-1984 that he made a payment of Rs. 1 lakh to Associated Travel Agency (P.) Ltd. by order of Shri Hameed Abdul Kader. Shri Parameswaran disclosed in his statement dated 14-8-1984 that Shri Kader of Singapore mortgaged his property when he was in Madras for a sum of Rs. 1 lakh and he (Shri Parameswaran) paid him a sum of Rs. 1 lakh on 27-7-1983. 4. As the above facts disclosed contravention of section 9(1)(a) and 9(1)(b) following show-cause notices were issued: (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India at the relevant time. The amount of Rs. 1 lakh was borrowed by Shri Kader on 27-7-1983 mortgaging his premises at Madras when he was residing in India. That money was repaid for getting the property redeemed and as such, it was only a legitimate transaction between persons resident in India. (ii) When the transaction between a foreigner and an Indian resident relates to any property in India, the question of obtaining approval of the RBI would not arise. Reliance was placed on George Elwin King v. RBI AIR 1974 All. 452 in this regard. (iii) It was for the Investigating Agency to prove that Shri Kader was a resident outside India. The Enforcement Directorate has failed to discharge that burden. While 'visiting card' is not a conclusive evidence to prove the above fact, the Adjudicating Officer has wrongly based his findings on such evidence, ignoring the power of attorney executed by Shri Kader, the affidavit of Shri Kader and his marriage invitation card. Reliance was placed on (2) Hanutram Ramprasad v. CIT [1978] 114 ITR 19 (Gauhati), (2) L. Sohan Lal Gupta v. CIT [1958] 33 ITR 786 (All.) as regards the evidentiary value of the affidavit. It was also submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l (para vii) that he had paid Rs. 1 lakh to Shri Kader. Shri Parameswaran has also stated in his reply dated 20-5-1985 that he paid Rs. 1 lakh as loan to Shri Kader. Thus, it is not in dispute that the appellant, Shri Parameswaran had paid Rs. 1 lakh as a loan to Shri Kader against the said mortgage. However, he maintains that Shri Kader was a person resident in India and, as such, the said payment did not violate the provisions of section 9(1)(a). This plea has also been raised as regards allegation contained in SCN-I. SCN-I 11. The allegation levelled against the appellant, Associated Travel Agency (P.) Ltd. vide SCN-I is that Associated Travel Agency (P.) Ltd. had received Rs. 1 lakh from a local person other than an authorised dealer in foreign exchange by order or on behalf of Shri Kader of Singapore and thereby violated section 9(1)(b). Shri Parameswaran stated in his statement dated 16-8-1984 that the amount of Rs. 1 lakh was received on 13-8-1984 towards the repayment of loan made by Shri Kader from Singapore. Shri Parameswaran also stated in his statement dated 14-8-1984 that at Singapore, Shri Kader informed him that he was making arrangements to pay back the mortgaged mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant time, reads as follows : ZAMROOTH GEMS Gems Diamonds Importers Exporters Mohd. Hameed Abdul Kader Managing Partner Block 9, Room 03-23Phone3382544 Selegie House, Singapore 07183381164. 13. A perusal of the above contents indicates that Shri Kader was managing director of the Singapore firm mentioned in that card. The fact that he was M.D. of that firm would indicate that Shri Kader was residing at the relevant time in Singapore, particularly when the office of that company of which he as the M.D. was based in Singapore. Further, on the other hand, the records also indicate that Shri Kader was also a partner in Vellaian Transport, Madras but he was not an active partner in that firm as the management was entirely run by another 'partner-driver'. So, the fact that he was a partner in an Indian firm, would not be enough to disprove that Shri Kader was a person resident outside India at the relevant time whereas the fact that he was an M.D. in the said Singapore firm would clearly indicate that he was residing in Singapore only. This is also clear from the statement of Shri Parameswaran dated 14-8-1984 in which he has stated that though Shri Kader was a partner in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t plea was raised to show that Shri Kader became resident of Singapore only after marriage, then it would amount to admitting that he was a person resident outside India at the time when he repaid the loan. That apart, the mere fact that he was an income-tax assessee in India would not also be sufficient to show that he was a person resident in India at the relevant time, particularly when adequate evidence, as already stated above, exists to prove that he was actually not a person resident in India but was a person resident outside India at the relevant time, i.e., at the time when Shri Parameswaran paid him Rs. 1 lakh and at the time when he repaid the same through Shri Haja. 14. The Madras High Court in its judgment mentioned in para 9 above observed that No doubt, the burden is upon the respondent but as they had relied upon the corroborating statements on material particulars, to dispel the inference drawn on the contents of these statements, appellant having not produced any material, there was no error of law or fact committed, in proceeding on the basis that she was a non-resident . As already discussed in the preceding paras, the documents filed by the appellants cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s High Court in M.S.M. Syed Mohammad Bukhari's case (supra), para 8, mentioned above. 18. There appears to be no reason as to why the statement made by the above persons should not be believed. The records of the case do not also indicate that the said statements were obtained by force. I rather find from perusal of the records that the above said statements were voluntarily made by the said persons. 19. In the light of the above, I am of the opinion that the finding of the Adjudicating Officer that Associated Travel Agency (P.) Ltd. and Shri Parameswaran had contravened section 9(1)(b) and 9(1)(a) respectively is correct and the same is confirmed. 20. Coming to the question of confiscation of the sum of Rs. 99,800, it may be stated that the Adjudicating Officer has found that the said sum was involved in the contravention and that by receiving a payment of Rs. 1 lakh in an unauthorised manner, the country has lost the foreign exchange to the extent of Rs. 1 lakh and, therefore, the Adjudicating Officer felt that it was justified that the sum of Rs. 99,800 be confiscated to the Central Government under section 63. This indicates that the Adjudicating Officer has applied his min ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
