Case Details: Pradeep Mishra v. Special Director, Directorate of Enforcement - [2025] 176 taxmann.com 876 (SAFEMA - New Delhi)
Judiciary and Counsel Details
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G.C. Mishra and BALESH KUMAR, Member
- Pawan Kumar and Ramni Yadav, Advs. for the Appellant.
- Shoumendu Mukherji, ED Panel,
- Aniruddha Ghosh and Ms. Megha Sharma, Advs. for the Respondent.
Fact of the Case
In the instant case, the appellant was a permanent resident of India. In the year 2000, the appellant left India after being employed by a Saudi Arabian company. The appellant purchased agricultural land in India from his earnings abroad. A show cause notice was issued to the appellant for contravention of section 6(3)(i) of FEMA, read with regulation 3(a) of the FEM (Acquisition and Transfer of Immovable Property in India) Regulations.
The appellant submitted that he had decided to forego his NRI status forever and came to India. It was noted that while it was true that the appellant returned from abroad intending to take up employment or vocation in India, it could not be denied that he did so in May 2012, which falls in the financial year 2012-13, i.e. from 01.04.2012 to 31.03.2013.
The appellant came to India for good and purchased agricultural land in the financial year 2012-13. In the preceding financial year, which would determine his residential status, he neither stayed in India for more than 182 days nor came to India and stayed thereafter during the said year.
The Appellate Tribunal observed that the appellant could not be held as a person resident in India. Therefore, the impugned order by the Adjudicating Authority imposing a penalty upon the appellant for alleged contravention was justified.
Tribunal Held
The Appellate Tribunal held that since the appellant had paid for the purchase of agricultural land from his lawful earnings abroad and might not have been aware of the provisions of FEMA, the penalty was to be made proportional to the contravention indulged in by the appellant by reducing it to Rs. 2 lakhs.
List of Cases Reviewed
List of Cases Referred To
- Shamrao Vishnu Parulekar v. District Magistrate AIR 1952 SC 324 (para 5),
- Rayala Corporation (P) Ltd. v. Director Of Enforcement AIR 1970 SC 494 (para 5),
- Kolhapur Cane Sugar Works Ltd. v. Union of India 2000 taxmann.com 1065 (SC) (para 5),
- General Finance Co. v. Asstt. CIT [2002] 124 Taxman 432/257 ITR 338 (SC) (para 5),
- Mithilesh Kumari v. Prem Behari Khare (1989) 2 SCC 95 (para 6),
- Shree Bhagwati Steel Rollling Mills v. CCE [2015] 63 taxmann.com 310/[2016] 53 GST 215 (SC) (para 6),
- Shell India Markets Pvt. Ltd., In re [Appeal No. FPA-FE-43-44/BNG/2023, dated 8-4-2024] (para 6),
- Fibre Boards Pvt. Ltd. v. CIT [2015] 62 taxmann.com 135/376 ITR 596 (SC) (para 9),
- SEBI v. Shriram Mutual Fund [2006] 68 SCL 216 (SC) (para 11) and Director of
- Enforcement v. MCTM Corporation Pvt. Ltd. [Manu/SC/ 0300/1996] (para 13).
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