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Mere newspaper cuttings does not amount to proof of sharing commercial expertise: Bombay HC upholds Tribunal’s decision.

 

CASE TITLE – Hindustan Export & Import Corporation Private Limited v. The Deputy Commissioner of Income Tax

CASE NUMBER – Income Tax Appeal No. 225 of 2002

DATED ON – 07.05.2024

QUORUM – Justice K.R. Shriram and Justice Dr. Neela Gokhale

FACTS OF THE CASE

The Appellant is a private limited company. An agreement was executed on 2nd February, 1987 by and between Appellant and M/s. Arianespace France (“Arianespace”), the shareholders of which, it is stated, are all Government-controlled companies belonging to European Space Agencies and unconnected with Appellant. The main business of Arianespace was to launch satellites and place them in orbit above the Earth. Arianespace was desirous of reducing its costs by placing bulk orders on its subcontractors based on information about launch business worldwide, collected from its international network of consultants. It is Appellant’s case that it was one such consultant of Arianespace appointed under the said agreement. The agreement was revised and extended on 10th December, 1987, 20th February, 1990 and 12th March, 1993. As per the latest agreement, the Appellant was obliged to provide information to Arianespace regarding current regulations and market conditions in India. A lumpsum consideration was agreed upon and was revised upwards from time to time. The duration of the last agreement was up to 31st December 1996. Appellant received a sum of Rs.75,11,850/- from Arianespace during the relevant year being AY 1995- 96. After deducting 20% towards the expenditure, Appellant claimed a deduction of Rs.30,40,740/- under Section 80-0 of the Act in its return of income filed for AY 1995-96. The Assessing Officer (“AO”) in his assessment order dated 25th March, 1998 refused the deduction on various grounds including a) the information provided by the Appellant under the said agreement comprised only of newspaper cuttings freely available and hence, cannot be treated as ‘information concerning commercial knowledge and experience’; b) there were no written reports of any analysis; c) Appellant had no experience in Satellite business; and d) there was nothing to indicate that the information was utilized outside India. The appellant challenged the assessment order before the Commissioner of Income Tax (Appeals) which appeal was dismissed by an order dated 18th March, 1999. The aggrieved Appellant preferred an appeal to the Income Tax Appellate Tribunal (‘ITAT’), which also confirmed the non-allowance of deduction under Section 80-0 of the Act by its order dated 8th November, 2001.

ISSUE

Whether on the facts and in the circumstances of the case and in law the Tribunal ought to have allowed the deduction under Section 80-0 of the Income Tax Act, 1961?

LEGAL PROVISIONS

Section 80-0 of the Income Tax Act of 1961, which prescribes the conditions to be fulfilled for an Indian person or Enterprise to claim deductions in respect of royalties, etc from foreign enterprises.

CONTENTIONS BY THE APPELLANT

It was Appellant’s case that the information required to be sent in terms of the agreement was sent to Arianespace regularly by post and assessments and analyses were discussed orally at personal meetings with representatives of both sides to maintain confidentiality of information.  The Senior Counsel appearing for the Appellant stated that the rejection of the Appellant’s claim under Section 80-0 of the Act is perverse and completely contrary to the facts of the case. According to him, the Appellant had received fees in consideration for furnishing information concerning commercial knowledge and for rendering technical services and the Tribunal ought to have appreciated the absence of written reports on account of confidentiality of information. Relying on the provision of Section 80- 0 of the Act existing at the relevant time, he also submitted that the Section only required approval of the Chief Commissioner of Income Tax (‘CCIT’) to the agreement executed. The approval of the CCIT was granted after referring to the agreements furnished to him and was for ‘Assessment Years 1991-92 onwards till income under the agreement accrues fully subject to a disallowance of 20% of the payment as attributable to services rendered in India.’ The appellant pointed out that firstly, an agreement existed, secondly, fees have been paid to it by Arianespace for valuable commercial information which the company used outside India, thirdly, the fees received by Appellant were in convertible foreign exchange, which were all requirements of the provision. Once, there exists approval by the CCIT for all subsequent years the AO is bereft of his powers to re-examine and reconsider the approval while passing the assessment order.

CONTENTIONS BY THE RESPONDENT

The Respondent contests the Appeal on the ground that the mere sharing of newspaper cuttings does not amount to information concerning industrial, commercial, or scientific knowledge, experience or skill which is a pre-condition to seek deduction under Section 80-0 of the Act. Appellant has been unable to provide any analysis, report or assessments purportedly furnished to Arianespace and hence, Appellant is not eligible for deduction under Section 80-0 of the Act. The crux or the basis of the income allowed as a deduction under Section 80-0 must be necessarily determined by the Assessment Officer on the facts of each case. The lead counsel for the Respondent submits that the approval of the CCIT is qualified and always subject to any amendment to the provision of the Act and subject to legal conditions.

COURT ANALYSIS AND JUDGEMENT

From the contents of the communications of Appellant with the CCIT, two things stood clear, firstly, the information sought by Arianespace was to be collected from a vast number of user departments and secondly that analysis and interpretation of the information was done at quarterly meetings between the parties. It was based on these two pivotal clarification statements that the CCIT approved the agreement. Admittedly, the agreements were extended from time to time, albeit with a revised scope of work, however, the Appellant insisted that the approval once accorded operated for all subsequent AY’s from 1991-1992 till the existence and continuity of the agreement. During the assessment proceedings of AY 1995- 1996, the Appellant in its response dated 12th March, 1988 to a query posed by the AO stated that while newspaper articles are regularly sent, the evaluation and assessment projects are orally discussed over the phone and when they meet officials of Arianespace in India or France. It informed the AO that no reports were prepared by it and neither Appellant nor Arianespace maintained any record of any telephonic conversations nor any meetings convened as per its claim. It was in these circumstances that Appellant’s claim of deductions under Section 80-O was rejected by the AO. The Court was unable to accept the contention of the Appellant. Approval was accorded by the CCIT on the basis of specific statements made by the Appellant that information to be shared pursuant to the agreement was collected and collated from User Departments and analysis and assessments were to be done during quarterly meetings. They Court further mentioned that Newspaper cuttings are not precluded from being shared as information but by themselves they do not constitute any commercial expertise. And also were of the view that the AO is well within his rights to request Appellant to furnish proof of sharing the information with Arianespace for which approval was granted by the CCIT and from the replies of Appellant to the AO, it was quite clear that Appellant had not provided material to Arianespace as represented by it before the CCIT while seeking approval as newspaper cuttings are not information collected or collated from User Departments. And thus, they had no hesitation in accepting the decision of the AO in rejecting this claim of the Appellant. The Court iterated that according to the letter dated 27th March, 1992, by which the CCIT granted approval for the deduction, it was mentioned in paragraph 4 that the grant of deduction and the amount eligible will be assessed by the AO at the time of assessment and the approval granted is also subject to any amendments in the said Act from time to time.  The Court held that the Appellant simply failed to act in aid of its intent disclosed in the application form, based on which approval was granted and that the AO cannot be accused of reviewing or revoking approval granted by the CCIT in the present matter. As the AO simply seeks to verify as to whether the Appellant has acted in terms of the approval granted by the CCIT. And the AO is well within his rights so to do and has not overstepped his jurisdiction. The Court also endorsed the decision of the ITAT and held that the appeal cannot be entertained and was accordingly dismissed.

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Judgement Reviewed by – Gnaneswarran Beemarao

 

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Secured Creditors have priority over Tax Authorities under CERSAI : High Court of Bombay

Case Title : Purushottam Prabhakar Chavan v Deputy Commissioner of Sales Tax(GST)

 Case no : Writ Petition No. 3477 of 2024Purushottam Prabhakar Chavan Versus Deputy Commissioner of Sales Tax (GST)

 Order no : 3rd May, 2024

 Quorum : Hon’ble Justice B.P. Colabawalla & Somashekar Sundareshan JJ

 FACTS OF THE CASE

The Lender bank between the dates of 31st May 2010 and 31st January 2010 provided credit facilities to several properties including Walkeshwar Flats and Nashik Properties. Walkeshwar Flats was owned by Mrs Praffullata Shah and the said property served as security for loan, and after her demise the loans on that property became a non-performing asset. Despite that the lender banks claimed possession over the property by invoking SARFAESI Act.

The DCST claimed the property under MVAT Act due to the taxes owned by one of the borrowers. Recovery proceedings were initiated and the DCST secured the assets. The lender bank registered a mortgage on the property using CERSAI.

Later on the said property was Auctioned and won by the Petitioner but due to conflicting claims the petitioner faced problems getting the ownership of the property. 

ISSUES

Whether as a matter of law, the Petitioner, the auction purchaser of the Walkeshwar Flat under the SARFAESI Act, is a valid recipient of free and marketable title to it ?

 LEGAL PROVISIONS

  1.  Article 226 of the Indian Constitution : Clearly states that every High Court has the powers throughout the territories in relation to which it exercises jurisdiction to issue writ or any order to any person or authority.
  2. Section 37 of Maharashtra Value Added Tax Act, 2002 : would override any provision of contract that creates a charge, it would be subservient to any provision in a Central Act that gives first charge to some other entity
  3.  Section 26-E of the SARFAESI Act : after the commencement of the Insolvency and Bankruptcy Code, 2016 (31 of 2016), in cases where insolvency or bankruptcy proceedings are pending in respect of secured assets of the borrower, priority to secured creditors in payment of debt shall be subject to the provisions of that Code.

 CONTENTION OF THE PARTIES

The contentions of the Directorate of Commercial Taxes are establishing their right to enforce tax dues against the Walkeshwar Flat, particularly in relation to Bharat Shah’s liability as a partner of SMI in the mortgage of the property. The DSCT argue that Bharat, as a legal heir of Mrs. Praffullata, inherits the property, thereby providing a basis for the DCST to assert their claim against it. However, the petitioner argues against this stance by emphasizing the priority of enforcement established by the Lender Bank through SARFAESI Act, including registration of the mortgage under CERSAI and obtaining physical possession of the said property.

The petitioner contends that the DCST’s attachment orders were after the Lender Bank’s actions and are therefore priority can be established by the Lender Bank’s registered security interest. They rely on the case of Jalgaon Janta, to support their argument that security interests registered with CERSAI take precedence over attachment orders by tax authorities.

Overall, the petitioner asserts that the legal framework supports their claim to priority in enforcement against the Walkeshwar Flat, and any further action by the DCST would be after the rights established by the Lender Bank’s actions under the SARFAESI Act. 

COURT’S ANALYSIS AND JUDGMENT

The court looked into the contentions of both the parties and admitted the Petition with no costs imposed. The court ruled that attachment orders predating January 24, 2020, do not grant priority to the DCST over the Walkeshwar Flat. As the DCST did not register with CERSAI nor issue a proclamation of sale, the Lender Bank’s priority remains intact, passing to Encore ARC. Consequently, the petitioner gains a clear title, unaffected by the DCST’s claim. Any attachment related to tax dues by SMI on the property is nullified, allowing the petitioner to register it unopposed.

 

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 JUDGMENT REVIEWED BY – Nagashree N M

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“The Bombay High Court affirmed the Labour Court’s ruling, upholding the reinstatement of an absent employee with back wages and compensation.”

Case Title: Bhushan Industries v. Lohasingh Ramavadh Yadav 

Case No.: WRIT PETITION NO. 1025 OF 2024 

Date: March 20, 2024 

Quorum: Justice Sandeep V. Marne 

 

FACTS OF THE CASE:  

With this petition, the employer-petitioner contests the contested award that the First Labour Court of Mumbai’s Presiding Officer issued on October 4, 2022. The petitioner company is a partnership that manufactures hairpins. At the position of Painter, Respondent began working for Petitioner in April 1999.  

According to the respondent’s case, on April 8, 2013, he asked Mr. Nileshwar Bhushan, a partner in the petitioner firm, for a loan of Rs. 2,000 so that he could pay for Dr. the spouse turned down the loan request. that starting on April 9, 2013, the petitioner’s partner prevented him from joining the services and that he was not given his wage for the months of March and April. This is how his services were terminated on April 9, 2013, as stated by the respondent.  

In the respondent’s case, on April 8, 2013, he requested a loan of Rs. 2,000 from Mr. Nileshwar Bhushan, a partner in the petitioner firm, in order to pay for Dr. that the petitioner’s partner stopped him from accessing the services on April 9, 2013, and that he didn’t receive his pay for the months of March and April. According to what the respondent said, this is how his services were ended on April 9, 2013. 

On April 13, 2013, the Respondent wrote the Petitioner to ask for permission to return to work. But on April 13, 2013, the Petitioner’s partner replied to the Respondent, accusing the latter of failing to report for duty. After exchanging letters, the Respondent filed a Statement of Justification on 18 July and complained to the Deputy Labour Commissioner.  

In the end, the matter came before the Labour Court due to a referral on the petitioner’s termination made by the relevant government. The Labour Court has responded to the reference in the affirmative, ordering the petitioner to bring the respondent back into work with continuity and full back pay as of April 9, 2013. 

 

CONTENTIONS OF THE PETITIONER: 

The Labour Court erred in ordering Respondent’s reinstatement without taking into account the fact that Respondent had no interest in cooperating with the Petitioner, according to the learned counsel representing the Petitioner.  

The respondent was made multiple offers to join the tasks, but the respondent declined. that the petitioner had no reason to kill the respondent because he had stopped providing services. He often missed more than 90 days of work each year, so in any event, he was never able to accrue 240 days of service. 

Furthermore, it was argued that since the Petitioner establishment has been closed since March 20, 2020, the issue of the Respondent’s reinstatement is resolved. that the argument of establishment closure was wrongly dismissed by the Labour Court. that the petitioner’s elderly partners are unable to manage the company.  

Mr. Shukla would also want to add that the evidence in the record, which shows the Respondent acknowledged being an employee and performing painterly duties, runs counter to the order for back wages to be paid. that from September 2013 until December 2018, he unreasonably neglected to put himself forward for employment.  

The petitioner would like to draw my attention to the Complaint (ULP) No. 10 of 2021, which is a challenge to the closure order filed by additional Petitioner-establishment employees. He would contend that the petitioner paid in a total of Rs. 5,91,000 towards the final settlement for the remaining employees, which included amounts paid for ex-gratia, notice pay, closure compensation, and bonuses.  

That the complaint has been dropped, and all other employees have accepted the money that was given to them. hem. Thus, it is hardly in doubt that the respondent will not be reinstated or receive any financial compensation. He would offer his prayers for the petition to be dismissed. 

 

CONTENTIONS OF THE RESPONDENT: 

The learned counsel for the Respondent would argue against the Petition and in favour of the Labour Court’s Award. She would argue that there is a delay and laches in the petition. that the Petition was only submitted in order to enforce the Award following the issuance of the recovery certificate. If not, the Petitioner did not contest the Award for around a year. She would argue that the petition should be denied due to its delay.  

Additionally, the counsel for respondent would like to state that Petitioner was denied permission to resume his duty despite Respondent’s numerous attempts to join him. She would go over the incidents that the Labour Court had documented in Paragraph 3 of the Order with me. In order to prove that the petitioner purposefully continued to correspond falsely with the respondent and did not genuinely allow him to resume his duties, she would also rely on the compilation of documents to indicate the varied correspondence that the parties exchanged.  

Respondent’s attorney would argue that since the termination of the respondent was based on wrongdoing, an investigation was required. She would argue that, even in the absence of such circumstances, desertion of service is a factual matter that can only be established by investigation. 

It was also argued that termination without holding an investigation was not permissible, even in the event that it turned out that the respondent had not served the full 240 days of service. She would argue that the Labour Court’s rulings are not perverse. that the respondent’s closure defence is untrue because there isn’t a closure notice in this particular situation. Without causing harm, she would argue that, even in the event that closure is determined, the Labour Court’s relief can still be enhanced by ordering the payment of back wages up until the day of closure in addition to closure compensation and a gratuity. She would offer prayers for the petition to be dismissed. 

 

COURT’S ANALYSIS AND JUDGMENT: 

The court determined that the Respondent’s refusal to report for duty is difficult to uphold. Actually, it seems from the petitioner’s varied correspondence with the respondent that the main intention behind them was to create the impression that the petitioner was prepared to extend an employment offer to the respondent. 

As to the court’s ruling, the petitioner had no intention of joining the respondent’s tasks. The Labour Court concluded that the Respondent never declined to accept tasks when they were truly offered after taking into account all of the correspondence that is on file as well as the testimony provided by the parties. I see no justification for meddling with the aforementioned finding of facts that the Labour Court has documented.  

The Respondent’s claim of job desertion has been accepted by the Petitioner. This Court has held over and again that the question of abandonment of service is one of fact, which requires investigation to be established.  

The court decided that at the very least, the Respondent should have received a show-cause notice if the Petitioner was actually correct in believing that he had abandoned the service. Petitioner did not accuse Respondent until after he brought up the topic of termination.  

The court held that since the parties were in communication with one another, the petitioner had the opportunity to undertake a domestic investigation by charging the respondent with evading their obligations. This is not a situation where Petitioner was unaware of Respondent’s whereabouts. Therefore, given the specific facts and circumstances of this case, it was possible to undertake a domestic inquiry. The court is of the opinion that, given the facts and circumstances of this case, the plea of abandoning of employment cannot be accepted.  

The court observed that the matter at hand concerns the type of relief that can be awarded to the Respondent after it was determined that the termination of the Respondent, which took effect on April 9, 2013, was deemed invalid and that the establishment will close on March 20, 2020. It is hardly in doubt that Respondent will be reinstated because the establishment has closed.  

The amount that the petitioner would be entitled to in terms of gratuity, one month’s notice pays, and retrenchment compensation has been recorded by Mr. Shukla, without affecting the petitioner’s rights. The retrenchment compensation for the period from April 1999 to the closing date of March 20, 2020, will be Rs. 1,03,950, according to that announcement.  

The petitioner’s attorney has gone over some of the responses made by the respondent during his cross-examination, in which he acknowledged that he occasionally worked as a painter and that he travelled back to his home country for work.  

The respondent’s attorney didn’t take long to clarify that working occasionally as a painter did not equate to gainful employment. Despite the fact that the petitioner was unable to demonstrate that Respondent was employed in a continuous, profitable manner, it seems that he did receive compensation for his painting abilities.  

 

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Judgment reviewed by Riddhi S Bhora. 

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Appellate Court Upholds Determination of Coparcener Rights in Ancestral Property Dispute: Bombay HC

Title: Sau. Ushabai Vs Smt. Mainabai and ORS.

Citation: SECOND APPEAL NO. 326/2015

Coram: Justice SMT. M.S. JAWALKAR

Date: 22/12/23

Facts

The case involves the plaintiff, who filed R.C.S. No.1794/1999 for the specific performance of an agreement of sale dated 24/09/1998. The decree in her favor was issued on 18/10/2001, leading to the execution of a sale deed on 17/10/2003. In R.D. No.06/2002, the plaintiff sought possession of the property, with J.Dr.-1 (son) and J.Dr.-2 (mother) as respondents. Following the death of J.Dr. No.1 in 22/07/2005, respondents No.2 to 5, his legal representatives, were brought into the case. They objected on 11/07/2008, claiming the agreement wasn’t for legal necessity due to J.Dr.-1’s alcohol addiction. The objection was rejected on 01/01/2011, leading to the trial court directing the issuance of a possession warrant. Respondents No.2 to 5 then filed First Appeal No.97/2011 in the District Court. The appellant argues that the lower court lacked jurisdiction to entertain and decide the appeal under Section 96 of the Civil Procedure Code, challenging the modified decree in R.C.S. No.1794/1999 based on the objection under Section 47 filed by respondents No.2 to 5 in the execution proceeding. The appeal court not only allowed the appeal but also issued an independent decree for partition and separate possession, which is contested in the present appeal. This second appeal pertains to a case where the appellant is dissatisfied with the judgment and decree issued by the District Judge-9 in Nagpur. The matter involves the rejection of objections under Section 47 of the Civil Procedure Code, and the dispute exists between the concerned parties. Additionally, the appellant contends that the Appellate Court shouldn’t have granted a decree for partition and separate possession in response to the execution proceeding, considering that the suit property had already been sold in compliance with the original decree favoring the appellant.

Laws Involved

Section 96 of Criminal Procedure Code

Appeal from original decree “It outlines the right of a party to appeal to the appellate court against a decree passed by the court of first instance. The section specifies that an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear appeals from the decisions of such court.

Section 47 of Criminal Procedure Code

Deals with questions relating to the execution, discharge, or satisfaction of a decree. It specifies that all questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge, or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.

Section 115 of Criminal Procedure Code

Empowers the High Court to exercise its supervisory jurisdiction over subordinate courts. This provision is invoked when the High Court believes that the subordinate court has either exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction when it should have.

Section 20 of Hindu Succession Act,1956

Deals with the devolution of interest in coparcenary property or self-acquired property of a deceased Hindu.

Issues

  • Whether the Regular Civil Appeal is Maintainable challenging the rejection under Section 47 of the Code of Civil Procedure or it is only a revision Under Section 115 of the Code of Civil Procedure?
  • Whether the lower Appellate Court was right in passing a decree for separate possession of the property particularly when the sale deed has already been executed pursuant to decree passed in suit for specific performance of contract?

Judgement

In this judgment, the court affirms the decision of the learned Appellate Court (District Judge-9, Nagpur) in R.C.A. No.97/2011. The appellant failed to establish legal necessity for selling the ancestral property, and the court notes that the objectors, being coparceners with a share in the property, have the right to retain possession in their share. The court finds no infirmity in the Appellate Court’s order, emphasizing that the executed decree is not binding on the share of the objectors. Consequently, the substantial question of law is answered in the affirmative, and the appeal is dismissed, confirming the judgment and decree dated 23/02/2015. The court orders the decree to be drawn up accordingly.

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Written by :- Sanjana Ravichandran

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The Bombay HC uphelds the decision of the tribunal in reducing the penalty for multiple funds to Jaipur IPL to 15 crores from 98 crores

TITLE : The special director V Jaipur IPL Cricket Pvt. Ltd

CORAM : Hon’ble Justice K.R Shriram and Hon’ble Justice Dr. Neela Gokhale

DATE :  13th  December, 2023

CITATION : FEMA Appeal no.1 of 2020

FACTS

These appeals are filed under Section 35 of the Foreign Exchange Management Act, 1999 under the order passed by the authority of FEMA. The quantum of total penalty imposed upon the appellants which was 98.35 crores was reduced to 15 crores only. After receiving certain information, it was observed that the there was large scale irregularities in the conduct and functioning of the IPL and its franchises. In the process of bidding a certain media house submitted a bid of Rs.268 crores for a team at Jaipur and subsequently only 20 crores of it was transferred. The rest was supposed to be paid by a bidder from Mauritius. 9 Cr were transferred through foreign investments by the bidder. On the other hand, RBI refused to transfer shares from to the bidder as the person was outside India. The respondents were held to be violating the provisions of Section 6(3)(b) of FEMA and Regulation 5(1) of the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2000 and paragraph 8 of Schedule I further read with Regulation 5 of Foreign Exchange Management (Permissible Capital Account Transactions) Regulations, 2000.

LAWS INVOLVED

Section 6(3)(b) of FEMA states that the RBI Can restrict the transfer of certain securities and also regulate them.

Regulation 5(1) of the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2000 provides for the permissions that is required to allow a person outside India to make investments.

            “A person resident outside India may subscribe, purchase or sell capital instruments of an Indian company in the manner and subject to the terms and conditions specified in Schedule 1.”

 

ISSUES

  1. Whether the reduction of money to 15 crores valid?

JUDGEMENT

The court dismissed the appeal on the ground that there is nothing perverse in the tribunal order to reduce the amount to Rs.15 cr. By applying the doctrine of proportionality, the court agreed with the order of reducing the penalty amount.

Under Section 35 of the FEMA, an Appeal will lie only in regard to a question of law arising out of such order as appealed against and in the present case the there is no question of law proved by the appellant.

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Written by- Sanjana Ravichandran

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