Ronetra @ S.M. Ronesamy vs The Deputy Director of Enforcement and The Special Director, (Appeals) Commissioner of Income Tax

P. Jyothimani, J.—Admittedly, as against the order of the first Respondent, dated 08.09.2009 appeal lies to the Special Director of Appeals u/s 17 of the Foreign Exchange Management Act 1999. However, the grievance of the Petitioner is that the first Respondent who is the original authority in the adjudication order which is impugned, in paragraph 3 has stated as follows:

iii)An appeal against this order shall lie with the Special Director(Appeals), Commissioner of income tax (Appeals_V), Main Building, 2nd Floor, Room No. 222, 121, M.G. Road, Nungambakkam, Chennai 34, after depositing the amount of penalty imposed, within 45 days from the date on which this order is served (Refer Section 17 of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000)

There by not only indicating that as against the order, appeal lies to the second Respondent u/s 17 of the Act but he has also stated that such an appeal shall be filed on payment of deposit of the amount of penalty imposed within 45 days.

The contention is that u/s 17, no where such condition has been imposed for the purpose of filing an appeal in depositing the amount of penalty and even otherwise, such condition cannot be imposed by the original authority namely the first Respondent who can only say that appeal against his order u/s 17 of the Act. As per Section 17(3) of the Act, there is a power on the part of the appellate authority, namely the second Respondent to condone the delay in filing the appeal, which is as follows:

17(3) Every appeal under Sub-section (1) shall be filed within forty-five days from the date on which the copy of the order made by the Adjudicating Authority is received by the aggrieved person and it shall be in such form, verified in such manner and be accompanied by such fee as may be prescribed:

Provided that the Special Director (Appeals) may entertain an appeal after the expiry of the said period of forty-five days, if he is satisfied that there was sufficient cause for not filing it within that period

In such view of the matter, I am of the considered view that as far as the condition for penalty for depositing of penalty in filing appeal is not for the first Respondent original authority. Such right is available only to the second Respondent appellate authority. Accordingly, the writ petition stands dismissed giving liberty to the Petitioner to file statutory appeal before the second Respondent and if such an appeal is filed within 10 days from the date of receipt of a copy of this order with a petition to condone the delay as per the provision u/s 17(3) of the Act, the Appellate Authority shall take the same into consideration, taking note of the pendency of the writ petition before this Court and pass appropriate orders for condoning the delay. As far as the depositing of the penalty amount is concerned, it is for the appellate authority to pass appropriate orders in accordance with the provisions of the Foreign Exchange Management Act, 1999. No costs. Consequently, connected miscellaneous petitions is closed.