w w w . L a w y e r S e r v i c e s . i n



India Pentecostal Church of God, Represented by Its General President, Pastor (Dr.) T. Valson Abraham & Another v/s Government of India, Represented by Its Secretary, Ministry of Home Affairs, New Delhi & Others


Company & Directors' Information:- AT HOME INDIA PRIVATE LIMITED [Active] CIN = U17211DL2001PTC112255

Company & Directors' Information:- DR I T M LIMITED [Active] CIN = U67120CH1999PLC022651

Company & Directors' Information:- V HOME PRIVATE LIMITED [Active] CIN = U74899DL2001PTC109331

Company & Directors' Information:- G. P. HOME PRIVATE LIMITED [Under Process of Striking Off] CIN = U70102MH2011PTC213056

Company & Directors' Information:- B L AND CO NEW DELHI PRIVATE LIMITED [Active] CIN = U74899DL1968PTC004910

    MFA. No. 13 of 2020

    Decided On, 25 June 2020

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    For the Appellants: Joseph Markose, Sr. Advocate, Joseph P. Alex, P. Manu Sankar, Jacob P. Alex, Advocates. For the Respondents: P. Vijayakumar, ASG of India, K.R. Rajkumar, C.G.C.



Judgment Text


1. This statutory appeal under the provisions of the Foreign Contribution (Regulation) Act (for short, 'the FCRA'), has been preferred by the India Pentecostal Church of God and its Pastor, who is also its General President, impugning the order dated 18.10.2019 issued by the third respondent - Deputy Director General, Ministry of Home Affairs, Government of India to the extent to which it relates to them.

2. The appellants say that as per this order, their registration under the FCRA has been cancelled by the third respondent, invoking the provisions of Section 14 of it and they say that the only reason stated therein for taking this drastic action is that they had not uploaded their Annual Returns as required by the said Statute within the time sanctioned. They point out that, going by the provisions of law, they had to upload the Annual Returns for the year 2017-18 on or before 31.12.2018 but that this was extended through a public notice dated 29.12.2018, a copy of which has been placed on record as Ext.R3(a), till 31.03.2019. They allege that on account of certain unavoidable circumstances, including defects in their PAN Account, they were able to upload their Annual Returns only on 03.04.2019 but that when they tried to do so, they saw that a penalty of Rs.43,41,711/- had been imposed against them.

3. The appellants say that, therefore, they preferred Annexure 6 request, dated 23.05.2019, to the respondents seeking that they be permitted to file the Annual Return in Form No.FC4 without payment of penalty explaining the reason for the three day's delay. They submit that, however, this request was not acceded to; but that in the meanwhile, they received Annexure 2 communication, dated 22.05.2019, asking them to upload their Annual Returns within 15 days from the date of the said notice. They further say that the facts being so, the impugned order was issued on 18.10.2019 cancelling their registration and that they are, therefore, constrained to assail the said order as being illegal, unlawful and unconstitutional.

4. I have heard Sri.Joseph Markose, learned senior counsel, instructed by Sri.Jacob P.Alex, learned counsel for the appellants and Sri.P.Vijayakumar, learned Assistant Solicitor General of India, instructed by Sri.K.R.Rajkumar, learned Central Government Counsel on behalf of the respondents.

5. Even though I have heard the learned senior counsel Sri.Joseph Markose and the learned Assistant Solicitor General Sri.P.Vijayakumar in extenso, it has become evident that it may not be necessary for this Court to enter into a conclusive or affirmative evaluation of their dialectical contentions, since the parties appear to have entered into a via-media solution to obtain a practical resolution of the disputes. In furtherance of this, the appellants have now made a suggestion, which I think this Court will be in a position to accede to and which I will record presently.

6. As I have said above, the specific allegation of the appellants is that the impugned order could not have been issued without conducting an enquiry by the competent respondent under Section 14(2) of the FCRA. They allege that they have made an attempt to upload their Annual Returns on 03.04.2019, which was a mere three days after the deadline statutorily fixed; but that this was not permitted for the reason that they were liable to pay penalty of a huge amount of Rs.43,41,711/-. They say that, nevertheless, even assuming that they had not uploaded their Annual Returns in time, the impugned order could not have been issued without following the mandate of Section 14(2) of the FCRA, which specifically stipulates that they be given a prior notice and that their explanation sought, leading to an enquiry before any such adverse order is issued against them.

7. Even when the afore submissions and contentions of the appellants are recorded, the fact remains that when the hearing of this case proceeded, it was brought to my notice by Sri.Joseph Markose, learned senior counsel, that the respondents have issued another public notice on 01.08.2019, as per which, entities like his client, who have not filed their Annual Return but whose registration have already been cancelled, were offered a one time exemption in public interest to avoid the rigor of Section 14(3) of the FCRA and to apply for re-registration without any penalty being imposed. He, therefore, submits that had his clients' registration being cancelled prior to the date of this order, namely 01.08.2019, they would certainly have obtained the opportunity of applying for a re-registration without having to pay penalty. He says that thus his clients effectively stand discriminated solely because their registration was cancelled only on 18.10.2019, which was two and half months after the afore public notice.

8. In the said background, the learned senior counsel offered to this Court on 26.05.2020, when this case was earlier listed, that his client is willing to remit the penalty now imposed under protest, so as to enable the respondents to reconsider the impugned order and he says that his clients will be in a position to convince the competent Authority that no fault can be attributed against them for the alleged lapse in filing the Annual Returns.

9. When I heard the afore submissions from Sri.Joseph Markose, learned senior counsel, I had indited an order on 26.05.2020, recording this; with a consequential direction to the respondents to inform this Court whether they would be willing to accept a bank guarantee for the amounts imposed as penalty. However, on the subsequent posting date, the learned Assistant Solicitor General, Sri.P.Vijayakumar submitted that the respondents are not willing to accept a bank guarantee, but that if the appellants are willing to remit the penalty, then their application for re-registration under the provisions of FCRA can certainly be considered.

10. It is in the afore scenario that the hearing of this matter commenced today.

11. As I have said above, I do not deem it necessary to go into the merits of the impugned order at this stage because of the following factors.

12. For the first, even after the deadline of 31.03.2019 lapsed, the respondents issued Annexure 2 notice to them on 22.05.2019 giving them a further opportunity to upload their Annual Returns. However, what is important in this communication is that there is no mention about the penalty, though I am fully cognizant that the learned Assistant Solicitor General contends that the payment of penalty must be read into it. That apart, I find substantial favour with the submissions of Sri.Joseph Markose, learned senior counsel, that had his client's registration been cancelled prior to 01.08.2019, they would certainly have obtained the benefit of the public notice of that date, whereby entities have been allowed to apply for re-registration without payment of penalty. All this clearly indicate the mind of the respondents that they are willing to give benefits to bona fide entities who approach them sincerely, even without the rigor of the penalty being imposed upon. However, this is not a matter that this Court can conclusively state in these proceedings, since even if I am to find in favour of the appellants in this case, I cannot waive the penalty, it being a matter to be decided by the competent Authority in terms of law.

13. I am, therefore, of the firm view that it will be better for the appellants that they accede to the jurisdiction of the competent respondent and apply for either revival of their earlier registration or for re-registration, as the law may permit, without payment of the penalty which, then, can be considered by the competent Authority, after affording them an opportunity of being heard. Obviously, this benefit can be given to them only if they first deposit the entire amounts mulcted against them as penalty.

14. Sri.Joseph Markose, learned senior counsel submitted that the appellants accept the afore views of this Court and prayed that a judgment in terms of the same be issued. I must, at this juncture, also record the submissions of the learned Assistant Solicitor General, Sri.P.Vijayakumar that this may not be used by other entities as a precedent to seek similar reliefs in future.

15. Even when I hear the reservation voiced by Sri.P.Vijayakumar as above, it is doubtless that no other person/entity can file an appeal against the impugned order at this time, since the Statute prescribes sixty days' deadline. Only the appellants herein have approached this Court and obviously, therefore, any benefit that I give here can only apply to them and not to anyone else nor can this judgment be cited as a precedent because of the aspects of limitation.

16. In the result, I feel it apposite for this Court to dispose of this appeal with the following directions:

(a) I direct the appellants to remit the amount of Rs.43,41,711/-, which is the amount of penalty now found against them, within a period of two weeks from the date of receipt of a copy of this judgment .

(b) In the event of the above amount being remitted by the appellants, the competent among the respondents will permit them forthwith to upload their Annual Return in form No.FC4, as per the applicable procedure.

(c) Once the Annual Returns are so uploaded, the competent Authority will consider the same and issue appropriate orders thereon, including as to whether the impugned order can be withdrawn leading to the restoration of the registration of the appellants; or whether they can be given a re-registration under the provisions of the FCRA by allowing them to use the same bank account in accordance with the stipulations in the public notice dated 18.03.2020 and 26.05.2020; however, clarifying that the appellants will not be required to apply for re-registration separately apart from the directions above.

(d) While taking a decision as afore directed, the competent Authority will also consider whether the rigor of payment of penalty can be waived for the appellants, for which purpose an opportunity of being heard to them will also be granted and this decision will also find a place in the order to be issued by them in terms of the afore directions.

(e) Needless to say, the remittance of penalty by the appellants as per this judgment will be subject to the afore directions and if the

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Authorities are to find that they can be given the latitude of being not mulcted with the said amount, it will be returned to them, however, without interest. Even though this Court is hopeful that the competent respondents will rise to the occasion, taking note of the spirit and tenor of this judgment, in the event an order is issued adverse to the appellants, they certainly would be at liberty to approach this Court again statutorily against the same. I also reiteratingly clarify that the directions herein have been issued solely because this appeal has been preferred by the appellants in time and noticing the specific circumstances as indited above; obviously meaning that these directions cannot apply as a precedent to any other person/entity, who have not filed an appeal yet, if they are to claim analogous factual circumstances. If through the afore exercise, the appellants are granted restoration of the registration or re-registration, they will also be permitted to upload the Annual Returns for the rest of the years as per law. In view of the singular circumstances noticed, I make no order as to costs.
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