Compounding of offences under FEMA

Foreign Exchange Management Act is a law that Test to open in same popup regulates the inflow and outflow of foreign exchange in India. Apart from the principle Act, there are various rules, regulations, notifications, circulars etc. issued vide powers given under the Act. Oftentimes, in many cases, the person or parties to the transaction may not be aware of these provisions and commit unintentional contravention.

Compounding refers to the process of voluntarily admitting the contravention, pleading guilty and seeking redressal.

The process of contravention involves filing an application to the Reserve Bank of India alongwith all the relevant documents and details. The Compounding Authority may call for any information, record or any other documents relevant to the compounding proceedings. The Compounding Authority shall pass an order of compounding within 180 days from the date of application after affording an opportunity of being heard to all the concerned

Certain conditions for filing compounding application:

• Where a particular contravention is compounded and similar contravention is again committed within a period of three years by the person concerned, the subsequent contravention will not be compounded. Any second or subsequent contravention committed after the expiry of a period of three years from the date on which the contravention was previously compounded shall be deemed to be a first contravention.

• All requisite approvals should be obtained and compliances should be completed before seeking compounding of contravention. Compounding can be done only after rectifying the records by way of obtaining post-facto approvals or unwinding the transactions in cases where they are not permissible under FEMA, 1999. Copies of approvals and other compliances should be enclosed along with the application.

• Cases of contravention, such as, those having serious contravention suspected of money laundering, terror financing or affecting sovereignty and integrity of the nation or where the contravener fails to pay the sum for which contravention was compounded within the specified period in terms of the compounding order, shall be referred to the Directorate of Enforcement for further investigation and necessary action under FEMA, 1999 or to the authority instituted for implementation of the Prevention of Money Laundering Act 2002, or to any other agencies, for necessary action as deemed fit.

As per the FEMA Regulations on compounding, the following factors, which are only indicative, may be taken into consideration for the purpose of passing compounding order and adjudging the quantum of sum on payment of which contravention shall be compounded:

• the amount of gain of unfair advantage, wherever quantifiable, made as a result of the contravention;
• the amount of loss caused to any authority/ agency/ exchequer as a result of the contravention;
• economic benefits accruing to the contravener from delayed compliance or compliance avoided;
• the repetitive nature of the contravention, the track record and/or history of non-compliance of the contravener;
• contravener’s conduct in undertaking the transaction and in disclosure of full facts in the application and submissions made during the personal hearing; and any other factor as considered relevant and appropriate.

Further, the amount imposed can be up to three times the amount involved in the contravention. There is also a guidance note given by the RBI on calculation of amount that can be imposed under compounding order. This guidance note is only indicative in nature and the actual amount can vary depending on other factors and circumstances.

Amongst other points, the guidance note also provides that in cases where it is established that the contravener has made undue gains, the amount thereof may be neutralized to a reasonable extent by adding the same to the compounding amount calculated.

One important principle to be remembered is that compounding order in case of any other person, even with similar issues, cannot be used as a precedent by the applicant. The Compounding Authority takes a view independently for each application depending on various factors.

In the below paragraphs we have discussed the compounding orders and view taken by the Compounding Authority. We have selected a few compounding orders relating to agricultural land inadvertently purchased by Non-Resident Indians (‘NRI’).

1. In C.A. No. 93/ 2019, the applicant had sought for compounding of contravention relating to purchase of agricultural land when he was an NRI. The applicant had purchased agricultural land in Gujarat for a price of Rs. 975,000 in September 2003 when he was an NRI. He being an NRI was actually not eligible to purchase the land. He was advised vide a RBI letter to transfer the property to a resident citizen in India within six months from the date of letter and not to repatriate the sale proceeds outside India without prior approval of RBI. The amount of sale proceed is not mentioned in the order. The amount imposed under compounding order was Rs. 29,25,000.

2. In another C.A. No. 89/2019, the applicant had sought for compounding of contravention relating to purchase of agricultural land when he was an NRI. The agricultural land was purchased for Rs. 97,60,000. He was advised vide RBI letter to transfer the property to a resident citizen India. The market value at the time of transfer was Rs. 98,00,000. The amount of contravention was the cost price i.e. Rs. 97,60,000 and undue gain was Rs. 40,000 (i.e. Rs. 98,00,000 – Rs. 97,60,000). The amount imposed under compounding order was Rs. 143,680.
3. In C.A.No.97/2019, the applicants were Persons of Indian Origin (PIOs). They were citizens of USA and person residents outside India. They purchased agricultural land which while they were residents outside India. They were advised vide RBI letter to transfer the property to a resident citizen India. The property was purchased for Rs. 1,20,00,000. Eventually, on advise received from RBI, the property was sold at price of Rs. 1,80,00,000 to a resident citizen. TDS on the same was done by the buyer at   38,27,200. There was a gain of Rs. 40,00,000. The difference in the value appreciated and the TDS paid (Rs. 40,00,000 – Rs. 38,27,200)  i.e. 172,800 was considered as amount of undue gain. The amount imposed under compounding order was Rs. 300,800.
4. Similarly, in CA no. 87/2029, with similar facts, the purchase price of agricultural land was Rs. 16,38,700. The market value on the date of transfer was Rs. 40,30,000. Undue gain was calculated as the difference between the two i.e. Rs. 23,91,300. The amount imposed under compounding order was Rs. 24,53,590.