:1: bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2057 OF 2009 Ashok Dirajlal Kamdar residing at 901, Swapna Lok Building, Opp. G.C. Hostel, G.Giridharilal Marg, Malad (W), Mumbai – 400 064. ..Petitioner Vs. 1. Union of India through Ministry of Law & Judiciary, Aayakar Bhavan, Income Tax Building, Marine Lines, Mumbai – 400 020. 2. Director Enforcement, Enforcement Directorate, Janmabhoomi Chambers, Walchand Hirachand Marg, Mumbai – 400 001. 3. The Appellate Tribunal for Foreign Exchange, Janpath Bhavan, 4th Floor, Janpath, New Delhi – 1 ..Respondents Mr.M.M.Patel for petitioner. Mr.M.I.Sethna, Senior Advocate with Mr.A.M.Sethna for respondents. CORAM :- V.C.DAGA & K.K.TATED,JJ. DATE :- 4TH MARCH,2010 :2: P. C. 1. Heard. Perused petition. 2. This petition is directed against the order dated 17th July, 2008 passed by the Appellate Tribunal for Foreign Exchange (“the Tribunal”), whereby and whereunder, the application for dispensation of pre-deposit of penalty was rejected by the Tribunal with further direction to deposit the said amount within 30 days. In addition to this, subsequent-consequential order dated 29th January, 2009 is also challenged, whereby the appeal came to be dismissed for non compliance of conditional order directing pre-deposit. 3. The main contention raised by the petitioner in this petition during the course of hearing is that, the Tribunal did not consider undue financial hardship pleaded by the applicant-petitioner supported by the documentary evidence filed along with the application seeking waiver of pre-deposit . 4. Factual matrix reveals that along with appeal before the Tribunal, the application for waiver of pre-deposit was filed along with documents viz. show cause notice, Income Tax Return for the A.Y.2005-06 and 2006-07 followed by 2007-08, wherein very small amount of income is shown. Accordingly, the petitioner was assessed. 5. If one goes through the impugned order passed by the Tribunal, the contention of the petitioner is that he has made out a prima facie case is dealt with by the Tribunal and negatived his contention by a reasoned order with which no fault can be found. 6. So far as financial hardship and the documents filed in support thereof are concerned, no consideration is to be found in the order of the Tribunal. The Tribunal, by one line order concluded that “the appellants have not :3: claimed any financial disability”. At the first flush, we thought of setting aside the impugned order and remitting the matter back to the appellate Tribunal for consideration afresh. However, after examining the documents viz. Income Tax Returns, Income and Expenditure Account followed by Balance Sheet for all the three assessments years in detail, we found it difficult to accept the contention of the petitioner that he was suffering from any financial hardship. 7. Having examined the documents in detail, if one turns to the capital account of the petitioner, for the A.Y.2005-2006, the cash balance as on 31st March, 2005 appears to be Rs.56,56,407/- whereas in the very same financial year, he has share investment worth Rs.17,00,000/- (as reflected on page No. 184 of the petition) though in the balance sheet it is shown as Rs.3,94,481/- taking face value of the shares. The market value of the said shares cannot be less than Rs.17,00,000/-. Proceeding further on the asset side of the Balance Sheet, the loans and advances given to the HUF of the petitioner himself appears around Rs.15,00,000/-; whereas in the subsequent A.Ys. 2006-07 and 2007-08 same figures of Rs.15,00,000/- are shown. The investment in the Shilvy Securities Pvt.Ltd. is shown around Rs.10,00,000/-. The value of the flat held by the petitioner is shown around Rs.16,00,000/-, the market value of which is bound to run in crores, considering the rates of the properties in Mumbai. The petitioner has two flats in Mumbai. The share investment in the year 2006-07 is also worth Rs.17,00,000/- as stated hereinabove. In the circumstances, it is not possible to accept the case sought to be made out by the petitioner for financial hardship. 8. The Apex Court in the case of Monotosh Saha Vs. Special Director, Enforcement Directorate and Anr.(2008) 12 SCC 359 has held that merely for asking pre-deposit cannot be waived. Similarly, in the case of Benara Valves Ltd. and Ors. Vs. Commissioner of Central Excise and Anr. (2006) 204 ELT 513 (SC), the Apex Court, while hearing the appeal under Section 35F of the Central Excise Rules,1944 has observed that, in such matters, though limited :4: discretion is available, the same has to be exercised judicially. Applying the said settled law, we do not see any case made out by the petitioner to entertain this petition. Needless to mention as observed while exercising writ jurisdiction in the matter concerning waiver of deposit, the scope of interference is very limited. In this case, no doubt, there was no detailed consideration by the Tribunal with regard to financial hardship but we find no useful purpose would be served by remanding the matter to the Tribunal for consideration afresh as the material available on record does not justify the assertion made by the petitioner. The petition, is therefore, without any substance. The same is liable to be dismissed in limine with no order as to costs. Order accordingly. (K.K.TATED,J.) (V.C.DAGA,J.)