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TMI Blog2015 (12) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... r which provision of Act it is filed. Thus, the learned Trial Court has rightly dismissed the application filed by the petitioner. From the above noted facts, it is crystal clear that the petitioner had admitted to have bank accounts outside India only after the investigation by the Income Tax Department. The said foreign account was the undisclosed account and the deposits therein relates to his undisclosed income and the same needs to be examined. Therefore, there is no illegality, infirmity or perversity in the order dated 19.02.2015 passed by the learned Trial Court that pendency of appellate proceedings has no bearing in initiation of prosecution under the Income Tax Act. Thus, finding no merit in the instant petition, the same is h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound that he was above the age of 70 years on the date of filing the complaint and as per Circular dated 07.02.1991 issued by the Central Board of Direct Taxes, no prosecution can be initiated against a person who is above the age of 70 years. 5. Learned senior counsel further argued that case against the petitioner is that he concealed his income and did not file income tax accordingly. The said complaint was filed on the allegation that the petitioner had filed his original return of income in the prescribed form duly signed and verified by him for Assessment Year ( AY ) 2007-08 on 31.07.2007 vide receipt No.000105, declaring income of ₹ 75,31,769/-, in which his account with HSBC (P) Bank, Zurich, was not disclosed by him. The i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e foreign bank were about US$40,000 and US$32,12,000 in the Financial Year ( FY ) 2005-06 and 2006-07, relevant to AY 2006-07 and 2007-08. Copy of the same is annexed as Annexure-K. 7. Learned senior counsel further submitted that since the petitioner has challenged the AO in the appeal and the same is pending for adjudication, therefore, the petitioner cannot be prosecuted in the criminal complaint filed by the Department. 8. To strengthen his submissions, learned senior counsel has relied upon the case of Commissioner of Income Tax, Mumbai, Vs. Bhupen Champal Lal Dalal Anr., in SLP (Crl.) No.2430 of 2000 decided on 27.02.2001 by the Supreme Court, wherein observed as under:- The prosecution in criminal law and proceedings ari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... niently leaving out the expression at the time of commission of offence . He submitted that the said instruction does not mandate that no prosecution can be initiated against a person who has attained the age of 70 years, however, specifies as under:- 4. Prosecution need not normally be initiated against persons who have attained the age of 70 years at the time of commission of offence. Thus, the words need not normally used in para 4 of the instructions clearly show that the instructions do not provide for absolute bar on initiation of prosecution against persons who have attained the age of 70 (at the time of commission of offence). Further submitted, the instructions are in the nature of broad guidelines which should be kept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is no ground for stay of the proceedings if the same has no bearing on the complaint. 12. I have heard the learned counsel for the parties. 13. It is pertinent to mention here that the aforesaid petition of Arun Kumar Bhatia and Anr. (supra) was allowed on the statement made by learned senior standing counsel for the Income Tax Department, who fairly conceded that as per Circular dated 07.02.1991, no prosecution can be initiated against a person who is above the age of 70 years. 14. Since the aforesaid order dated 02.11.2011 was passed by this Court only, therefore, it can authoritatively be said that the said order was not passed on merits, however, based on the precise statement made by the learned counsel for the Department. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oting the judgment in B. Premanand Ors. Vs. Mohan Koikal Ors., (2011) 4 SCC 266, the Supreme Court clearly held in para 30 that pendency of appellate proceedings has no bearing in initiation of prosecution under the Income Tax Act. The relevant portion is extracted as under for ready reference. 30.....If it was the intention of the legislature to hold up the prosecution proceedings till the assessment proceedings are complete by way of appeal or otherwise the same would have been provided in Section 276CC itself. Therefore, the contention of the learned Senior Counsel for the appellant that no prosecution could be initiated till the culmination of assessment proceedings, especially in a case where the appellant had not be filed the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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