9911796707
TMI Blog2020 (11) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... to a large extent quite same. The petitioner is, thus, facing three separate trials in all the three complaints before the same Magistrate for not declaring the fact of having a foreign account to the Income Tax Authorities. The ingredients of Section 220 of Cr.P.C. have been defined in Chandni Srivastava Vs. CBI Ors. [ 2016 (2) TMI 1289 - DELHI HIGH COURT] in which it was held that Sec. 220 of the Cr.P.C. permits of one trial even if many offences are committed, if such offences form part of the same transaction, the rationale for such an exception being that in such circumstances, separate trials may lead to conflicting judgments. The three complaints in fact are a part of the same transaction. The first complaint has been filed on the assumption that petitioner is holding an undisclosed foreign account and two subsequent complaints are nothing but to arrive at a figure to meet the ingredients of the first offence. The chart given above reveals that the allegations, documents and nature of evidence are same in all the three complaints. In these circumstances, it will be in the interest of justice to have a common trial for all the three complaints. This petition is al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn without disclosing foreign funds is a separate and different act and same cannot held in part of same transaction. 8. In the present case I am of the opinion that the test of each offences being part of same transaction fails. As in the present case the accusations are for evasion of income tax for the different assessment years or for false statement given on oath before the income tax authorities. 9. Accordingly, in my humble opinion, no prejudice would be caused to the accused if he is tried in the separate complaints. 4. Vide this petition, petitioner is seeking quashing of the aforesaid order of 30th June, 2018 passed by the learned Magistrate on the ground that petitioner cannot be subjected to several criminal prosecutions for the same offence on the basis of same material, evidence and list of witnesses under the same enactment merely on the basis that the financial years of the complaints are different. It is submitted on behalf of the petitioner that the filing of three different complaints by the respondent/Department is abuse of process of law and is in contravention of Article 20(2) of the Constitution of India, Section 71 of IPC, Section 300 of Cr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 2(28A) of Income Tax. There can be prosecution only for payable interest or penalty or tax, as stipulated u/s 276C of Income Tax Act. Assessment proceedings are dealt under separate chapters of Income Tax Act whereas penalties imposable are dealt under Chapter XXI of Income Tax Act from sections 270 to 275 of the said Act. Learned counsel for the petitioner, therefore, submitted that importing the concept of Assessment Year into the definitions of offences triable by Special Courts is reading something in the definition which does not exists and which is contrary to constitutional safeguards and criminal jurisprudence. 8. It was submitted on behalf of the petitioner that it is laid down in law that if different cases are filed on same cause of action, Doctrine of Issue Estoppel prevents second prosecution on the same sets of facts for which a person could be prosecuted. The petitioner relied upon decision of Hon ble Apex Court in State of Andhra Pradesh vs. Cheemalapati Ganeswara Rao Anr., 1964 (3) SCR 297 and a decision dated 9th February, 2016 of a Coordinate Bench Of this Court in Chandni Srivastava Vs. CBI Ors. to submit that allowing of sever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment years 2006-07 and 2007-08, u/s 276C(1) and 277 of the Act were preferred by the respondent/department. 10. It was further submitted on behalf of respondent/department that no illegality has been committed by the department by filing three different complaints, as the offence committed in each complaint is separate and distinct. Attention of this Court was drawn to the provisions of Sections 276C, 276D and 277 of the Income Tax Act. 11. Learned counsel for respondent/department submitted that every assessment year is separate and distinct year under the provisions of the Income Tax Act. The proceeding under the Act initiates with filing of return by the assessee and culminates at framing of assessment order (including the appellate proceedings) determining the correct tax liability of an assessee and recovery of pursuant demand arising thereto. The offence under Section 276C of the Act can only be in respect of particular assessment year alone as the quantum of sentence depends upon the amount of tax, penalty or interest sought to be evaded. Similarly, the offence under Section 277 of the Act is also assessment year specific, as the misdeclaration or furnishing of fal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n deserves dismissal. 13. I have heard the rival submissions made by learned counsel for the parties and gone through the material placed on record. The genesis of trial of three petitions before the trial court is the complaint bearing CC No.511538/16 (Old CC No.131/2014), under Section 276-D of the Income Tax Act dated 28th February, 2015 and the other two complaints rest on the same. Whether the petitioner is holding a foreign account or not is a matter of trial in the first complaint and the assumption that he holds an undisclosed foreign account, which forms basis of other two complaints, is also subject matter of trial. 14. The following chart will reveal that facts and evidence are the same in all the complaints. S.No. CC No. 511538/16 (Old No. 131/4) CC No. 528982/16 (Old No. 157/4) CC No. 528983/16 (Old No. 158/4) 1. Information received from the Government of France in 2011 under Double Tax Avoidance Convention with India revealed that certain Indian including accused, held or were beneficial owners of bank account(s) with HSBC, Switzerland. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instruction of the introducer at Delhi, who arrange to deposit the same in his bank account at Zurich. He further stated that he has given at Delhi in the year 2002 amount ranging from ₹ 2-5 crores. That during the search proceedings statement u/s 132(4) of the I.T. Act dated 28.07.2011 of the accused was recorded on oath, in which he had written answers to question 5 to 34 in his own handwriting. On the basis of information received regarding his account with HSBC Bank, Zurich he was questioned about his foreign bank accounts. He admitted that he had opened a bank account with HSBC Bank, Zurich, Switzerland in 2002 when he visited there . He further said that the account is not into existence as on today and should have been closed. He further stated that the said bank account with HSBC Bank was not disclosed in his return of income. Regarding mode of operation he submitted that he used to give cash on the instruction of the introducer at Delhi, who arrange to deposit the same in his bank account at Zurich/ he has further stated that he had given at Delhi in the year 2002 amount ranging from ₹ 2-5 crores. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age must decide whether on the facts of a particular case, it can be held to be in one transaction. It is not possible to enunciate any comprehensive formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. But the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action and community of purpose or design are the factors for deciding whether certain acts form parts of the same transaction or not. Therefore, a series of acts whether are so connected together as to form the same transaction is purely a question of fact to be decided on the aforesaid criteria . 18. The broad test, therefore, for ascertaining whether offences charged form part of the same transaction is whether the other set of offences, even though distinct and separate, have been committed for facilitating the commission of the main offence. If the offences alleged involve similar persons and there is a hint of continuity of action, it is then part of the same transaction. Thus, if the substratum of the series of acts is common, then those acts do constitute same transaction. 19. As discussed a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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