9911796707
TMI Blog2019 (2) TMI 1919X X X X Extracts X X X X X X X X Extracts X X X X ..... come on 29.07.2002, showing his total income as Rs. 45,48,850/-. The Central Board of Direct Taxes (CBDT), New Delhi, has received certain information that the accused had created a Trust, in the name of 'Webster Foundation' in Europe and maintaining an account with LGT Bank, Liechtenstein, a foreign State in Europe. The petitioner along with his father and brother, made a declaration of endowment in favour of M/s.Webster Foundation by endowing with a sum of Euro 1,23,000 (equivalent to Rs. 52,20,784/-). From the documents, the Department found a sum of Swiss Franc 7,78,437.80 (equivalent to Rs. 2,26,38,372/-) including accrued interest, was credited to this account. The documents referred were obtained by the Central Board of Direct Taxes, New Delhi from German Tax authorities under the Double Taxation Avoidance Agreement Scheme entered into with the Government of India. 2.2. Based on these informations, the respondent had verified the income return statement filed by the petitioner and found that the bank balance in the foreign bank account was not reflected either by way of income or deposits or interest from deposits and therefore, treating the assessment a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act that a person shall not be proceeded against for an offence under Section 276C or 277 in relation to the assessment for an assessment year in respect of which, the penalty imposed or imposable on him under clause (iii) of sub-section (1) of Section 271 has been reduced or waived by an order under Section 273A. In support of his contention, the learned Senior Counsel had also relied upon the judgment of the Hon'ble Supreme Court in Prem Dass v. Income Tax Officer, reported in MANU/SC/0083/1999, wherein, the Hon'ble Supreme Court has held as follows: "10. We also find sufficient force in the contention of Mr.Salve that the legislative mandate in Section 279(1A) of the Income Tax Act has not been borne in mind by the High Court while interfering with an order of acquittal. Mr.Shukla, no doubt has indicated that the said provision will have no application as the penalty imposed has not been reduced or waived by an order under Section 273A. We do not agree with the aforesaid literal interpretation of the provisions of Section 279(1A) of the Act, when we find that the Commissioner of Income Tax (Appeal) has reduced the penalty. ..." 5. Learned Senior Counsel further conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 148 of the Income Tax Act was issued on 25.03.2009. The assessee had also participated for the enquiry and submitted his reply. The sworn statement of the petitioner was also recorded. In conclusion of the enquiry, an assessment order was passed on 29.12.2009 and the petitioner paid the taxes. Thereafter, a show cause notice was issued under Sections 276C and 277 of the Act and the petitioner has given his reply. Subsequent thereto, a sanction order was passed by the Commissioner of Income Tax on 24.03.2011 and the complaint was filed on 28.03.2011 and the case is taken on file in E.O.C.C.No.121 of 2011 and PWs 1 to 3 have been examined. 8. The learned Counsel for the respondent further contended that the question of limitation cannot be raised as the tax appeal and criminal case are independent to each other and there is no direct implication in conducting the criminal case. For launching a criminal case for economic offences, there is no limitation as per the amendment Act, ie., Economic Offences (inapplicability of Limitation) Act, 1974 (Act No.12 of 1974). It is further stated that the question of limitation for reopening the assessment order wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty has been reduced by the Commissioner of Income Tax (Appeals), criminal proceedings against the petitioner is liable to be dropped as per Section 279(1A) of the Income Tax Act, 1961. 13. Tax Case Appeal and Criminal Case are independent to each other. T.C.A.No.252 of 2013 is with regard to the notice dated 25.03.2009 issued under Section 148 of the Act. The legality of the said notice has been seized of by the Hon'ble Division Bench of this Court, but, the Criminal prosecution over the alleged economic offence has to be tried before the appropriate Court of law, as there is no direct implication in conducting the criminal case. Moreover, as per the Economic Offences (Inapplicability of Limitation) Act, 1974 (Act No.12 of 1974), there is no limitation for launching such type of cases and therefore, the first ground raised by the petitioner lacks merits. 14. The second ground raised by the petitioner is that the documents relied upon by the prosecution are only xerox copies, which are unauthenticated and will not be used before a Court of law, as per Section 78(6) of the Indian Evidence Act, 1872. For better understanding, Section 78(6) of the Indian Evidence A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied upon the decision of the Hon'ble Supreme Court in Prem Dass v. Income Tax Officer, reported in MANU/SC/0083/1999, (referred to supra). In the said decision, the Hon'ble Supreme Court has held as follows: "10. ...We do not agree with the aforesaid literal interpretation of the provisions of Section 279(1A) of the Act, when we find that the Commissioner of Income Tax (Appeal) has reduced the penalty. ..." For this purpose, this Court is inclined to extract Section 273A of the Act, which reads thus: "273A. Power to reduce or waive penalty, etc., in certain cases. (1) Notwithstanding anything contained in this Act, the Principal Commissioner or Commissioner may, in his discretion, whether on his own motion or otherwise:- (i) ..omitted.. (ii) reduce or waive the amount of penalty imposed or imposable on a person under section 270A or clause (iii) of sub-section (1) of section 271; or (iii) ...omitted... if he is satisfied that such person - (a) ...omitted... (b) in the case referred to in clause (ii), has, prior to the detection by the Assessing Officer, of the concealment of particulars of income or of the inaccuracy of particulars furnished in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received is from a sovereign country (Government of Germany), though not authenticated by the LGT bank or the Country in which the bank is located. Further, the signature contained in the information tallies with that of the appellant. This fact coupled with the appellant's acceptance, for whatever may be the reasons, shows that the amounts deposited in the bank account belong to the appellant. Thus, the appellant's admission to offer the amount to tax cannot be considered as 'for buying peace of mind from the department' only. The appellant by admitting / accepting the proposed additions prevented the AO from investigating the matter further. Hence, the appellant's admission / acceptance of additions will amount to concealment of income. 7.8. Further, the appellant's admissions are not voluntary. It was only when the Government of India received the information from the Government of Germany regarding the appellant's bank account and when the AO re-opened the assessment and confronted with the details, the appellant came forward to accept and offer amount for tax. This is clearly not a voluntary admission by the appellant. The admission by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, by order dated 28.02.2019, has dismissed the Criminal Original Petition and directed the learned Additional Chief Metropolitan Magistrate (Economic Offences - 1), Egmore, to expedite the trial and conclude the proceedings in E.O.C.C.No.121 of 2011, as expeditiously as possible. Since the petitioner is a 70 year old senior citizen, suffering from health ailments, the learned Senior Counsel sought for dispensing with his personal appearance before the trial Court. 3. Though the age of the petitioner is not disputed by the learned Counsel for the respondent, he objected for dispensing with the personal appearance of the petitioner by this Court, before the trial Court. He further submitted that the petitioner's plea for dispensing with his personal appearance can very well be considered by the trial Court itself under Section 205 Cr.P.C., as such, he objected for considering the same by this Court at this juncture, ie., after pronouncing the order on 28.02.2019. 4. The age of the petitioner is 70 years and the same is not in dispute. But, this Court is barred under Section 362 Cr.P.C., to entertain the petitioner's plea for dispense with, after pronouncing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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