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TMI Blog2021 (8) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... financial year 2006-2007. It is stated that the copy of information received showed the date of birth and the residential address of the accused. 3. It is stated that after receipt of the information, on 23.08.2011 a search was conducted at the premises of the accused wherein he was confronted with the information regarding the undisclosed foreign bank account. It is stated that the accused agreed to pay the tax on the amount reflected in the undisclosed bank account, but stated that he has no knowledge of the said bank account as his deceased wife Late Smt. Sudesh Madhok was managing the business as proprietor of M/s Indian Art-wares Corporation since 1970 till her death in the year 2005. 4. It is stated that on 15.04.2013 summon u/s 131 (1A) of Income Tax Act was issued to the accused and accused agreed to pay tax of Rs. 65.42 lakhs but did not give consent letter. It is further stated that notice u/s 142 (1) of the Income Tax Act was issued to the accused calling for the statement of account for the aforesaid undisclosed foreign bank account but accused denied to have any statement / details of the bank account. It is stated that thereafter notice u/s 153 (A) of the Income Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tracted by the accused. It is submitted that the assessment proceedings also record the fact of retraction and such statement in the absence of any other concrete evidence cannot be made sole ground to prosecute the accused. 7. On the other hand, Ld. SPP submits that accused has admitted the fact of opening bank account in his statement u/s 132 (4) of the Income Tax Act. He submits that accused has admitted filing the requisite form for opening of bank account and he has also mentioned the name of the agent in his statement. Though, during arguments Ld. SPP conceded that no inquiry was made from the said agent and no inquiry was made from the bank in question to obtain the account opening form or to corroborate and authenticate the data received in the pen drive from French authorities. He submits that as per article 28 of the Convention the data can be used for the purpose of prosecution. He submits that certificate u/s 65 B of the Indian Evidence Act, 1872 is given in support of data to establish its authenticity. He opposes the application. 8. I have heard the arguments and perused the record. The present complaint is filed u/s 276 C (1) of the Income Tax Act for tax evasion a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt viz "AG Habconsult", "Sudesh Madhok" and "Kanika Madhok". The information received contained monthly balances of Fiduciary Deposits, Liquid Assests and Warrants in the foreign bank account. The Assessing Officer had taken the peak cerdit balances available in the account and accordingly had made addition of Rs..18,58,311/- and also addition of Rs..73,074/- being interest accrued during the year on the balance in the foreign bank account (in terms of Indian Currency). 7. And whereas the authenticity of the information received under Exchange of Information Mechanasim through DTAC is not under dispute and the statement of accused made during the search is also found to be made voluntarily. If the statement had been under duress the accused would not have shown a sum of Rs..2,23,68,000/- as other income in the return for Assessment Year 2007-2008 and deposited the tax thereon. The assessee, however, did not sign the consent waiver form and denied having foreign bank account in the course of assessment proceeding. The basis of the notices issued u/s 279 of the Income Tax Act was not only the statement of the assessee recorded during the search, as contended by the accused, but als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elow: "16. ............From agreeing to additions it does not follow that the amount agreed to be added was concealed. There may be hundred and one reasons for such admissions i.e. when the assessee realises the true position it does not dispute certain disallowances but that does not absolve the revenue to prove the mens rea of quasi-criminal offence............... It is for the Income Tax authority to prove that a particular receipt is taxable. If, however, the receipt is accepted and certain amount is accepted as taxable, it could be added but it was not accepted by the assessee, however, that it had deliberately furnished inaccurate particulars or concealed any income...." 13. Apart from that the statement u/s 132(4) Income tax Act, 1961 was also not proved properly as per law as the officer who recorded the statement was not examined in the evidence. 14. It is the settled legal position that the prosecution has to stand on its own legs to prove its case. Therefore, the premises in the sanction order sanctioning the prosecution on the basis of admissions despite the fact that accused has retracted the same during the period of investigation itself, does not hold good in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Public Prosecutor conceded that no inquiry was made by the complainant department from the concerned bank to cross check the authenticity of the bank account data in question. He also admitted that the agent 'HABCONSULT AG' was also not joined in the investigation and no inquiry was made from it to verify the authenticity of the bank account in question. 17.Nothing has been placed on record to show that it was accused who was operating the bank account in question. No bank statement of the accused is seized to prove the transactions done in the said bank account. No remittance or withdrawal in favor of the accused is shown on record to link the accused with the bank accounts in question. The investigation in this regard is done totally in casual manner and no attempt was made by the complainant department to verify the authenticity of the data from the bank in question. No attempt was made to obtain the bank account opening form and the KYC documents, if any, submitted at the time of opening of bank account. I am afraid that in the absence of the aforesaid investigation there is nothing on record to connect the accused with the bank accounts in question. 18.Ld. Defenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese documents will be private documents which form the record of public officers of a foreign country in which event they are 'public documents' as defined in Section 74(1)(iii) of the Indian Evidence Act. They can be proved only under Section 78 clause (6) of the Indian Evidence Act. It is not denied that no such authentication exists in respect of these documents. Under the circumstances, these documents can never be proved." 20. From the aforesaid legal position, it is clear that there is a prerequisite of the certification of foreign record by the legal-keeper thereof or by an officer having legal custody of the original as a cardinal indispensable rule. In present case, the bank record in question (page no. 83 to 92) is neither certified by the bank concerned and nor it is clarified that the French Authorities were having possession of the originals. Further, the record is neither certified by the French Authorities or Indian Consulate. The letter from the French Government at page no. 48 is silent regarding the source of document and also about the fact of verification / cross checking of the data from the concerned bank. From the record, it is clear that neither the French ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s patently clear that the prosecution has failed to prove the foundational facts and therefore the question attracting the presumption does not lie. 24. At this juncture, it will also be relevant to refer to the judgment in the case of Suresh Khullar Vs. Vijay Khullar, 2009 SCC Online Del 2010 wherein the Hon'ble High Court of Delhi held that:- "Needless to say that the learned Magistrate in the instant case also seems to have fallen into error by assuming that in a criminal complaint case in respect of which the warrant trial procedure is to be followed at the time of framing of charge, only a prima facie evidence is to be seen. It is in this context that the learned Magistrate seems to have referred to the judgment of Supreme Court in case titled Onkar Nath Mishra & Ors. Vs. State (NCT of Delhi) & Anr. 2008 (1) JCC 65. The learned Magistrate seems to be oblivious of the fact that in a warrant trial case instituted on the basis of a complaint at the stage of framing of the charge, quantum of proof which is required for framing of the charge is much higher than in a State case for the purpose of framing of the charge. This would be evident from the fact that Section 245(1) says t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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