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TMI Blog2021 (9) TMI 1444X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of Tax Act, 2015 (for short 'Black Money Act') for the assessment year 2017-18. It is alleged by the complainant that the complainant is the Deputy Director of Income Tax (Investigation), Mangaluru. The complainant submits that the Principal Director of Income Tax (Investigation), Bengaluru has authorised the filing of the complaint vide sanction order dated 27.03.2019. A search and seizure action under Section 132 of the Income Tax Act, 1961 (for short 'I.T. Act') was conducted on 08.02.2018 in case of M/s. Mukka Sea Food Industries Private Limited, Mangaluru and in the residence of accused. During the course of search proceedings, certain books of accounts and documents were found and seized. The accused had purchased a flat in Ajman during the year 2014 for Rs.6.00 lakh Dirhams which is almost equivalent to Rs.1 Crore as on the date of purchase which is not declared in his Income Tax Returns (hereinafter referred to as 'ITR'). The accused has also opened an account in Bank of Baroda, Sharjah Branch bearing A/c No.90040200015340 but not reported in any of his ITR. This bank account was operated during 25.02.2015 to 26.02.2018. The accused also acquired interest in United Fis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Black Money. Learned counsel has further contended that the due date of filing the ITR for the assessment year is 2017- 18, but, the accused did not file the return or disclosed in the ITR filed on 31.03.2018. Even though, the I.T. Department has already conducted the search and issued notice to the accused, but the same was disclosed only after filing of the revised ITR filed on 23.02.2019. It is further contended that the accused has willfully suppressed the Black money without declaring the same, thereby, it is punishable under Section 50 of the Black Money Act. He further contended that as per Section 54 of the Black Money Act, the presumption is available to the prosecution where the accused is required to rebut the presumption, when the reverse burden is cast upon the petitioner-accused, he has to go for the trial and take all the available contention to disprove the case of the prosecution and it cannot be said that the accused has voluntarily declared his assets, but only after the search, the raid is conducted by the I.T. Department. Therefore, the accused is liable to be prosecuted under Section 50 of the Black Money Act. Hence, prayed for dismissing the petition. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where he has not declared these 3 assets in his ITR. But it is also an admitted fact that the accused subsequently has filed the revised ITR on 23.02.2019 after making payment of tax in the voluntary disclosure scheme introduced by the Government of India. Now, the question arises that once he has declared either in the original ITR or in the revised ITR, whether it is punishable under Section 50 of the Black Money Act. In this regard, it is necessary to refer Sections 4 and 50 of the Black Money Act, which is as under: "4. Scope of total undisclosed foreign income and asset. - (1) Subject to the provisions of this Act, the total undisclosed foreign income and asset of any previous year of an assessee shall be, - (a) the income from a source located outside India, which has not been disclosed in the return of income furnished within the time specified in Explanation 2 to sub-section (1) or under sub-section (4) or sub-section (5) of section 139 of the Income-tax Act; (b) the income, from a source located outside India, in respect of which a return is required to be furnished under section 139 of the Income-tax Act but no return of income has been furnished within the time spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 50 of the Black Money Act. 10. Section 50 of the Black Money Act also defines that the punishment for failure to furnish in return of income, any information about an asset (including financial interest in any entity) located outside India. This section also reveals that if any person, being a resident other than not ordinarily resident in India within the meaning of clause(6) of section 6 of the Income Tax Act, who has furnished the return of income for any previous year under sub-section (1) or sub-section (4) or sub-section (5) of section 139 of that Act, willfully fails to furnish in such return any information relating to an asset (including financial interest in any entity) located outside India, held by him, as a beneficial owner or otherwise or in which he was a beneficiary, at any time during such previous year, or disclose any income from the source outside India, he shall be punishable with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine. 11. In this case, admittedly, the petitioner-accused is said to have acquired the property during 2013-14 as per the submission made by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the I.T. Department and hence, it is contended that it is an offence. In my considered opinion, the allegation made by the respondent-I.T. Department is not sustainable for the reason that whether the notice is issued or not or whether the search is conducted or not, but the petitioner has already filed the ITR as per Section 139(1) & (4) as on 31.03.2018 and as per 139(5) of the I.T. Act, he is having one year time for filing revised ITR from filing of the original ITR till the end of the said assessment year. The respondent has already got issued notice to the petitioner on 31.10.2018. This notice was issued by the respondent after filing of the original ITR. 14. As I held above, another one year time is available for the petitioner to file his revised ITR as per Section 139(5) of the I.T. Act. Accordingly, he has filed within that one year time and disclosed his assets by paying necessary tax. It also reveals that he has declared the assets in the revised ITR. Therefore, once he declares the foreign assets within one year from the date of filing of original ITR, it cannot be considered, that he has willfully not declared or failed to declare even in the revised ITR filed un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be given some meaning and an offence, under Section 50 of the BM Act, would be attracted, only after the period to file the revised return, under Section 139(5) is over and if there is a wilful failure to furnish the information of a foreign asset/financial interest in the return. Except in cases, of course, where there is a complete fraud played by the assessee, by filing a false return." I am in the respectable agreement with the decision of the Division Bench of the High Court of Madras, wherein, here in this case also the petitioner-assessee was having time till 31.03.2019 i.e., one year from the date of filing the original ITR in order to file the revised ITR. In the above said case, even before the expiry of one year, the I.T. Department has issued notice to the assessee which was under challenge. But here in this case, the notice was issued prior to filing of the ITR. Subsequent to filing of the ITR, the petitioner-assessee has already filed the revised ITR as per Section 139(5) of the I.T. Act as on 23.02.2019 i.e., before expiry of 31.03.2019. In order to attract offence under Section 50 of the Black Money Act even in spite of filing the revised ITR under sub-section 5 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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