9911796707
TMI Blog2022 (12) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of the Act on 23.08.2011 and notice under Section 153-A of the Income Tax Act, 1961 dated 26.04.2012 was issued to him for filing his Income Tax Return. In the income tax return income of Rs.6,47,19,401/- was shown, whereas according to respondents the peak balance in the HSBC account was offered in the return of assessment year 2007-08 by the petitioner. It is further alleged that the petitioner filed a revised income tax statement on 16.05.2015 for the assessment year declaring balance in HSBC bank, London of USD 575,010 equivalent to INR 2,53,00,44/- as his income. Petitioner was served with Notice under Section 274d of the Income Tax Act and also a penalty of Rs.10,000/- under Section 271(1) (b) of the Act was levied upon him. 2. On 27.02.2015, Assessment Order under Section 153A of the Income Tax Act, 1961 was framed and vide order dated 30.04.2015 penalty of Rs.90,45,966 under Section 271(1) (c) of the Income Tax Act, 1961 was levied upon the petitioner for not disclosing his true income. The learned trial court vide order dated 18.01.2016 took cognizance of the offence alleged. Pursuant to receipt of summons, petitioner appeared before the learned trial court and was admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Circulars issued by the department are binding on them and stand contrary thereto cannot be taken. 6. Learned Senior Counsel for petitioner submitted that in order to buy peace in his old age, petitioner had already paid all the taxes and interest on the assessment year 2006-07 on the basis of documents provided to him during search and proceedings on 16.05.2012, but the respondents have taken a stand that despite payments of taxes, petitioner will not be absolved of the offences committed by him. It was submitted by petitioner's counsel that there was no provision for the assessee to disclose foreign account till the year 2013 and still petitioner has paid the taxes which substantiates that the default on petitioner's part was not intentional and deliberate in attempt to evade the tax. Lastly, learned counsel for petitioner submitted that the impugned complaint deserves to be quashed and this petition deserves to be allowed. 7. On the other hand, learned Senior Standing Counsel appearing on behalf of respondents submitted that on information received from Government of France in the year 2011 under Double Tax Avoidance Convention with India, it came to notice that petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinarily be considered for initiating prosecution for any offence, if the individual concerned as attained the age of 70 years at the time of commission of the offence. However, if such individual has placed active role in commission of offence, this clause shall not apply." 10. Lastly, learned senior standing counsel submitted that the petitioner is a wilful defaulter and has not cooperated in the proceedings initiated by the respondents' department and so, he cannot be permitted to take benefit of his age to evade tax by having a huge sum in an undisclosed foreign account. 11. In rebuttal, learned Senior Counsel for petitioner submitted that petitioner deserves to get umbrella of Para-4 of Instruction No. 5051, dated 07.02.1991 issued by the CBDT which prohibits prosecution of persons above 70 years of age. It was submitted that the date of birth of petitioner is 30.03.1936 and the date of alleged offence is assessment year 2006-07 and so, the petitioner had already attained the age of 70 years not only at the time of filing of return for the year 2006-07 but prior to the relevant year 2006-07 itself. 12. Learned counsel for petitioner submitted that the complaint in questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the complaint in question. 15. A perusal of impugned judgment dated 24.11.2016 shows that the learned trial court has relied upon decisions of this Court in Pradip Burman Vs. Income Tax Office 2015 SCC OnLine Del 13739 and another decision of this Court in V.P. Punj Vs. ACIT 94 (2001) DLT 156 to hold that the Circular/ Instruction No. 5051 dated 07.02.1991 do not bar on initiation of prosecution who have attained the age of 70 years. 16. Relevantly, the decision in Pradip Burman (Supra) has been rendered by me and in the said case the petitioner had sought stay of criminal proceedings initiated against him on account of non-disclosure of having a foreign account in HSBC (P) Bank, Zurich. When the Investigation Wing of the Income Tax Department, Government of India came to know about his having a foreign non-disclosed account, summons under Section 131 (1A) of the Income Tax Act, 1961 were issued. In response to which, petitioner therein first took the stand that the information with the department was unauthentic/unreliable, however, later agreed to deposit income tax on account of the balance existing in the foreign bank. In the said case also the petitioner relied upon Cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011. During the check period i.e. Assessment year 2006-07, the petitioner was allegedly having the maximum credit balance USD 575,010, equivalent to Rs.2,53,00,440/- at the exchange rate of Rs.44 per USD for the Year 2006-07 (F.Y. 2005-06) in his said foreign account. In the return pertaining to the assessment year 2006-07, petitioner had declared his income as Rs.6,47,19,409/-. Admittedly the said foreign account was opened in the HSBC Bank, London on 20.08.1991 and not disclosed. Taking the date of birth of petitioner, as claimed by him, as 30.03.1936, this Court finds that at the time of commission of offence in the year 1991 he was more than 55 years of age. The Circular/ Instruction No. 5051 dated 07.02.1991 notes that prosecution normally be not initiated against a person who has attained the age of 70 years at the time of commission of offence. Meaning thereby, in terms of Circular/ Instruction No. 5051 dated 07.02.1991, the age at the time of commission of offence has to be taken and not when the proceedings initiated. 20. Even though petitioner claims to have filed a revised income tax return on 16.02.2015 declaring his additional income as Rs.2,53,00440/- under the head ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
