• Pradip Burman Vs. Income Tax Office

  • Citation: Pradip Burman Vs. Income Tax Office, CRL.M.C. 2467/2015, Judgement Dated- 2nd December, 2015, Bench- Suresh Kait, Delhi High Court [Full PDF Judgment].

    Excerpts From The Judgment

    4. In support of the aforenoted submission, learned senior counsel has heavily relied upon the case bearing Criminal Revision Petition No.36/2011, titled as ‘Arun Kumar Bhatia & Anr Vs. Vijay Kumar & Ors.’, decided by this Court on 02.11.2011. In the said case, the petitioner had taken the ground that he was above the age of 70 years on the date of filing the complaint and as per Circular dated 07.02.1991 issued by the Central Board of Direct Taxes, no prosecution can be initiated against a person who is above the age of 70 years.

    8. To strengthen his submissions, learned senior counsel has relied upon the case of Commissioner of Income Tax, Mumbai, Vs. Bhupen Champal Lal Dalal & Anr., in SLP (Crl.) No.2430 of 2000 decided on 27.02.2001 by the Supreme Court, wherein observed as under:- “ The prosecution in criminal law and proceedings arising under the Act are undoubtedly independent proceedings and, therefore, there is no impediment in law for the criminal proceedings to proceed even during the pendency of the proceedings under the Act. However, a wholesome rule will have to be adopted in matters of this nature where courts have taken the view that when the conclusions arrived at by the appellate authorities have a relevance and bearing upon the conclusions to be reached in the case necessarily one authority will have to await the outcome of the other authority. xxxx xxxx xxxx. In the present case, there is no claim of quashing of the proceedings. When ultimately the result to come out of the proceedings before the appellate authorities have a definite bearing on the cases alleged against the respondents, we find that the High Court is justified in granting the interim order it did and we do not think that such an interim order calls for interference at our hands. The learned counsel on either side relied on several decisions, but in the view we have taken it is unnecessary to refer to those decisions.”

    16. In the impugned order, the learned Trial Court has recorded that both the complaints have been filed under Sections 276C (1), 276D & 277 IT Act. The grounds of appeal and statements of facts clearly establish that there was no ground in either of the appeal in respect of the offence U/s 276D IT Act. The appeal had been filed challenging the AO and consequential outcome of imposition of penalty U/s 271(1) (c) IT Act. Thus, at any count, the outcome of the appeal filed on behalf of the petitioner will have no bearing on the present complaint at least in respect of offence U/s 276D IT Act. Moreover, no prayer for quashing of the proceedings was made by the petitioner in the application.

    17. The learned Trial Court further recorded that in ‘Sasi Enterprises Vs. Assistant Commissioner of Income Tax, (2014) 5 SCC 139, while quoting the judgment in B. Premanand & Ors. Vs. Mohan Koikal & Ors., (2011) 4 SCC 266, the Supreme Court clearly held in para 30 that pendency of appellate proceedings has no bearing in initiation of prosecution under the Income Tax Act. The relevant portion is extracted as under for ready reference. “30.....If it was the intention of the legislature to hold up the prosecution proceedings till the assessment proceedings are complete by way of appeal or otherwise the same would have been provided in Section 276CC itself. Therefore, the contention of the learned Senior Counsel for the appellant that no prosecution could be initiated till the culmination of assessment proceedings, especially in a case where the appellant had not be filed the return as per Section 139(1) of the Act or following the notices issued under Section 142 or Section 148 does not arise."

    18. Accordingly, it can be safely stated that proceedings once initiated in a warrant trial case, there is no provision under the Code of Criminal Procedure, 1973, except U/s 258 Cr.P.C., where the proceedings of the case can be stayed by the Magistrate suo moto or upon the application filed on behalf of the accused, however, Section 258 Cr.P.C. relates only to summons trial cases. Moreover, the application filed by the petitioner did not mention under which provision of Act it is filed. Thus, the learned Trial Court has rightly dismissed the application filed by the petitioner.

    19. From the above noted facts, it is crystal clear that the petitioner had admitted to have bank accounts outside India only after the investigation by the Income Tax Department. The said foreign account was the undisclosed account and the deposits therein relates to his undisclosed income and the same needs to be examined.

    20. Therefore, I am of the considered opinion that there is no illegality, infirmity or perversity in the order dated 19.02.2015 passed by the learned Trial Court. Thus, finding no merit in the instant petition, the same is hereby dismissed.

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