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2021 (9) TMI 1444 - HC - Income TaxBlack Money - offence punishable under Section 50 of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 - Scope of total undisclosed foreign income and asset - revised ITR by disclosing the assets has been filed only after issuance of notice by the I.T. Department - HELD THAT:- In order to attract offence u/s 50 of the Black Money Act even in spite of filing the revised ITR under sub-section 5 of Section 139 of I.T. Act, if the assets were not disclosed, then only the prosecution can be launched under Section 50 of the Black Money Act. Therefore, the complainant alleging in the complaint that the assessee willfully has not disclosed the foreign assets in the ITR as well as revised ITR is not sustainable under the law. Therefore, filing of the complaint by the complainant under Sections 4 & 50 of the Black Money Act does not attract against the petitioner. Once he has filed the revised ITR under subsection 5 of Section 139 of the I.T. Act by declaring the assets, when there is no offence is made out, then conducting the trial is abuse of process of law. The initial burden of proving the case is always with the complainant-prosecution and after discharging the initial burden, then the burden shifts on the accused to rebut the presumption available under the law. When the assets were already disclosed in the revised ITR u/s 139(5) of the I.T. Act, it cannot be said that there is any willful non-disclosure by the accused. When there is mens rea on the part of the accused, then the question of rebutting the presumption under Section 54 of the Black Money Act does not arise. Even otherwise, if the assessee failed to disclose the foreign assets under sub-section (1) or sub-section (4) or sub-section (5) of Section 139 fails to furnish any information relating to any asset at any time during such previous year, the AO may direct that such person shall pay, by way of penalty as per Section 43 of the Black Money Act. Apart from that, it is not a case of the I.T. Department that there were any income yield by the petitioner from those assets. Therefore, complaint itself is not sustainable once the assessee has already filed the revised ITR by disclosing the foreign assets and the question of saying that he has willfully failed to disclose the assets cannot be acceptable. When there is no offence is made out, then conducting the proceedings against the petitioner-assessee is abuse of process of law and hence, liable to be quashed.
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