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2015 (4) TMI 409 - DELHI HIGH COURT

2015 (4) TMI 409 - DELHI HIGH COURT - [2015] 378 ITR 95 (Del) - Criminal proceedings - prosecution - non-compliance/non-cooperation to the notices issued u/s 142(1) - discloser of foreign bank account which existed with the HSBC - Sanction / Authorization granted by the CIT - commission of offence u/s 276D, r/w Section 278E as the details of the account opening and transaction therein the foreign bank account will be specifically in the knowledge of accused who being the account holder will be h .....

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h law had to be taken against the petitioner who would be entitled to contest the same in accordance with law. However, it is also a matter of fact that the criminal proceedings have been initiated by the respondent against the petitioner on the basis of the sanction issued by the department on 10th February, 2015 and in case the grounds of the sanction are read, it is evident that the reply sent by the petitioner contains the copy of the bank statement filed for the period has not been mentione .....

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oduce the same and to consider the replies dated 9 th February, 2015 and 11th February, 2015 before passing the summoning order or the respondent ought to have sought prayer for amendment in the sanctioning letter. The same has not happened in the present case.

Under these circumstances, the order dated 27th February, 2015 passed in Criminal Complaint whereby the summoning order has been passed, is liable to be quashed on technical reason. - Crl. M.C. No.1100/2015 & Crl. M.A. No.4098/ .....

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Tax (Central-I), the complaint No.CC/91/14 dated 12th February, 2015 preferred by the respondent through Dr.Surjeet Singh, ACIT, Central Circle 02 before the Court of Additional Chief Metropolitan Magistrate and the order dated 27th February, 2015 passed by the Additional Chief Metropolitan Magistrate. 2. The following prayer is made: A. Call for the records of the Criminal Complaint No. 100/4/15 dated 12.02.2015 titled ITO Versus Shravan Gupta instituted by the Respondent herein and pending bef .....

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titioner has been summoned by the Trial Court; and C. Quash/set aside the Sanction/Authorization dated 10.02.2015 granted by the Commissioner of Income Tax (Central-I) for the commencement of prosecution against the petitioner. 3. When the petition was listed on 20th March, 2015 the learned counsel for the respondent was present and he made his submissions for some time. He was asked to file the reply. However, he submitted that he would make his submissions on the next date. When the matter was .....

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nvestigation-II). The peak amount lying in the said account during the year ending 31st March, 2007 was around US$ 1.3 million. The account was closed in the year 2007. 5. The petitioner s statement was recorded on 24th November, 2011 and 9th December, 2011 under Section 131 of the Income Tax Act. 1961 (hereinafter referred to as the Act ). The Deputy Commissioner of Income Tax, Central Circle-7 issued a notice dated 9th July, 2012 to the petitioner under Section 148 of the Act. The petitioner f .....

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etails. The petitioner responded to the same by replies dated 22nd July, 2013, 5th August, 2013, 24th October, 2013, 19th December, 2013, 20th February, 2014 and 27th October, 2014. 7. The statement of the petitioner was recorded on oath on 5th January, 2015 by the complainant Dr.Surjeet Singh ACIT, it was accepted by the petitioner that he had voluntarily disclosed his foreign bank account with HSBC Private Bank, Geneva, Switzerland by letter dated 17th November, 2011. The respondent issued a S .....

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The petitioner in compliance to the notices issued under Section 142(1) of the Act and in furtherance to the reply dated 19th January, 2015 sent another reply dated 9th February, 2015 whereby it was stated that the petitioner with great difficulty had been able to obtain the copy of the bank statement of the Account Number 12119836 at HSBC, Private Bank, Geneva, Switzerland for the entire period of operation of the said Account. This position was again reiterated by reply dated 11th February, 20 .....

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er Section 276-D of the Act for the assessment year 2006-07. The respondent through Dr. Surjeet Singh, ACIT, Central Circle 02, Income Tax Department, New Delhi filed a Criminal Complaint dated 12th February, 2015 under Section 276-D of the Act. 10. It is necessary to reproduce the sanction/authorization dated 10th February, 2015 under Section 279(1) of the Act for initiating the action against the petitioner. The extract of the same reads as under: OFFICE OF THE PRINCIPAL COMMISSIONER OF INCOME .....

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income. 3. AND WHEREAS statement u/s 131 of the I.T. Act was recorded wherein, he has stated that the bank account was opened on reference by the Royal Family of Sultan of Oman and initially US$1.1 million were deposited and the last balance was US$1.2 million or US$1.3 million at the close of the said bank account in 2007. 4. AND WHEREAS the case was re-opened and the assessee has filed his return in response to notice u/s 148 of I.T. Act declaring peak balance of his said foreign bank account .....

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ed 19.01.2015, which was duly considered by me and I found the same unsatisfactory. The assessee has referred to the circular dated 24.04.2008 stating that the appeal against order u/s 271(1)(b) of the I.T. Act is pending before the CIT (A). The said circular only provided that the cases where the penalty has been confirmed upto I.T. A.T. must be proceeded for prosecution, it does not in any way imply that those cases where the above condition have not been satisfied cannot be proceeded. No pena .....

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count including bank statements etc. which he has wilfully not furnished. 7. AND WHEREAS from the perusal of records placed before me, I am satisfied and am of the opinion that the assessee has wilfully not furnished the required details as per Notice U/s 142 (1) of the IT Act and has thus committed offence punishable u/s 276-D of the I.T. Act 1961. 8. AND THEREFORE I, Meeta Nambiar, Principal Commissioner of Income Tax, (Central-1), New Delhi in exercise of the power vested in me u/s 279(1) of .....

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as CW-1 and pre-summoning is closed by him vide separated statement. Heard on the point of summoning. Perused the record. The present complaint has been filed U/s 276D with the allegation that the proposed accused vide his letter dated 17.11.2011 dully signed by him disclosed having Bank Account in Switzerland and also surrendered the peak of his account with HSBC, Jeneva, which income was not disclosed in his original return. Upon his disclosure, his statement was recorded on 24.11.2011 wherei .....

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foreign bank account including statement since beginning till date and account opening form etc. for the purposes of completion of assessment, though replies were sent by him but no details was furnished of the said foreign bank account. A show cause notice dated 07.01.2015 was sent but reply was not found satisfactory. Hence, the present complaint. The complaint alongwith documents and from the testimony of CW-1, there is sufficient material on record disclosing the commission of offence u/s 2 .....

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inant is exempted through his counsel Sh. Brijesh Garg who has been appearing in the court and looking after the case filed by the complainant till further orders. Accused be summoned on filing of PF and RC/speed post/courier as well as through the office of the complainant. 12. It appears that the petitioner in compliance with notices issued under Section 142(1) of the Act and in furtherance to the reply dated 19th January, 2015 sent another reply dated 9th February, 2015 whereby it was stated .....

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appearing on behalf of the respondent has not denied the fact that the said letter dated 11th February, 2015 was received by the department. However, he was not sure whether the reply dated 9 th February, 2015 was received although copy of the reply was shown by Mr.Sethi Senior counsel which contained the office stamp of the respondent on the office copy of the said letter. 14. The argument of Mr.Sandeep Sethi, learned Senior counsel of the petitioner, is that CIT (Central-I) infact has without .....

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ount have been sent/disclosed. His simple argument is that the petitioner wants to pay the entire tax of the disclosed amount at HSBC, Private Bank, Geneva, Switzerland, without any condition as the petitioner just wants to get rid of any notice of prosecution of the respondent. It is also stated by Mr.Sethi that the department has now all the information of account. It may assess the tax thereon. The same would be deposited by the petitioner without any further delay. He submits that since the .....

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ge about the reply dated 9th February, 2015 at the time of filing the complaint otherwise in the sanction letter the factum of the reply ought to have been considered. He suggested that letter dated 11th February, 2015 might have come to the appropriate desk after one or two days at that time as the criminal complaint was already filed on 10 th February, 2015. 18. There is no dispute that if action as per law is required to be taken against the petitioner under the said provision for noncomplian .....

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al proceedings have been initiated by the respondent against the petitioner on the basis of the sanction issued by the department on 10th February, 2015 and in case the grounds of the sanction are read, it is evident that the reply sent by the petitioner contains the copy of the bank statement filed for the period has not been mentioned/ discussed in the same. 20. Even otherwise assuming for the sake of the argument that the reply dated 9 th February, 2015 was not put up before the appropriate o .....

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e counter is received by the appropriate desk within two days, but in the present case, the presummoning evidence in the above said matter was recorded on 27th February, 2015. At least on that date, the department had full knowledge of the contents of the two letters dated 9th February, 2015 and 11th February, 2015. The statement of Dr.Surjeet Singh does not contain the details of receipt of the said replies/letters. It was also not disclosed in the statement that the petitioner has already sent .....

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