TMI Blog2019 (2) TMI 1919X X X X Extracts X X X X X X X X Extracts X X X X ..... r paid or made satisfactory arrangements for the payment. Here in the case on hand, admittedly, the petitioner has paid the tax amount, without protest and in the meantime, without prejudice to his stand. In other words, the petitioner can still fight for his case. Moreover, the provision is very clear that the assessee should voluntarily give such disclosure. It does not brush aside the fact that the petitioner has not satisfied the ingredients of Section 273A of the Act, ie., made disclosures voluntarily and in good faith. The next thing for this Court to analyse here is that Clause 5 of Section 273A of the Act clearly says that every order made under this Section shall be final and shall not be called into question by any court or any other authority. But, the order, which the petitioner refers here for his rescue, ie., the order dated 25.03.2014 passed by the Commissioner (Appeals) under Section 250(6) of the Act, is an appealable order and the same has already been put under challenge by the Department before the Income Tax Appellate Tribunal, where the order of the Commissioner (Appeals) was upheld. Therefore, it is clear that the order passed by the Commissioner (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to this account. The documents referred were obtained by the Central Board of Direct Taxes, New Delhi from German Tax authorities under the Double Taxation Avoidance Agreement Scheme entered into with the Government of India. 2.2. Based on these informations, the respondent had verified the income return statement filed by the petitioner and found that the bank balance in the foreign bank account was not reflected either by way of income or deposits or interest from deposits and therefore, treating the assessment as an escaped assessment, assessment proceedings were reopened and a notice under Section 148 of the Act was issued to the assessee on 25.03.2009, within the limitation period. During the reassessment proceedings, the petitioner was examined on oath under Section 131 of the Act on 16.11.2009 and his statements were recorded. The petitioner denied that he created any such Trust and deposited any money in the said Trust. However, during the course of the examination, the petitioner came forward to pay the taxes on the basis of the information, without prejudice to his stand. 2.3. The Department concluded the reopened assessment by determining the assessed income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 279(1A) of the Income Tax Act has not been borne in mind by the High Court while interfering with an order of acquittal. Mr.Shukla, no doubt has indicated that the said provision will have no application as the penalty imposed has not been reduced or waived by an order under Section 273A. We do not agree with the aforesaid literal interpretation of the provisions of Section 279(1A) of the Act, when we find that the Commissioner of Income Tax (Appeal) has reduced the penalty. ... 5. Learned Senior Counsel further contended that the complaint was filed on the strength of certain documents received by the Central Board of Direct Taxes, New Delhi and these documents are xerox copies, which cannot be relied upon by the prosecution under Section 78(6) of the Indian Evidence Act, 1872. Any foreign documents, as such relied by the prosecution have to be produced as original for evidence or by a copy certified by the legal keeper of the original with a certificate under Diplomatic or Consular Officers (Oaths and Fees) Act, 1948, along with the proof of character of the foreign document, according to the law of that foreign country. Therefore, the document without due certificate loos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Counsel for the respondent further contended that the question of limitation cannot be raised as the tax appeal and criminal case are independent to each other and there is no direct implication in conducting the criminal case. For launching a criminal case for economic offences, there is no limitation as per the amendment Act, ie., Economic Offences (inapplicability of Limitation) Act, 1974 (Act No.12 of 1974). It is further stated that the question of limitation for reopening the assessment order was already rejected by the appellate authorities. 9. With regard to Section 279 of the Act, the Counsel for the respondent submitted that Section 279 is applicable only in case where the waiver of reduction under Section 273(A) by the Commissioner of the Assessment Circle, ie., the Assessing Officer before giving such reduction or waiver get approval / permission from Commissioner for reduction or waiver as mentioned in 273(A)(1)(b), ie., if the assessee co-operated in the enquiry relating to the assessment of his income and has either paid or made satisfactory arrangements for the payment of any tax or interest payable in consequences of an order passed under income tax act in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of Limitation) Act, 1974 (Act No.12 of 1974), there is no limitation for launching such type of cases and therefore, the first ground raised by the petitioner lacks merits. 14. The second ground raised by the petitioner is that the documents relied upon by the prosecution are only xerox copies, which are unauthenticated and will not be used before a Court of law, as per Section 78(6) of the Indian Evidence Act, 1872. For better understanding, Section 78(6) of the Indian Evidence Act, is extracted thus: 78. Proof of other official documents: .. (6) Public document of any other class in a foreign country, - by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary public, or of an Indian Consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country. Here in the case on hand, the documents relied upon by the respondent Department were obtained from German Tax Authorities under the Double Taxation Avoidance Agreement Scheme entered into with the Government of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etion, whether on his own motion or otherwise:- (i) ..omitted.. (ii) reduce or waive the amount of penalty imposed or imposable on a person under section 270A or clause (iii) of sub-section (1) of section 271; or (iii) ...omitted... if he is satisfied that such person - (a) ...omitted... (b) in the case referred to in clause (ii), has, prior to the detection by the Assessing Officer, of the concealment of particulars of income or of the inaccuracy of particulars furnished in respect of such income, voluntarily and in good faith, made full and true disclosure of such particulars, (c) ...omitted... and also has, in the case referred to in clause (b), co-operated in any enquiry relating to the assessment of his income and has either paid or made satisfactory arrangements for the payment of any tax or interest payable in consequence of an order passed under this Act in respect of the relevant assessment year. ..... (5) Every order made under this section shall be final and shall not be called into question by any court or any other authority. 17. There are two things for this Court to analyse here. One is that the penalty can be reduced / waived un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion / acceptance of additions will amount to concealment of income. 7.8. Further, the appellant's admissions are not voluntary. It was only when the Government of India received the information from the Government of Germany regarding the appellant's bank account and when the AO re-opened the assessment and confronted with the details, the appellant came forward to accept and offer amount for tax. This is clearly not a voluntary admission by the appellant. The admission by the appellant is rather a compelled one. Thus, the appellant's claims of voluntary admission and offer of the amount to tax should heavily be discounted. 18. Though the Commissioner (Appeals) has observed such, he has reduced the penalty from 300% to 100%, for the reason that when these things were brought to the notice of the petitioner, he accepted and agreed for the addition, without protest. On this score alone, the Commissioner (Appeals) has reduced the penalty. But, that does not brush aside the fact that the petitioner has not satisfied the ingredients of Section 273A of the Act, ie., made disclosures voluntarily and in good faith. 19. The next thing for this Court to analyse here is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. He further submitted that the petitioner's plea for dispensing with his personal appearance can very well be considered by the trial Court itself under Section 205 Cr.P.C., as such, he objected for considering the same by this Court at this juncture, ie., after pronouncing the order on 28.02.2019. 4. The age of the petitioner is 70 years and the same is not in dispute. But, this Court is barred under Section 362 Cr.P.C., to entertain the petitioner's plea for dispense with, after pronouncing the order on 28.02.2019. Had the Counsel been sought for dispensing with the personal appearance of the petitioner prior to the pronouncement of this order on 28.02.2019, this Court would have considered the request at that point of time itself. But the fact remains that this Court has heard the matter and reserved it for orders at its Principal Seat, Chennai on 03.12.2018 and pronounced the orders at Chambers, Madurai on 28.02.2019. Therefore, it would not be possible for the Counsel to sought for the same before pronouncing the order. 5. Be that as it may, as per Section 362 Cr.P.C., this Court cannot alter its judgment once it is signed. For better understanding, Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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