TMI Blog2022 (12) TMI 803X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 income from other sources i.e. the maximum credit balance in the undisclosed bank account maintained in HSBC account, however, this Court cannot lose sight of the fact that on 26.09.2013 Show Cause Notice under Section 274 r/w 271 of the Act was issued against him and also that penalty under Section 271 (1) (b) of the Act for non-compliance of notice under Section 142(1) was also levied vide order dated 26.09.2013. It is only thereafter that the petitioner has chosen to file revised income tax return and by doing so, he cannot evade the judicial process of law for not disclosing his correct income and foreign account since the year 1991. As decided in Pradip Burman [ 2015 (12) TMI 202 - DELHI HIGH COURT] as crystal clear that the petitioner had adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 015 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 admitted to bail on furnishing of surety. The petitioner, on the ground of his old age being 80 years and medical conditions, sought exemption from personal appearance, which was granted to him. Petitioner also made an application under Section 245(2) Cr.P.C. before the learned trial court for dropping of the proceedings on the ground of his age and on the basis of Circular/Instruction No. 5051 dated 07.02.1991, however, the same was dismissed. 3. Petitioner has preferred the present petition seeking quashing of Complaint Case bearing No. 526721/2016, titled as ITO Vs. Rajinder Kumar , filed under the provisions of Sections 276C (1)/ 276D and 277 of the Income Tax Act and all consequential proceedings arising there-from. 4. In the present petition, the grounds urged by the petitioner, who claims to an Architect by profession and 80 years of age, are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted 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 petitioner had opened an account in HSBC, London on 20.08.1991. Accordingly a search and seizure action under Section 132 of the Act was carried on 23.08.2011. Petitioner s statement under Section 132(4) of the assessee was recorded on 23/24.08.2011, wherein though petitioner at the first instance to the question No. 13 denied having any foreign account but thereafter, conceded in question No.45 that he had an account in UK. It was submitted that despite issuance of Notice dated 26.04.2012 under Section 153A of the Act, petitioner in his income tax return disclosed his income as Rs.6,47,19,409/-, as was declared in his original income tax return on 31.10.2006. Thereafter, show cause notices were issued to the petitioner. Subsequently, petitioner filed a revised income tax return on 16.02.2015 and declared his additional income as Rs.2,53,004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted 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 question has been filed under the provisions of Section 276C D and 277 of the Income tax Act, 1961. The provisions of Section 277 pertains to Concealment of Income and the penalty of Rs.90,45,966/- imposed under Section 271(1) (c) is paramatria, as it is a civil consequence; whereas Section 276C of the Income tax Act, 1961 is a criminal consequence. Lastly, it was submitted that the present petition deserves to be allowed and it is prayed that petitioner deserves to be discharged from the offences charged with. 13. The submissions advanced by learned counsel representing both the sides were heard at length and the material placed on record has been carefully perused. 14. Pertinently, in the year 2011, on an information received from France with regard to petitioner amongst others, having opened an account in HSBC, Londo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gn 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 Circular/ Instruction No. 5051 dated 07.02.1991 to submit that no prosecution can be initiated against a person who is above the age of 70 years. The petitioner in the said case was 63/64 years at the time of commission of offence but the Assessment year was 2006-07. In the said case also the petitioner had relied upon decision of this Court in Arun Kumar Bhatia (Supra). This Court in the facts of the said case held as under:- 13. It is pertinent to mention here that the aforesaid petition of Arun Kumar Bhatia and Anr. (supra) was allowed on the statement made by learned senior standing counsel for the Income Tax Department, who fairly conceded that as per Circular dated 07.02.1991, no prosecution can be initiated against a person who is above the age of 70 years. 14. Since the aforesaid order dated 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained 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 income from other sources i.e. the maximum credit balance in the undisclosed bank account maintained in HSBC account, however, this Court cannot lose sight of the fact that on 26.09.2013 Show Cause Notice under Section 274 r/w 271 of the Act was issued against him and also that penalty under Section 271 (1) (b) of the Act for non-compliance of notice under Section 142(1) was also levied vide order dated 26.09.2013. It is only thereafter that the petitioner has chosen to file revised income tax return and by doing so, he cannot evade the judicial process of law for not disclosing his correct income and foreign account since the year 1991. 21. Further, in Pradip Burman (Supra) I have already held as under:- 19. From the above noted facts, it is crystal clear that the petitioner h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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