$ * IN HIGH COURT OF DELHI AT NEW DELHI Judgement delivered on: 2nd December, 2015 + CRL.M.C. 2467/2015 PRADIP BURMAN ..... Petitioner Represented by: Mr. S. Ganesh, Senior Advocate with Mr. Sudhir K. Makkar, Advocates. Versus INCOME TAX OFFICE ..... Respondent Represented by: Mr. Rahul Chaudhary, Senior Standing Counsel with Mr. Ruchir Bhatia, Junior Standing Counsel. CORAM: HON'BLE MR. JUSTICE SURESH KAIT SURESH KAIT, J. CRL.M.C. 2467/2015 1. present petition has been directed against order dated 19.02.2015, whereby application of petitioner was dismissed by learned Additional Chief Metropolitan Magistrate (ACMM) (Central), Tis Hazari Courts, Delhi. 2. Vide aforesaid application, petitioner sought staying of criminal proceedings against him on ground that against Assessment Order ( AO ), petitioner had already filed appeal, which is pending for adjudication. Crl. M.C. No.2467/2015 Page 1 of 9 3. Mr. Ganesh, learned senior counsel appearing on behalf of petitioner argued that complaint case filed by respondent/Income Tax Department is liable to be quashed on ground that at time of filing of criminal complaint, petitioner had attained age of 70 years, thus, no prosecution can be initiated against him. 4. In support of aforenoted submission, learned senior counsel has heavily relied upon 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 said case, petitioner had taken ground that he was above age of 70 years on date of filing complaint and as per Circular dated 07.02.1991 issued by Central Board of Direct Taxes, no prosecution can be initiated against person who is above age of 70 years. 5. Learned senior counsel further argued that case against petitioner is that he concealed his income and did not file income tax accordingly. said complaint was filed on allegation that petitioner had filed his original return of income in prescribed form duly signed and verified by him for Assessment Year ( AY ) 2007-08 on 31.07.2007 vide receipt No.000105, declaring income of Rs.75,31,769/-, in which his account with HSBC (P) Bank, Zurich, was not disclosed by him. information that petitioner is having foreign bank account with aforesaid Bank was received by Investigation Wing of Income Tax Department, Government of India. On coming to know about said information with Indian Crl. M.C. No.2467/2015 Page 2 of 9 Government, vide letter dated 30.08.2011 addressed to Director General of Investigation, Income Tax Department, New Delhi, petitioner stated that he had account outside India, which is as per FEMA Regulations, through his AR Abhay K. Aggarwal. To verify details of said foreign bank account in name of petitioner and source of deposits, summon under Section 131 (1A) of Income Tax Act, 1961 ( IT Act ) dated 02.09.2011 was issued to petitioner. Having knowledge qua start of inquiries with regard to source of funds deposited by petitioner in aforesaid foreign bank account, petitioner admitted same vide letter dated 03.10.2011, wherein he firstly stated that information with Department is unauthentic/unreliable and then agreed to deposit income tax on account of balance exists in foreign bank account in his name. Copy of same is annexed as Annexure-I to complaint filed by petitioner. Vide letter dated 07.10.2011, petitioner again offered to deposit income tax on undisclosed deposits made by him in foreign bank account, copy of letter is annexed as Annexure-J. 6. petitioner vide letter dated 14.10.2011 admitted that amount lying in foreign bank were about US$40,000 and US$32,12,000 in Financial Year ( FY ) 2005-06 and 2006-07, relevant to AY 2006-07 and 2007-08. Copy of same is annexed as Annexure-K. 7. Learned senior counsel further submitted that since petitioner has challenged AO in appeal and same is pending for Crl. M.C. No.2467/2015 Page 3 of 9 adjudication, therefore, petitioner cannot be prosecuted in criminal complaint filed by Department. 8. To strengthen his submissions, learned senior counsel has relied upon 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 Supreme Court, wherein observed as under:- prosecution in criminal law and proceedings arising under Act are undoubtedly independent proceedings and, therefore, there is no impediment in law for criminal proceedings to proceed even during pendency of proceedings under Act. However, wholesome rule will have to be adopted in matters of this nature where courts have taken view that when conclusions arrived at by appellate authorities have relevance and bearing upon conclusions to be reached in case necessarily one authority will have to await outcome of other authority. xxxx xxxx xxxx In present case, there is no claim of quashing of proceedings. When ultimately result to come out of proceedings before appellate authorities have definite bearing on cases alleged against respondents, we find that High Court is justified in granting interim order it did and we do not think that such interim order calls for interference at our hands. learned counsel on either side relied on several decisions, but in view we have taken it is unnecessary to refer to those decisions. 9. On other hand, Mr. Rahul Chaudhary, learned senior Crl. M.C. No.2467/2015 Page 4 of 9 standing counsel appearing on behalf of respondent Department submitted that petitioner has not approached this Court with clean hands and has tried to mislead this Court by stating that Instruction No.5051/1991 dated 07.02.1991 mandates that no prosecution could be initiated against person who is above age of 70 years, conveniently leaving out expression at time of commission of offence . He submitted that said instruction does not mandate that no prosecution can be initiated against person who has attained age of 70 years, however, specifies as under:- 4. Prosecution need not normally be initiated against persons who have attained age of 70 years at time of commission of offence. Thus, words need not normally used in para 4 of instructions clearly show that instructions do not provide for absolute bar on initiation of prosecution against persons who have attained age of 70 (at time of commission of offence). Further submitted, instructions are in nature of broad guidelines which should be kept in mind while initiating proceedings and provide for greater stress in initiation of prosecution proceedings in case of offences involving tax frauds, fabrication of evidence and major defaults. 10. Learned counsel further submitted that admittedly, date of birth of petitioner is 02.11.1942. As on 28.07.2006 and 31.07.2007, i.e., date of filing of original income tax return for AY 2006-07 and 2007-08 respectively, which are dates of commission of offence Crl. M.C. No.2467/2015 Page 5 of 9 under Section 276 C (wilful attempt to evade tax etc.) and 277 (false statement in verification etc.) of Act, petitioner had attained age of 63 years and 64 years respectively. Therefore, reliance placed on Instruction No.5051/1991, dated 07.02.1991 is misplaced as it is not applicable to facts of present case for reason petitioner had not attained age of 70 years at time of commission of offence as provided. 11. Learned counsel submitted that in reply to application filed by petitioner, Department stated that at time of filing of Complaint No.70/04, petitioner had not filed any appeal in respect of AO, subject matter of said complaint, however, same had been filed as afterthought with view to thwart criminal proceedings pending against him. It was further stated that even appeal has been filed only to limited extent of addition in respect of said complaint qua exchange rate of foreign currency. Even pendency of appeal is no ground for stay of proceedings if same has no bearing on complaint. 12. I have heard learned counsel for parties. 13. It is pertinent to mention here that aforesaid petition of Arun Kumar Bhatia and Anr. (supra) was allowed on statement made by learned senior standing counsel for Income Tax Department, who fairly conceded that as per Circular dated 07.02.1991, no prosecution can be initiated against person who is above age of 70 years. Crl. M.C. No.2467/2015 Page 6 of 9 14. Since aforesaid order dated 02.11.2011 was passed by this Court only, therefore, it can authoritatively be said that said order was not passed on merits, however, based on precise statement made by learned counsel for Department. fact remains that Instruction No.5051/1991 dated 07.02.1991 states as under:- 4. Prosecution need not normally be initiated against persons who have attained age of 70 years at time of commission of offence. 15. Admittedly, at time of commission of alleged offence, petitioner was not reached to age of 70 years, however, complaint in question was filed against him when he attained age of 70 years. Thus, in my considered opinion, since case of Arun Bhatia (supra) was decided on basis of Circular dated 07.02.1991 and not on merits, therefore, benefit of same cannot be given to present petitioner. 16. In impugned order, learned Trial Court has recorded that both complaints have been filed under Sections 276C (1), 276D & 277 IT Act. grounds of appeal and statements of facts clearly establish that there was no ground in either of appeal in respect of offence U/s 276D IT Act. appeal had been filed challenging AO and consequential outcome of imposition of penalty U/s 271(1) (c) IT Act. Thus, at any count, outcome of appeal filed on behalf of petitioner will have no bearing on present complaint at least in respect of offence U/s 276D IT Act. Moreover, no prayer for quashing of proceedings was made by petitioner in Crl. M.C. No.2467/2015 Page 7 of 9 application. 17. learned Trial Court further recorded that in Sasi Enterprises Vs. Assistant Commissioner of Income Tax, (2014) 5 SCC 139, while quoting judgment in B. Premanand & Ors. Vs. Mohan Koikal & Ors., (2011) 4 SCC 266, Supreme Court clearly held in para 30 that pendency of appellate proceedings has no bearing in initiation of prosecution under Income Tax Act. relevant portion is extracted as under for ready reference. 30.....If it was intention of legislature to hold up prosecution proceedings till assessment proceedings are complete by way of appeal or otherwise same would have been provided in Section 276CC itself. Therefore, contention of learned Senior Counsel for appellant that no prosecution could be initiated till culmination of assessment proceedings, especially in case where appellant had not be filed return as per Section 139(1) of Act or following notices issued under Section 142 or Section 148 does not arise." 18. Accordingly, it can be safely stated that proceedings once initiated in warrant trial case, there is no provision under Code of Criminal Procedure, 1973, except U/s 258 Cr.P.C., where proceedings of case can be stayed by Magistrate suo moto or upon application filed on behalf of accused, however, Section 258 Cr.P.C. relates only to summons trial cases. Moreover, application filed by petitioner did not mention under which pr ovision of Act it is filed. Thus, learned Trial Court has rightly Crl. M.C. No.2467/2015 Page 8 of 9 dismissed application filed by petitioner. 19. From above noted facts, it is crystal clear that petitioner had admitted to have bank accounts outside India only after investigation by Income Tax Department. said foreign account was undisclosed account and deposits therein relates to his undisclosed income and same needs to be examined. 20. Therefore, I am of considered opinion that there is no illegality, infirmity or perversity in order dated 19.02.2015 passed by learned Trial Court. Thus, finding no merit in instant petition, same is hereby dismissed. Crl.M.A.No.8543/2015 With dismissal of petition itself, instant application has become infructuous. same is dismissed accordingly. SURESH KAIT (JUDGE) DECEMBER 02, 2015 sb Crl. M.C. No.2467/2015 Page 9 of 9 Pradip Burman v. Income Tax Office