Delhi High Court
Sanjay Bhandari vs Income Tax Office on 8 November, 2024
Author: Dinesh Kumar Sharma
Bench: Dinesh Kumar Sharma
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON - 20.09.2024
% PRONOUNCED ON - 08.11.2024
+ CRL.M.C. 805/2020, CRL.M.A. 3314/2020, CRL.M.A. 10806/2020,
CRL.M.A. 10808/2020
SANJAY BHANDARI .....Petitioner
Through: Mr. Dayan Krishnan, Sr. Advocate
along with Mr. Avneesh Arputham,
Mr.Ankit Sharma and Mr. Abhishek,
Advocates
versus
INCOME TAX OFFICE .....Respondent
Through: Mr. Zoheb Hossain Sr. Standing
counsel for Revenue with Mr.Sanjeev
Menon, Jr. standing counsel, Mr.
Vivek Gurnani, Mr. Manish Dubey
Advs.
CORAM:
HON'BLE MR. JUSTICE DINESH KUMAR SHARMA
JUDGMENT
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DINESH KUMAR SHARMA,J :
S. No Particulars Page Nos.
A. Brief facts 2-12
B. Submissions of Petitioner 12-14
C. Submissions of Respondent 14-16
D. Finding and Analysis 17-33
A. BRIEF FACTS
1. The present petition has been filed seeking the quashing of Criminal
Complaint No. 2121/2019, pending in the Court of the learned ACMM,
Tis Hazari Court, Delhi, and the summoning order dated 10.05.2019.
The Additional Commissioner of Income Tax (Central), New Delhi,
has filed the complaint under Section 51(1) of the Black Money
(Undisclosed Foreign Income and Assets and Imposition of Tax) Act,
2015 (hereinafter referred to as the “Black Money Act”). The complaint
alleges that a search and seizure operation was conducted on the
assessee’s premises at B-217, Greater Kailash-I, New Delhi, on
27.04.2016.
2. During the search and seizure operation, incriminating documentary
evidence and information were discovered, establishing that the
accused (Sanjay Bhandari) held the following undisclosed bank
accounts and properties, tabulated as under;
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3. It was alleged that as per provisions of the Income Tax, 1961 along
with the return of income from the assessment year 2012-13 the
accused failed to disclose as is evident below:
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4. The complainant alleged that information was received through
Foreign Tax and Tax Research regarding undisclosed foreign bank
accounts, foreign properties, etc.
5. The complainant further alleged that a search operation under Section
132 of the IT Act, 1961 was conducted against Sh. Sanjeev Kapur, a
Chartered Accountant, on 07.02.2017 at IGI Airport, Delhi, and at his
office in South Extension, Part-II, New Delhi. Sh. Kapur was allegedly
involved in backdating and fabricating documents for Sh. Sanjay
Bhandari. Searches were also conducted on 10.02.2017 against Sh.
Anirudh Wadhwa and Sh. Abhinandan Banerjee, advocates allegedly
involved in similar activities under Section 132 of the IT Act, 1961.
6. The complainant alleged that incriminating evidence and documents
were unearthed during these searches. Statements recorded under oath
established that the accused, Sanjay Bhandari, was preparing to alienate
his foreign assets and offshore entities by backdating documents to
evade taxes under the Black Money Act, 2015. The investigation
revealed that the accused held foreign assets in the form of foreign
bank accounts, immovable properties, and interests in foreign entities.
He had incorporated entities in Dubai as a director and/or beneficial
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shareholder, and further inquiries indicated he had financial interests in
an entity incorporated in Panama. Notices under Section 10(1) of the
Black Money Act, 2015, were issued to the accused on 22.09.2016 and
10.10.2016, which he responded to on 03.11.2016.
7. The complainant alleged that evidence, including the admission of Sh.
Sanjeev Kapoor, the accused’s Chartered Accountant, revealed a
scheme to appoint the accused as the sole trustee of the Alrahma Trust
(based in the UAE) effective from 2006, to show that all foreign
assets/offshore entities held by him were in a fiduciary capacity as
trustee rather than in his individual capacity. It was alleged that the
accused planned to transfer the sole trusteeship to Sumit Chadha, a
close associate and UK national, from March 2015, just before the
Black Money Act, 2015, came into effect. This would have enabled the
accused to alienate his foreign assets by placing them under the trust’s
umbrella, achieved through fabrication and backdating of documents.
Further, during the search of Sh. Sanjeev Kapoor at IGI Airport on
07.02.2017, incriminating evidence regarding the fabrication of
documents related to the trust was found, including a copy of the
Alrahma Trust deed dated 18.02.2006, naming the accused as the sole
trustee and Hussain Darwish Saleh Alrahma (a UAE resident) as the
settler. Correspondence between the accused, Alrahma, and Sumit
Chadha dated between 23.02.2015 and 15.03.2017, regarding the
accused’s resignation and the appointment of Sumit Chadha as trustee,
was also discovered. However, in his statement under Section 131(1A)
of the Act, Sh. Sanjeev Kapoor admitted that the signatures on these
documents were obtained during his visit to London and Dubai
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between 31.01.2017 and 05.02.2017.
8. The complainant alleged further that documents and materials
recovered from Sh. Sanjeev Kapoor and Sh. Anirudh Wadhwa
indicated that the petitioner met Sh. Kapoor in his South Extension Part
II office, along with his legal team, including Sh. Anirudh Wadhwa of
Wadhwa Law Firm, in June-July 2016. During this meeting, they
allegedly decided to establish a trust structure, appointing the accused
as the sole trustee. Subsequently, the Alrahma Trust was set up in
Dubai, UAE, with the accused as the sole trustee effective February
2006. Later, it was decided that the accused would resign as sole
trustee effective March 2015, with Sumit Chadha appointed in his place
retroactively.
9. The Learned ACMM, Special Acts, Central District, Tis Hazari, Delhi,
vide order dated 10.05.2019, summoned the accused for the offense
under Section 51(1) of the Black Money Act, 2015, for the assessment
year 2017-18.
10. Aggrieved by this, the petitioner filed the present petition,
predominantly on the ground that no prima facie case is made against
the accused. The petitioner claims that the prosecution was initiated
without completing the assessment proceedings, and there is no finding
by the complainant’s department that the petitioner evaded any tax.
Furthermore, the petitioner submitted that there is no evidence showing
that the alleged foreign assets belonged to him. The summons issued to
the petitioner remained unserved, as he does not reside at the address
given in the complaint and has been abroad for over three years. It was
argued that the learned Magistrate illegally issued non-bailable
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warrants, against which Criminal Revision Petition No. 444/2019 was
filed but subsequently dismissed.
11. The petitioner has predominantly sought the quashing of the criminal
complaints on the following grounds;
A. The impugned criminal complaint fails to disclose any
evidence linking the alleged foreign assets to the petitioner. The
Income Tax Department, has not produced any evidence in the
complaint to connect the petitioner with the alleged assets. In the
absence of such evidence, no case is made out against the
petitioner as the essential elements of the offense are not
established.
B. The complaint in paragraph 3 states that “information was
received through FT and TR regarding undisclosed foreign bank
accounts and foreign properties etc.,” with Annexure E (colly)
attached for detailed information. However, this annexure only
includes letters dated 25.09.2017 and 26.09.2017 from the
Assistant Director of Income Tax (Investigation) Unit 6(2) to the
Assistant/Deputy Commissioner of Income Tax, Central Circle-
26, New Delhi, without any details of the petitioner’s ownership
of the alleged assets. Despite the complaint’s claim that Annexure
E provides details of the petitioner’s alleged foreign assets, a
review shows that none of the annexures contains evidence of
ownership by the petitioner.
C. The Black Money Act, 2015 is designed to address
“undisclosed assets located outside India” that are held by the
assessee either as the owner or as the beneficial owner. This is
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reflected in Sections 3 and 4 of the Act, among others, which
address undisclosed foreign income and assets. The complaint
lacks any evidence showing that the petitioner is the owner or
beneficial owner of the alleged assets, even at a prima facie level.
Ownership of an asset is typically proven by documentary
evidence, yet no such document is provided by the complainant to
establish the petitioner’s ownership of the foreign assets in
question. Therefore, the learned Additional Chief Metropolitan
Magistrate (ACMM) should not have issued summons against the
petitioner as the essential elements of the offense are not
established, even at a prima facie level.
D. For an offense under Section 51 of the Black Money Act, 2015,
the assessee must not only be the owner or beneficial owner of the
alleged foreign asset, but the ownership must also have occurred
after the commencement of the Black Money Act, i.e., after 1st
July 2015. In this case, the respondent has failed to provide any
evidence that the petitioner owns any alleged foreign assets or that
such ownership existed after the Act’s commencement. In absence
of any such evidence, the entire case against the petitioner lacks
merit and should be dismissed.
E. The petitioner is not the owner of the assets mentioned in the
complaint, and there is no basis to initiate proceedings against him
under Section 51 of the Black Money Act, 2015. This indicates a
lack of due diligence by the learned ACMM when taking
cognizance of the matter. The documents indicate that the
petitioner does not own any of the alleged foreign assets, making
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the complaint unfounded and potentially an act of harassment and
misuse.
F. Further, criminal prosecution should not commence without
first completing the petitioner’s assessment proceedings to
determine any tax evasion. The legislative intent is clear from a
reading of Sections 2, 10, 13, and 30 of the Black Money Act,
2015. It is settled proposition that if criminal prosecution is
contingent on the determination of tax evasion, it cannot be
initiated before completing assessment proceedings.
G. The Income Tax Department cannot proceed with a case under
Section 51 of the Black Money Act unless the petitioner is first
assessed to tax under Section 10, is issued a demand under Section
13, and declared to be in default under Section 30(4). Section
30(4) of the Black Money Act states that an assessee will be
considered in default if tax arrears remain unpaid after 30 days
from receipt of the demand notice. Once an assessee is declared in
default, recovery proceedings follow, as outlined in the Act. It is
essential for the assessing officer to establish tax liability before
alleging that an assessee attempted to evade tax.
H. A notice was issued to the petitioner under Section 10 of the
Black Money Act on 22.09.2016. The petitioner responded on
03.11.2016, clearly stating that he is not the owner or beneficial
owner of any alleged foreign assets. The petitioner also asserted
that his statements made during a search and seizure in April 2016
were given under duress. According to Section 11(1) of the Black
Money Act, an assessment order cannot be made more than two
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years after the end of the financial year in which the Section 10(1)
notice was issued. This two-year period expired on 31st March
2019, and no assessment can now be conducted.
I. A letter dated 09.07.2019 from the Income Tax Department
confirmed that the petitioner’s assessment under the Black Money
Act, 2015, remains incomplete. This indicates that the mandatory
time period under Section 11 of the Act has expired, rendering any
criminal proceedings baseless. Without an assessment, there can
be no finding of tax evasion, and thus, no grounds for prosecution.
J. The respondent must complete assessment proceedings and
determine tax evasion before initiating a criminal complaint. It is
settled law that completion of assessment is a prerequisite for
criminal proceedings; without it, no basis exists to allege tax
evasion.
K. Without conceding the allegations in the complaint, even if
true, they would constitute preparation rather than an attempt. An
attempt would only arise if a backdated document were submitted
as a defense to the Income Tax Department. Consequently, no
willful attempt to evade tax under Section 51(1) of the Black
Money Act is made out.
12. During the pendency of the proceedings, the petitioner filed application
CRL.M.A. 10806/2020, seeking to amend the petition. In this
application, the petitioner argued that, during the course of the present
petition, the respondent issued an assessment order dated 23.03.2022,
which was allegedly time-barred. A demand notice dated 23.03.2020
was issued pursuant to the assessment order, along with a show cause
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notice for penalty under Sections 41 and 43 of the Black Money Act.
The petitioner also filed a criminal M.A. 10808/2020 seeking a stay on
the assessment order dated 23.03.2020 under the Black Money Act.
The respondent, Sh. Adarsh Kumar Modi, then Principal Commissioner
of Income Tax (Central), New Delhi, filed a detailed counter-affidavit,
asserting his familiarity with the case due to his role in the assessment
wing of the Income Tax Department.
13. The deponent denied all of the petitioner’s claims, labeling them as
false, misleading, and contrary to legal standards, and submitted that
the petition is not maintainable as it lacks an apostille, similarly to the
amendment application, and stated that the affidavits filed with the
petition and amendment were drawn in London, U.K. As per law,
affidavits executed abroad must be legalized or apostilled, and thus, the
affidavits lack legal validity. It was further argued that Section 51(1) of
the Black Money Act, under Chapter V, operates independently under
Section 48(2) and is not dependent on any assessment order under the
Act. Therefore, any order not made due to time limitations or other
reasons cannot be used as a defense. The deponent emphasized that
assessment proceedings and orders are entirely separate from the
prosecution initiated against the petitioner.
14. Additionally, the deponent submitted that if the petitioner is aggrieved
by the assessment order, he has an effective alternative remedy under
Section 15 of the Black Money Act, 2015, by way of filing of an
appeal. The respondent asserted that the assessment order is a separate
matter from the initiation of prosecution and has no bearing on it. It
was argued that the Black Money Act does not require the completion
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of an assessment before filing prosecution under Sections 50 or 51.
15. Reliance was placed on P. Jayappan v. S.K. Perumal, AIR 1984 SC
1963, wherein it was inter alia held that ongoing assessment
proceedings do not bar the initiation of criminal proceedings for
offenses punishable under the law. It was also asserted that the
assessment was completed within the time limits set forth in the Black
Money Act, 2015, as detailed in paragraph 06 of the assessment order
dated 23.03.2020 for the assessment year 2017-18.
16. The deponent stated that evidence regarding the petitioner’s ownership
of foreign assets has been discussed in detail in the assessment order
for the year 2017-18. The deponent submitted that some evidence was
obtained during a search and seizure operation on 26.04.2016 at the
petitioner’s premises under Section 132 of the IT Act, 1961, and was
further corroborated through inquiries from Foreign Tax Authorities.
The deponent argued that the petitioner’s claims lack substance and
should be summarily dismissed.
B. SUBMISSIONS OF PETITIONER
17. Sh. Dayan Krishnan, learned senior counsel for the petitioner, argued
that the present complaint centers solely on the non-disclosure of
foreign assets, with allegations related to backdating documents and
efforts to disassociate the petitioner from these undisclosed assets. The
counsel contended that, at most, the allegations pertain to an offense
under Section 50 of the Black Money Act, as the alleged attempts relate
to the creation of a scheme to avoid disclosing foreign assets. He
argued that the specific act of failing to disclose assets in an income
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return falls under Section 50 of the Black Money Act, 2015, which
constitutes a separate offense for which a separate prosecution is
already pending against the petitioner.
18. Learned senior counsel for the petitioner has argued that failing to
disclose an asset in income tax returns does not constitute a willful
attempt to evade tax, and thus does not fall under Section 51 of the
Black Money Act, 2015. He contended that Section 51 requires a tax
assessment, rather than merely non-disclosure. Since a complaint under
Section 50 already exists, this separate prosecution should be quashed.
He also argued that the Income Tax Department cannot pursue
prosecution under Section 51 without first completing the tax
assessment under Section 10, followed by an unpaid demand under
Section 13 and declaring the assessee in default under Section 30(4).
Learned senior counsel highlighted that a notice under Section 10(1)
was issued on 22.09.2016, which the respondent replied to on
09.07.2019, confirming the petitioner’s assessment was still
incomplete. He pointed out that the complaint was filed on 22.12.2018,
prior to the assessment order issued on 23.02.2020. Reliance was
placed on Akhil Krishan Maggu v. Dy. Director, GST, 2019 SCC
OnLine P&H 7785.
19. Learned senior counsel also highlighted discrepancies between the
complaint and the assessment order dated 23.03.2020, claiming that
several alleged undisclosed properties in the complaint were omitted
from the assessment order. He argued that the assessment order itself
was time-barred and should be set aside, as there can be no tax evasion
without a valid assessment. He further argued that the alleged
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fabrication of documents amounts only to preparation, not an attempt to
willfully evade tax, and therefore, no offense under Section 51 is
established. Learned senior counsel submitted that the summoning
order lacked application of judicial mind, as the learned ACMM
initially mentioned a prima facie case under Section 50 but then took
cognizance under Section 51(1). He argued that the order was
mechanical and legally unsound. Lastly, it was asserted that the
petitioner’s statements during the search were obtained under coercion.
C. SUBMISSIONS OF RESPONDENT
20. Mr. Zoheb Hossain, Learned standing Counsel for the Income Tax
Department, argued that search conducted on 27.04.2016 revealed
undisclosed foreign bank accounts and properties, which the petitioner
had failed to declare in his returns despite being required to do so.
21. Learned standing Counsel further stated that searches at the premises of
CA Sanjeev Kapoor and advocates Anirudh Wadhwa and Abhinandan
Banerjee revealed a scheme involving backdating and fabricating
documents to show the petitioner as the sole trustee of the UAE-based
Alrahma Trust from 2006, thus portraying that foreign assets were held
in a fiduciary capacity rather than personal capacity. Allegedly, the sole
trusteeship was then transferred to Sumit Chadha in March 2015.
Learned counsel submitted that the details of the scheme have been
detailedthe complaint which werefurther substantiated by Sanjeev
Kapoor’s statement, which suggests that the restructuring of the trust
was prompted by a notice under Section 10(1) of the Black Money Act.
22. Learned standing Counsel for the respondent submitted that Criminal
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Complaint No. 2121 of 2019 was filed by the Income Tax Department
before the learned ACMM, Tis Hazari Court, for an offense under
Section 51 of the Black Money Act, and that the learned ACMM took
cognizance on 10.05.2019, citing a prima facie case. The learned
counsel argued that the court’s scope in reviewing the criminal
complaint is limited to determining if the allegations, when taken at
face value, make out a prima facie offense. Reliance has been placed
uponState of Haryana vs. Bhajan Lal, 1992 Supp 1 SCC 335 and
Nagawwa vs. V.S. Konjalgi, 1976 3 SCC 736, which established that
courts can quash complaints when the allegations do not constitute an
offense or are absurd or improbable, or if the Magistrate’s discretion
was exercised arbitrarily without proper basis.
23. Learned standing counsel further submitted that in the present case, the
Petitioner held undisclosed foreign assets which were never disclosed
in the Petitioner’s IT returns for multiple assessment years although he
was required to mandatorily do so. It has further been submitted that
the Petitioner did not disclose these foreign assets within the window
provided under Section 59 of the Black Money Act. It has further been
submitted that pursuant to the search and the notice under Section 10(1)
of the Black Money Act served upon the Petitioner he hatched a
scheme to back-date and fabricate documents in order to project
himself as holding the properties as a sole-trustee/in fiduciary capacity
and in order to project that sole trustee ship was transferred. Learned
Standing counsel further submitted that these allegations, taken at face
value, make out a prima-facie case of commission of the offence of
willful attempt to evade tax under Section 51 of the Black Money Act.
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24. Learned Standing counsel further submitted that Assessment and
Prosecution are independent proceedings. Reliance has been placed
upon P.Jayappan (Supra), Radheshyam Kejriwal v. State of W.B.,
(2011) 3 SCC 581and Sasi Enterprises v. ACIT (2014) 5 SCC 139. It
was submitted that the Section 51 of the Black Money Act makes an
“attempt” to willfully evade tax an offence. It was submitted that an
“attempt” to commit an act need not have consummated into the Act.
Reliance has been placed upon Koppula Venkat Rao v. State of A.P.,
(2004) 3 SCC 602. It was submitted that the attempt to commit an
offence begins when the accused commences to do an act with the
necessary intention. Reliance has been placed upon Chaitu Lal vs.
State of Uttarakhand (2019) 20 SCC 272 wherein the Apex
Courtdetermined that an attempt to commit an offense begins with the
accused’s intentional acts.
25. Learned Standing counsel further submitted that therefore whether or
not there has been actual evasion is irrelevant. If the Department
discovers the attempt before it is successfully carried out, he will be
liable for the offence whether the accused may not have successfully
evaded tax.Learned Standing counsel further submitted that in the facts
of the present case the accused had successfully evaded taxes by failing
to disclose its foreign assets in its IT Returns for Assessment Years
2012-13, 2013-14, 2014-15, 2015-16 and 2016-17.
26. Learned Standing counsel further submitted that Section 51 does not
require completion of assessment for initiation of prosecution under
that Section. Reference has also been made to Section 48 of the Black
Money Act, 2015.
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D. FINDINGS AND ANALYSIS
27. The petitioner in the present case has challenged the summoning order
and has sought quashing of the complaint.
28. In support of his contentions learned senior counsel for the petitioner
has relied upon Akhil Krishan Maggu (supra), wherein it was inter
alia held that the enunciation of law relating to arrest during
investigation reveals that the power of arrest should be resorted to in
exceptional circumstances and with full circumspection. It is pertinent
to mention that this case relates to GST. It was further inter alia held
that the prosecution of any person is directly linked with the
determination of tax evasion because if there is no tax evasion, there
cannot be criminal liability. I consider that this is respectfully
distinguished on the facts and circumstances of this case.
29. Learned senior counsel for the petitioner has also relied upon
Jayachandran Alloys vs. Superintendent of GST & C.Ex., 2019 SCC
OnLine Mad 39017. This case also relates to the CGST Act. In this
case, the court inter alia held that the power to punish set out in the
CGST Act would be triggered only once it is established that an
assessee has ‘committed’ an offence, which has to necessarily be post-
determination of the demand due from an assessee, following the
process of an assessment. This judgment is also distinguished on the
facts and circumstances of this case, as the procedures in the CGST Act
and the Black Money Act are entirely different.
30. Learned senior counsel for the petitioner has also relied upon
Makemytrip (India) Pvt. Ltd. vs. Union of India & Ors., 2016 SCC
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OnLine Del 4951, which was upheld in Union of India vs. Make My
Trip India Pvt. Ltd. (2019) 11 SCC 765. The reliance has been placed
on this to buttress the point that prosecution should normally be
launched only after the adjudication is complete. It is pertinent to
mention that this case relates to the Finance Act, 1994. This case
involved the power of the Directorate General of Central Excise
Intelligence (DGCEI) regarding the investigation and assessment of
service tax under the provisions of the Finance Act, 1994. This court
considers that this case is also respectfully distinguished on the facts
and circumstances of this case.
31. Learned senior counsel for the petitioner has also heavily relied upon
Birla Corporation Ltd. vs. Adventz Investments & Holdings Ltd.,
(2019) 16 SCC 10 to buttress the point that summoning an accused in a
criminal case is a serious matter and a summoning order should not be
passed mechanically without application of mind. The proposition held
in Birla Corporation Ltd. (supra) is no longer res integra. The court is
conscious of the fact that summoning an accused in a criminal case is a
serious matter and it should be resorted to only if there is credible
material on record and the magistrate is of the opinion that there are
sufficient grounds to proceed against the accused.
32. Before proceeding further it is necessary to examine the scope of
jurisdiction to be exercised by the Magistrate at the time of issuing the
summons. Section 204 Cr.P.C. provides as under:
“204. Issue of process.
(1) If in the opinion of a Magistrate taking cognizance of an
offence there is sufficient ground for proceeding, and the case
appears to be –
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(a) a summons case, he shall issue his summons for the attendance
of the accused, or
(b) a warrant case, he may issue a warrant, or, if he thinks fit, a
summons, for causing the accused to be brought or to appear at a
certain time before such Magistrate or (if he has no jurisdiction
himself) some other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused
under sub-section (1) until a list of the prosecution witnesses has
been filed.
(3) In a proceeding instituted upon a complaint made in writing,
every summons or warrant issued under sub-section (1) shall be
accompanied by a copy of such complaint.
(4)When by any law for the time being in force any process-fees or
other fees are payable, no process shall be issued until the fees are
paid and, if such fees are not paid within a reasonable time, the
Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions
of section 87.‖
33. In the Nagawwa vs. V.S. Konjalgi, 1976 3 SCC 736, it was inter alia
held as under:
―The scope of the inquiry under Section 202 of the Code of
Criminal Procedure is extremely limited – limited only to the
ascertainment of the truth or falsehood of the allegations
made in the complaint(i) on the materials placed by the
complainant before the court (i) for the limited purpose of
finding out whether a prima facie case for issue of process
has been made out; and (iii) for deciding the question
purely from the point of view of the f the complainant
without at all adverting to any defence that the accused may
have. It is not the province of the magistrate to enter into a
detailed discussion of the merits or demerits of the case nor
can the High Court go into this matter in its revisional
jurisdiction which is a very limited one. In proceedings
under Section 202 the accused bas got absolutely no locus
standi and is not entitled to be heard on the question
whether the process should be issued against him or not.
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However, the magistrate in such proceedings can take into
consideration inherent improbabilities appearing on the
face of the complaint or in the evidence led by the
complainant in support of the allegations but there appears
to be a very thin line of demarcation between a probability
of conviction of the accused and establishment of a prima
facie case against him. The magistrate has been given an
un- doubted discretion in the matter and the discretion has
to be judicially exercised by him. Once the magistrate has
exercised his discretion it is not for the High Court, or even
the Supreme Court, to substitute its own discretion for that
of the magistrate or to examine the case on merits with a
view to find out whether or not the allegations in the
complaint, if proved, would ultimately end in conviction of
the accused. (Para 5)
In the following cases an order of the magistrate issuing
process against the accused can be quashed or set aside:
(1) where the allegations made in the complaint or the
statements of the witnesses recorded in support of the same
taken at their face value make out absolutely no case
against the accused or the complaint does not disclose the
essential ingredients of an offence which is alleged against
the accused:
(2) where the allegations made in the complaint are patently
absurd and inherently improbable so that no prudent person
can ever reach a conclusion that there is sufficient ground
for proceeding against the accused;
(3) where the discretion exercised by the magistrate in
issuing process is capricious and arbitrary having been
based either on no evidence or on materials which are
wholly irrelevant or inadmissible; and(4) where the complaint suffers from fundamental legal
defects, such as, want of sanction or absence of complaint
by legally competent authority and the like.‖CRL.M.C. 805/2020 Page 20 of 33
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Reliance can also be placed upon Chandra Deo Singh v. Prakash
Chandra Bose, (1964) 1 SCR 619: AIR 1963 SC 1430 : (1963) 2 CriLJ
397 and Vadilal Panchal v. Dattatraya Dulaji Ghadigaonker, (1961) 1
SCR 1113: 1960 CriLJ 1490
34. In State of Haryana vs. Bhajan Lal, 1992 Supp (1) SCC 325 the scope
of jurisdiction to be exercised by the High Court in respect of quashing
of the complaint/FIR was discussed in detail. The Supreme Court after
discussing plethora of judgments on inter alia held as under:
―102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of
the principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under Section 482
of the Code which we have extracted and reproduced above,
we give the following categories of cases by way of
illustration wherein such power could be exercised either to
prevent abuse of the process of any court or otherwise to
secure the ends of justice, though it may not be possible to
lay down any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid formulae and
to give an exhaustive list of myriad kinds of cases wherein
such power should be exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their face
value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the
accused.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation by
police officers under Section 156(1) of the Code except
under an order of a Magistrate within the purview of
Section 155(2) of the Code.
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(3) Where the uncontroverted allegations made in the FIR
or complaint and the evidence collected in support of the
same do not disclose the commission of any offence and
make out a case against the accused(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code(5) Where the allegations made in the FIR or complaint are
so absurd and inherently improbable on the basis of which
no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the institution
and continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifesty attended with
mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and
personal grudge.
103. We also give a note of caution to the effect that the
power of quashing a criminal proceeding should be
exercised very sparingly and with circumspection and that
too in the rarest of rare cases; that the court will not be
justified in embarking upon an enquiry as to the reliability
or genuineness or otherwise of the allegations made in the
FIR or the complaint and that the extraordinary or inherent
powers do not confer an arbitrary jurisdiction on the court
to act according to its whim or caprice.‖
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35. Learned senior counsel for the petitioner has argued vehemently that
the present complaint could not have been filed before completion of
the assessment. It is not disputed that at the time when the complaint
was filed, the assessment was not completed. The assessment was
completed later on only on 23.03.2020. The respondent department has
submitted that the assessment and prosecution are independent of each
other. In P.Jayappan vs. S.K.Perumal (supra) it was inter alia held that
there is no provision in law which provides that a prosecution for the
offences in question cannot be launched until reassessment proceedings
initiated against the assessee are completed. It is pertinent to mention
here that this was a case under the income tax Act. Similarly, the
department has placed reliance on Radheshyam Kejriwal v. State of
W.B., (2011) 3 SCC 581 and Sasi Enterprises v. ACIT Crl.A. No. 61
of 2007 dated 30.01.2014.
36. It is pertinent to mention here that Section 48 of the Black Money Act
provides as under:
Section 48. Chapter not in derogation of any other law or
any other provision of this Act.
(1) The provisions of this Chapter shall be in addition to,
and not in derogation of, the provisions of any other law
providing for prosecution for offences there under.
(2) The provisions of this Chapter shall be independent of
any order under this Act that may be made, or has not been
made, on any person and it shall be no defence that the
order has not been made on account of time limitation or
for any other reason.
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37. The bare perusal of Section 48 of the Black Money Act makes it clear
that the offences and prosecution which falls in Chapter V of the Black
Money Act are independent of any order made under this Act. It is
relevant to note that the assessment under the Black Money Act is
being made under Section 10, which falls in Chapter III of the Act.
Therefore, this submission of the petitioner does not hold any force in
the eyes of the law. The initiation of the prosecution is not dependent
on the completion of assessment, if the conditions as required under
Section 51 Black Money Act are fulfilled.
38. The petitioner has also argued in detail that since the complaint under
Section 50 had already been filed, there was no occasion of filing the
complaint under Section 51 of the Black Money Act. Sections 50 and
51 of the Black Money Act came up before the Supreme Court in
Union of India vs. Gautam Khaitan, (2019) 10 SCC 108 wherein it
was inter alia held as under:
“16. The offences in respect of which sanction has been
granted are under Sections 50 and 51 of the Black Money
Act, which read thus:
―50. Punishment for failure to furnish in return of
income, any information about an asset (including
financial interest in any entity) located outside India.–
If any person, being a resident other than not ordinarily
resident in India within the meaning of clause (6) of
Section 6 of the Income Tax Act, who has furnished the
return of income for any previous year under sub-section
(1) or sub-section (4) or sub-section (5) of Section 139 of
that Act, wilfully fails to furnish in such return any
information relating to an asset (including financial
interest in any entity) located outside India, held by him,CRL.M.C. 805/2020 Page 24 of 33
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as a beneficial owner or otherwise or in which he was a
beneficiary, at any time during such previous year, or
disclose any income from a source outside India, he shall
be punishable with rigorous imprisonment for a term
which shall not be less than six months but which may
extend to seven years and with fine.
51. Punishment for wilful attempt to evade tax.–(1) If a
person, being a resident other than not ordinarily
resident in India within the meaning of clause (6) of
Section 6 of the Income Tax Act, wilfully attempts in any
manner whatsoever to evade any tax, penalty or interest
chargeable or imposable under this Act, he shall be
punishable with rigorous imprisonment for a term which
shall not be less than three years but which may extend to
ten years and with fine.
(2) If a person wilfully attempts in any manner
whatsoever to evade the payment of any tax, penalty or
interest under this Act, he shall, without prejudice to any
penalty that may be imposable on him under any other
provision of this Act, be punishable with rigorous
imprisonment for a term which shall not be less than
three months but which may extend to three years and
shall, in the discretion of the court, also be liable to fine.
(3) For the purposes of this section, a wilful attempt to
evade any tax, penalty or interest chargeable or
imposable under this Act or the payment thereof shall
include a case where any person–
(i) has in his possession or control any books of account
or other documents (being books of account or other
documents relevant to any proceeding under this Act)
containing a false entry or statement; or
(ii) makes or causes to be made any false entry or
statement in such books of account or other documents;
or
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(iii) wilfully omits or causes to be omitted any relevant
entry or statement in such books of account or other
documents; or
(iv) causes any other circumstance to exist which will
have the effect of enabling such person to evade any tax,
penalty or interest chargeable or imposable under this
Act or the payment thereof.‖
17. Section 50 provides that if any person, being a resident
other than not ordinarily resident in India, who has
furnished the return of income for any previous year under
sub-section (1) or sub-section (4) or sub-section (5) of
Section 139 of the Income Tax Act, wilfully fails to furnish
in such return any information relating to an asset
(including financial interest in any entity) located outside
India, held by a beneficial owner or otherwise or in which
he was a beneficiary, at any time during such previous year,
or disclose any income from a source outside India, he shall
be punishable with rigorous imprisonment for a term which
shall not be less than six months but which may extend to
seven years and with fine.
18. The penalty of the offences under Section 51 is for wilful
attempt in any manner whatsoever to evade the payment of
any tax, penalty or interest chargeable or imposable under
the Income Tax Act. The punishment provided under sub-
section (1) is for rigorous imprisonment for a term which
shall not be less than three years but which may extend to
ten years and with fine. In respect to any other person not
covered by sub-section (1) of Section 51, the punishment
provided is rigorous imprisonment for a term which shall
not be less than three months but which may extend to three
years and shall, in the discretion of the court, also be liable
to fine.
19. It could therefore be seen, that the scheme of the Black
Money Act is to provide stringent measures for curbing the
menace of black money. Various offences have been defined
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and stringent punishments have also been provided.
However, the scheme of the Black Money Act also provided
one time opportunity to make a declaration in respect of any
undisclosed asset located outside India and acquired from
income chargeable to tax under the Income Tax Act. Section
59 of the Black Money Act provided that such a declaration
was to be made on or after the date of commencement of the
Black Money Act, but on or before a date notified by the
Central Government in the Official Gazette. The date so
notified for making a declaration is 30-9-2015 whereas, the
date for payment of tax and penalty was notified to be 31-
12-2015. As such, an anomalous situation was arising if the
date under sub-section (3) of Section 1 of the Black Money
Act was to be retained as 1-4-2016, then the period for
making a declaration would have been lapsed by 30-9-2015
and the date for payment of tax and penalty would have also
been lapsed by 31-12-2015. However, in view of the date
originally prescribed by sub-section (3) of Section 1 of the
Black Money Act, such a declaration could have been made
only after 1-4-2016. Therefore, in order to give the benefit
to the assessee(s) and to remove the anomalies the date 1-7-
2015 has been substituted in sub-section (3) of Section 1 of
the Black Money Act, in place of 1-4-2016. This is done, so
as to enable the assessee desiring to take benefit of Section
59 of the Black Money Act. By doing so, the assessees, who
desired to take the benefit of one time opportunity, could
have made declaration prior to 30-9-2015 and paid the tax
and penalty prior to 31-12-2015.‖
39. Thus Section 50 of Black Money Act provides punishment for failure
to furnish in return of income, any information about an asset
(including financial interest in any entity) located outside India,
whereas Section 51 of Black Money Act provide punishment for
willful attempt to evade tax. Besides this, the bare perusal of Sections
50 and 51 makes it clear that both the provisions function in different
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realms. The non-disclosure of an information about an asset (including
financial interest in any entity) located outside India is to be dealt with
differently than the willful attempt to evade tax. It is also pertinent to
mention here that Section 51 Sub-section (3) of the Black Money Act
defines willful attempt, which reads as under:
(3) For the purposes of this section, a wilful attempt to
evade any tax, penalty or interest chargeable or imposable
under this Act or the payment thereof shall include a case
where any person–
(i) has in his possession or control any books of account or
other documents(being books of account or other documents
relevant to any proceeding under this Act) containing a false
entry or statement; or
(ii) makes or causes to be made any false entry or statement
in such books of account or other documents; or
(iii) wilfuly omits or causes to be omitted any relevant entry
or statement in such books of account or other documents; or
(iv) causes any other circumstance to exist which will have
the effect of enabling such person to evade any tax, penalty
or interest chargeable or imposable under this Act or the
payment thereof.
40. Therefore Section 51 of Black Money Act would come into play if
even before filing of a return of income, the person is found to have
done any of the acts as prescribed in Section 51(3) of Black Money
Act, 2015. Apparently the prosecution under this provision cannot be
dependent on the assessment. As the offence, if proved, stands
completed as soon as the conditions as required under Section 51(3) of
Black Money Act, 2015 are fulfilled, irrespective of return of income.
41. In this regard, it is relevant to note that on 27.04.2016, a search and
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seizure operation was carried out at the premises of the petitioner at B-
217, Greater Kailash, Part-I, New Delhi, which revealed that the
accused/petitioner generated and held undisclosed foreign income and
assets as defined under Section 2(12) of the Black Money Act. The
petitioner allegedly made a statement under Section 131(1A) on
29.04.2016. During the course of the search action at his office at 12A,
Panchsheel Enclave, New Delhi, he admitted to the undisclosed nature
of the foreign assets/entities. It is also a matter of record that in reply to
the notice under Section 10(1) of the Black Money Act dated
22.09.2016 and 10.10.2016, by letter dated 03.11.2016, the petitioner
stated that he does not own and is not the beneficial owner of any
foreign assets, whether in the form of bank accounts or foreign
immovable property.
42. The case of the complainant/Income-Tax Department is that the
petitioner stated that his association with certain foreign assets was
only in the past and that too in the capacity of a trustee, and that he had
resigned from all such fiduciary positions in relation to such foreign
assets prior to April 2015. It is pertinent to mention that the Black
Money Act came into force on 01.07.2015. Additionally, the case of
the complainant is that on 07.02.2017, a search was conducted against
one Sanjeev Kapur, who was the Chartered Accountant of the
petitioner. During the course of the search, it was discovered that the
petitioner had attempted to fabricate and back-date documents to show
that the foreign assets/offshore entities were held by the petitioner not
in his individual capacity but in a fiduciary capacity as a trustee of the
Alrahma Trust, purportedly settled in the UAE in 2006 by one Mr.
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Hussain Darwish Saleh Alrahma. The documents were also made to
show that the petitioner had transferred the sole trusteeship to one Mr.
Sumit Chadha in March 2015.
43. It is also pertinent to mention that as per complainant Mr. Sanjeev
Kapur stated that the petitioner met him in June-July 2016 along with
the petitioner’s legal team, and it was decided that a trust structure of
the nature described above would be set up, wherein the accused would
be appointed as the sole trustee. Thereafter, Alrahma Trust was
acquired in Dubai, UAE, and the accused was appointed as the sole
trustee, effective from February 2006. Subsequently, it was decided
that the accused would resign as the sole trustee effective from March
2015. The complainant alleges that the creation of the Alrahma Trust
and changes in the structure of the trust were part of a premeditated
scheme to dissociate the accused/petitioner from all his offshore
entities/foreign assets by back-dating documents to evade the
proceedings under the Black Money Act.
44. At this stage, the complainant is not required to bring the material on
record that could prove the guilt of the accused or even be sufficient for
framing the charge. This is a very initial stage where the Magistrate has
to form an opinion that there are sufficient grounds for issuing the
process. Such an opinion is to be formed based on the entire material
on record. The objections of the petitioner regarding the assessment are
not relevant, and the petitioner is required to seek the appropriate
remedies to challenge the assessment order. In regard to the evidence to
show that the petitioner owned foreign assets, the complainant shall be
obliged to produce the same at an appropriate time. It is relevant to
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note that during the course of submissions, learned counsel for the
respondent submitted that the petitioner prepared fabricated/back-dated
documents to show him holding his foreign assets as a trustee of the
Alrahma Trust effective from February 2006 and having resigned as
trustee from March 2015. Furthermore, several documents, which form
part of the scheme, including trust deeds, resignation letters, and
correspondences, were signed by the accused/petitioner and his aides.It
was submitted that this constitutes an overt act on the part ofthe
Petitioner towards the commission of the offence. In this regard
reliance was placed on Abhayanand Mishra v. State of Bihar, (1962)
2 SCR 241, wherein it was held as under:
“24. We may summarise our views about the construction of
Section 511 IPC, thus: A person commits the offence of
attempt to commit a particular offence when (i) he intends
to commit that particular offence; and (ii) he, having made
preparations and with the intention to commit the offence,
does an act towards its commission; such an act need not be
the penultimate act towards the commission of that offence
but must be an act during the course of committing that
offence.”
45. Reliance was also placed on Malkiat Singh v. State of Punjab, (1969)
1 SCC 157 wherein it was held as under:
“7. The test for determining whether the act of the
appellants constituted an attempt or preparation is whether
the overt acts already done are such that if the offender
changes his mind and does not proceed further in its
progress, the acts already done would be completely
harmless.”
46. Reliance was also placed on Koppula Venkat Rao v. State of
A.P.,(2004) 3 SCC 602 wherein it was held as under:
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“10. An attempt to commit an offence is an act, or a series of
acts, which leads inevitably to the commission of the
offence, unless something, which the doer of the act neither
foresaw nor intended, happens to prevent this. An attempt
may be described to be an act done in part-execution of a
criminal design, amounting to more than mere preparation,
but falling short of actual consummation, and, possessing,
except for failure to consummate, all the elements of the
substantive crime. In other words, an attempt consists in it
the intent to commit a crime, falling short
consummation/completion.‖
47. It is also relevant to note that the case of the complainant is that in his
reply to the notice under Section 10 of the Black Money Act dated
03.11.2016, the petitioner stated that the foreign assets were held by
him the capacity of a trustee. It has been contended that this statement
could be substantiated only by means of the fabricated/back dated
documents. It has been submitted that petitioner has done everything
which he could do to evade tax. However, the conspiracy unearthed as
a result of the discovery made pursuant to the search conducted on
07.02.2017 at the premises of Mr.Sanjeev Kapur. It is also pertinent to
mention here that whether act of the petitioner amounts to preparation
or attempt is a matter of trial. Learned senior counsel has also pointed
out that there is wrong mentioning of the provisions in the summoning
order. However, I consider that only on this ground, the summoning
order cannot be set aside as the court has to see the entire record as a
whole some and not in piece-mail.
48. The petitioner had also moved an application for amendment of the
present petition to challenge the assessment order dated 23.03.2020. I
consider that has no substance as the petitioner has an efficacious
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statutory remedy against the assessment order dated 23.02.2020 by way
of filing an appeal under Section 16 of the Black Money Act.
49. It is a settled proposition that if there is an adequate efficacious
alternative remedy is available and the jurisdiction of the High Court
has been invoked without availing the same, except in the exceptional
cases, such a writ petition is not required to be entertained. Reference
can be made in Genpack India Pvt. Ltd. vs. Deputy Commissioner of
Income Tax and Anr. 2019 SCC OnLine SC 1500.
50. Finally, the respondent department has also pointed out towards the
conduct of the petitioner. It has been pointed out that the petitioner’s
affidavit has not been property attested and even he has not disclosed
his the address at United Kingdom. It has also been alleged that the
petitioner is evading the process of law. The party who approaches the
Court must come with clean hands. The Petitioner in the present case as
alleged has not disclosed his United Kingdom address. The petitioner is
thus has not approached the Court with clean hand. In view of the
discussions made herein above, the Court is of the considered view that
the petition is liable to be dismissed.
51. In view of the above, the present petition along with pending
application stands dismissed.
DINESH KUMAR SHARMA, J
November 8, 2024
Pallavi/Rb/NA..
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