India: Black Money - Foreign Bank Accounts & Criminal Prosecutions Under The (Indian) Income Tax Act

Article by Vijay Pal Dalmia, Advocate, Supreme Court of India and Delhi High Court, Partner & Head of Intellectual Property Laws Division, Vaish Associates Advocates, India

Hot!, is the word that can describe the current relationship of the Government of India, Income Tax Authorities, and those who have made disclosure of Foreign Bank accounts under The Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 ("Black Money Act") (http://www.indiacode.nic.in/acts-in-pdf/2015/201522.pdf) , and those who have failed to disclose their foreign bank accounts, income and assets, and information of which for one reason or the other, has come to the knowledge of the Income Tax Authorities. The knowledge of the Government of India might be based on various sources like Panama Papers (https://panamapapers.icij.org/), HSBC offshore leaks (https://offshoreleaks.icij.org/) or information procured by the Government of India under the Exchange of Information clause of Double Taxation Avoidance Agreement(s) (DTAA) with different countries (http://www.incometaxindia.gov.in/Pages/international-taxation/dtaa.aspx). An opportunity was given by the Government of India for disclosure of the black money, foreign income and assets under the Black Money Act, but this opportunity came with a rider, i.e., the information of such bank accounts, foreign assets or income shall not be within the prior knowledge of the Government of India as provided under Section 71(d)(iii) of the Black Money Act (http://www.indiacode.nic.in/acts-in-pdf/2015/201522.pdf).

It is pertinent to note that the offence under offence of willful attempt to evade tax, penalty or interest as provided under Section 51 of the Black Money Act falls under the Scheduled Offences (Part C point 4 of the Schedule) as defined under the Prevention of Money-Laundering Act, 2002, (http://dor.gov.in/preventionmoney) thereby attracting the stringent provisions of the Prevention of Money-Laundering Act, 2002. To understand the implications and effect of the Money Laundering Act, please refer to the article of the author at http://www.mondaq.com/article.asp?articleid=486956.

The Black Money Act, through Section 67, provided an immunity to the Declarant, thereby making the declaration under section 59 of the Black Money Act inadmissible in evidence, except for the purpose of any proceeding relating to imposition of penalty other than the penalty leviable under section 61 of the Black Money Act, or for the purposes of prosecution under the Income-tax Act or the Wealth-tax Act, 1957 or the Foreign Exchange Management Act, 1999 or the Companies Act, 2013 or the Customs Act, 1962, and further by a Press Release dated 20th March, 2015 (http://pib.nic.in/newsite/PrintRelease.aspx?relid=117477), it was clarified that such persons making declaration, will not be prosecuted under the stringent provisions of the Black Money Act. Further, under Section 71 (d) (iii), above immunity shall not be available where any information has been received by the Competent Authority under an Agreement entered into by the Central Government under the Exchange of Information clause of Double Taxation Avoidance Agreement(s) (DTAA) with different countries. So, here is the catch, i.e., if the Competent Authority had the information of foreign income and assets, prior to the filing of the declaration under the Black Money Act, the immunity under the Black Money Act will not be available with respect to such foreign income and assets.

Vide Circular No.13 of 2015, issued by the Ministry of Finance Department of Revenue, CBDT (TPI Division) dated 6th July, 2015, it has been stated that if the declaration of Undisclosed foreign income and assets has been made in good faith under the One Time Compliance Scheme (http://www.incometaxindia.gov.in/communications/circular/circular_12_2015.pdf) of the Black Money Act, but not found eligible due to the reasons that the Government has prior information under DTAA, then such Declarant will not be prosecuted under the provisions of the Black Money Act. However, this immunity will not be extended to the prosecution under the Income Tax Act. It is interesting to note that the declaration made bonafidely under the One Time Compliance Scheme will not be used as evidence for prosecution under the Income Tax Act (http://www.incometaxindia.gov.in/pages/acts/income-tax-act.aspx), but this information received under the DTAA can be used for prosecution under the Income Tax Act, if the Government has prior information under DTAA.

Presently, the Income Tax Department is on the prosecution spree by filing complaints under section 276C (http://incometaxindia.gov.in/_layouts/15/dit/pages/viewer.aspx?grp=act&cname=cmsid&cval=102120000000036861&k=&isdlg=1) against those who have willfully failed to disclose Foreign Assets and Foreign Bank Accounts, in order to evade any tax, penalty or interest chargeable or imposable under the Income Tax Act 1961. These prosecutions are not launched under the Black Money Act because of the immunity granted to the Declarants under the said Act, however, as explained above, this immunity is not extendable to the prosecutions under the Income Tax Act. Section 276C provided that for the evasion of tax on under reported income, which exceeds Rs.25,00,000/-, the offence is punishable with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven (7) years with fine, and for all other cases the rigorous imprisonment shall not be less than three months but which may extend to two (2) years and with fine.

There is another dimensions to the above prosecution, as Section 277 of the Income Tax Act and Section 181 of the Indian Penal Code, 1860 (IPC) (https://indiankanoon.org/doc/852002/ ) are also attracted. Section 277 states that when a person makes a statement under this Act or delivers an account or statement, which is false, and which he either knows or believes to be false, or does not believe to be true, rendering such person punishable with rigorous imprisonment for a period up to seven years with fine or two years with fine, depending upon the amount, which the person making the statement would have been evaded if the statement or account had been accepted as true. Similarly, under Section 181 of the IPC, the offence of false statement on oath or affirmation to public servant or person authorized to administer an oath or affirmation, any statement which is false, and which he either knows or believes to be false or does not believe to be true, is punishable with imprisonment for a term which may extend to three years and fine. Accordingly, the Income Tax Department may launch prosecution under Section 276C and Section 277 of the Income Tax Act read with Section 181 of the IPC, until and unless other Sections relating to various other offences are also attracted.

To understand various offences and criminal prosecutions under the Income Tax, please refer to another article written by the author at http://www.mondaq.com/india/x/373388/Income+Tax/Offences+and+Prosecutions+Under+Chapter+XXII+of+the+Indian+IncomeTax+Act+1961.

The process of criminal trial in India can be understood by clicking at the following link at http://documents.lexology.com/b3e42a02-9eb5-4854-b250-3362a79d73f5.pdf#page=2 .

Remedies

Once a prosecution has been launched by the Income Tax Authorities then one of the option is approaching the concerned Authority under the Section 279(2) of the Income Tax Act (http://incometaxindia.gov.in/_layouts/15/dit/pages/viewer.aspx?grp=act&cname=cmsid&cval=102120000000036877&k=&isdlg=1) for compounding of the offences. However, the discretion of compounding the offences under Section 276C and Section 277 solely lies with the appropriate Income Tax Authorities. Under Section 279(2) of the Income Tax Act, compounding of offences relating to black money can only be initiated after the launch of the prosecution. The catch under this Section is that compounding of offences cannot be claimed as a matter of right.

Prior to the launch of the prosecution for commission of the above offences under the Income Tax Act, an option is available with the assessee to approach the Settlement Commission under Section 245C of the Income Tax Act (http://www.incometaxindia.gov.in/_layouts/15/dit/pages/viewer.aspx?grp=act&cname=cmsid&cval=102120000000036738&opt=&isdlg=1) by making a full and true disclosure, which has not been disclosed before the Assessing Officer, the manner in which such income has been derived, the additional amount of income tax payable on such income. Under Section 245H of the Income Tax Act (http://www.incometaxindia.gov.in/_layouts/15/dit/pages/viewer.aspx?grp=act&cname=cmsid&cval=102120000000036744&opt=&isdlg=1) the Settlement Commission has the power to grant immunity from prosecution and penalty under the Income Tax Act. However, this remedy of approaching the Settlement Commission is not available, where the prosecution for any such offence has been initiated before the filing of the application under Section 245C of the Income Tax Act (First Proviso to Section 245H of the Income Tax Act).

Now, here a problematic situation for the assessee would arise, where a prosecution has been launched before initiation of any proceeding for assessment or reassessment under Section 147 of the Income Tax Act (http://www.incometaxindia.gov.in/_layouts/15/dit/pages/viewer.aspx?grp=act&cname=cmsid&cval=102120000000036605&opt=&isdlg=1), which is subject to the provisions of Sections 148 to 153 of the Income Tax Act, is initiated with respect to the income which has escaped assessment. Under Section 148 of the Income Tax Act (http://www.incometaxindia.gov.in/_layouts/15/dit/pages/viewer.aspx?grp=act&cname=cmsid&cval=102120000000036606&opt=&isdlg=1), the Assessing Officer, before making the assessment, reassessment or re-computation, is obliged to serve on the assessee a notice.

Here arises an anomaly. As per the scheme of the Income Tax Act, an assessee can approach the Settlement Commission at any stage, before a prosecution is launched and seek immunity from prosecution, and subsequent to prosecution, the assessee can approach the appropriate authority under the Income Tax Act for compounding. Here, the moot question is whether a prosecution be launched without initiation of the assessment, reassessment or recomputation, provided under Section 147 of the Income Tax Act and following the procedure as laid down under Sections 148 to 153 of the Income Tax Act. Under Section 276C(1), if a person willfully in any manner, whatsoever evades any tax, penalty or interest chargeable or imposable under the Income Tax Act, he shall be punishable under this provision. Accordingly, it becomes important to determine whether any tax, penalty or interest is chargeable or imposable under the Income Tax Act, at all or not, and this can only be determined by the Assessing Officer under Section 147 of the Income Tax Act, when the Assessing Officer has REASON TO BELIEVE that:

• any income chargeable to tax has escaped assessment for any assessment year,
• he may subject to the provisions of Sections 148 to 153 of the Income Tax Act,
• assess or reassess
• such income, and
• also any other income chargeable to tax
  
  
  • which has escaped assessment and
  • which comes to his notice subsequently in the course of the proceedings under this Section.

In view of the above, it is pertinent to evaluate whether the prosecution under Section 276C, shall be launched:

1. before the initiation of assessment proceedings under Section 147 by a notice to the assessee under Section 148 of the Income Tax Act,
2. after initiation and during the course of assessment, reassessment or recomputation any tax, penalty or interest chargeable or imposable under the I.T, but before completion of the proceedings;
3. after completion of proceedings for assessment, reassessment or recomputation any tax, penalty or interest chargeable or imposable under the I.T.

This issue, except the scenario of launch of prosecution before the initiation of assessment proceedings under Section 147 by a notice to the assessee under Section 148 of the Income Tax Act, has been dealt with and settled by the Supreme Court of India and various High Courts. The Courts have held that the prosecution can be initiated during the course of proceedings for assessment, reassessment or recomputation of any tax and it is not necessary that such assessment proceedings or any appeal with respect to such proceedings have to be finally adjudicated. However, the issue of the launch of prosecution under Section 276C of the Income Tax Act in the absence of any proceedings under Section 147/148 of the Income Tax Act, appears to be unanswered and still remains open. In the opinion of the author, it is imperative that before launching any prosecution under Section 276C of the Income Tax Act, proceedings for assessment, reassessment or re-computation of tax, which has escaped assessment, must be initiated.

In the case of P. Jayappan vs. S.K. Perumal (http://judis.nic.in/supremecourt/imgs1.aspx?filename=9493), the Supreme Court of India while observing 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 under the Income Tax Act, are completed, held as under:

In the case of Radheshyam Kejriwal vs. State of West Bengal and Anr., (http://judis.nic.in/supremecourt/imgs1.aspx?filename=37573), the Supreme Court while referring to the earlier judgments of the Supreme Court with respect to the adjudication proceeding and criminal proceeding under various statutes, including Income Tax Act, culled out following principles.:

1. Adjudication proceeding and criminal prosecution can be launched simultaneously;
2. Decision in adjudication proceeding is not necessary before initiating criminal prosecution;
3. Adjudication proceeding and criminal proceeding are independent in nature to each other;
4. The finding against the person facing prosecution in the adjudication proceeding is not binding on the proceeding for criminal prosecution;
5. Adjudication proceeding by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;
6. The finding in the adjudication proceeding in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceeding is on technical ground and not on merit, prosecution may continue; and
7. In case of exoneration, however, on merits where allegation is found to be not sustainable at all and person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue underlying principle being the higher standard of proof in criminal cases."

In the case of Gopal Lal Dhamani vs. Income Tax Officer, (https://indiankanoon.org/doc/77639/) the Rajasthan High Court while dealing with the question of law that whether for filing a complaint under Section 276C of the Income Tax Act, it is necessary that there should be a regular assessment under the Income Tax Act, against the assesse, held that in a few cases, where regular assessment orders have been made, the court perhaps may have to take note of them. Similarly, where assessment orders have been made or likely to be made at any future dates are modified or set aside by the appellate court, the criminal court may have to take note of them. Further, it may be that if a proper application is made before the learned trial court bringing circumstances therein and a request is made to stay further proceedings of the complaints till the assessment orders in the remaining cases are made or the appeals are decided, the criminal court is bound to take them into consideration and pass necessary orders accordance with the law. Even in the case of P. Jayappan [1954] 149 ITR 696 it is observed (p. 702):

In all the above mentioned cases one thing is common, i.e. that the adjudication proceedings in one form or the other were pending for assessment, however, a question remains open, i.e., what will happen in a case where no adjudication proceeding is pending.

Even in the case of Jayapan, the Hon'ble Supreme Court was aware of this issue when an observation was made in the said judgement that,

Accordingly, in the opinion of the author of this article, a different treatment has to be given by the Court in the cases where no adjudication proceedings have been initiated.

Further, the Hon'ble Supreme Court in the case of Commissioner of Income Tax vs. Bhupen Champak Lal Dalal & Anr. Etc. (http://judis.nic.in/supremecourt/imgs1.aspx?filename=17624), has held that if the result of adjudication proceedings has direct bearing on the criminal cases, the criminal proceedings should be stayed.

The Calcutta High Court in the writ petition no. 11283 (W) of 2015, titled as Bishwanath Garodia vs. The Principal Commissioner of Income Tax (Central), Kolkata & Ors, relied on the Supreme Court judgment in Commissioner of Income-tax vs. Bhupen Champak Lal Dalal, and held that no steps, in respect of criminal proceedings pending under Section 276C of the Income Tax Act before the trial Court, be taken till the appeal pending before the Income Tax Commissioner (Appeals) is disposed of.

* The author is a senior litigator with 30 years of experience in court trials and deals with cases relating to prosecution under the Income Tax Act, 1961, The Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015, Money Laundering Act, economic offences and white collar crimes.

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