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

Last Updated: 21 July 2016
Article by Vijay Pal Dalmia, Partner

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:

"we are of the view that the pendency of the reassessment proceedings cannot act as a bar to the institution of the criminal prosecution for offences punishable Under Section 276C or Section 277 of the Act".

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):

"It may be that in an appropriate case, the criminal court may adjourn or postpone the hearing of a criminal case in exercise of its discretionary power under Section 309 of the Code of Criminal Procedure if the disposal of any proceeding under the Act which has a bearing on the proceedings before it is imminent so that it may take also into consideration the order to be passed therein. Even here, the discretion should be exercised judicially and in such a way as not to frustrate the object of the criminal proceedings. There is no rigid rule which makes it necessary for a criminal court to adjourn or postpone the hearing of a case before it indefinitely or for an unduly long period only because some proceeding which may have some bearing on it is pending elsewhere."

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,

"In this case it is not claimed that the Commissioner has not initiated the proceedings for instituting the complaints".

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.

© 2016, Vaish Associates Advocates,
All rights reserved
Advocates, 1st & 11th Floors, Mohan Dev Building 13, Tolstoy Marg New Delhi-110001 (India).

The content of this article is intended to provide a general guide to the subject matter. Specialist professional advice should be sought about your specific circumstances. The views expressed in this article are solely of the authors of this article.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Vijay Pal Dalmia, Partner
Similar Articles
Relevancy Powered by MondaqAI
Singh & Associates
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Singh & Associates
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions