Delhi High Court
Anurag Dalmia vs Income Tax Office on 21 July, 2025
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
* IN THE HIGH COURT OFDELHI AT NEW DELHI
% Reserved on:07thApril, 2025
Pronounced on: 21st July,2025
+ CRL.M.C. 1575/2018 & CRL.M.A. 5713/2018
ANURAG DALMIA .....Petitioner
Through: Mr. Manish Kumar Singh and
Ms. Nusrat Hossain, Advocates.
versus
INCOME TAX OFFICE .....Respondent
Through: Mr. Shlok Chandra, Sr.SC with
Ms. Naincy Jain and Ms. Madhavi
Shukla, Jr. SCs.
+ CRL.M.C. 1576/2018 & CRL.M.A. 5716/2018
ANURAG DALMIA ....Petitioner
Through: Mr. Manish Kumar Singh and
Ms. Nusrat Hossain, Advocates.
versus
INCOME TAX OFFICE ....Respondent
Through: Mr. Shlok Chandra, Sr.SC with
Ms. Naincy Jain and Ms. Madhavi
Shukla, Jr. SCs.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
1. These two petitions have been filed under Section 482 and Section
483 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the
“Cr.P.C“), read with Article 227 of the Constitution of India, seeking
quashing of the Criminal Complaints No. 536622/2016 (old Complaint
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Case No. 177/4/16) and Complaint No. 517460/2016 (old Complaint Case
No. 179/4/16), initiated against the Petitioner under Sections 276C(1)(i), 276
(D) and 277(1) Income Tax Act, before the Court of the ACMM, Delhi.
2. The main ground for seeking quashing is that the Assessment Order
dated 23.03.2015 which was the very foundation of the Criminal
Complaints, has been set aside in Appeal by the Income Tax Appellate
Tribunal (ITAT) and nothing survives for prosecution of the Complaints.
3. Briefly stated, Petitioner filed his original Income Tax Return for the
year 2006-07 and 2007-08, by declaring his total income for the said years.
The original Income Tax Return for the year 2006-07 and 2007-08, got
finalized and even Refund was given to the Petitioner under Section 143(1)
Income Tax Act, 1961 (hereinafter referred to as the IT Act) on
25.05.2007.
4. An information was received from the French Government under
the Double Taxation Avoidance Agreement (DTAA) in 2011, indicating
that the Petitioner along with certain others, held bank accounts in HSBC
Private Bank (Suisse), SA, Switzerland. The profile of the Petitioner was
also linked to four other accounts, namely: Portland Holdings Ltd.; Shagun
21 (formerly Shagun, until 25.11.2005); Willaston Investments Ltd., and
Chotuman 21 (formerly Chotuman, until 25.11.2005), in which he was
shown as the beneficial holder.
5. Further, the account of CHOTUMAN-21 where he is shown as the
Account holder, had names of his brother and wife as Attorney and Account
Holder 2, respectively. Additionally, in the Account of Shagun 21 in which
he has the right to inspection, his friend Vivek Chadha is shown as the
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Account Holder. These Accounts could not have been opened, without his
prior permission. It was contended that no steps have been taken by the
Petitioner to verify the statements in the HSBC Accounts.
6. Based on the aforesaid information received under DTAA, a Search
under Section 132 IT Act was carried out on the premises of the Petitioner
on 20.01.2012 but no incriminating material was found qua him.
7. Certain Independent communication was also sought by the
Authorities through FT &TR Division of the Central Board of Direct Taxes.
Once that communication was received, the taxability of the income on the
basis of subsequent Documents/ communications for the said period also
became liable for fresh Assessment.
8. The Petitioner was confronted with the aforesaid documents and his
Statements were recorded under Section 132 (4) IT Act, in which he denied
having any Account in the HSBC Bank.
9. Notice dated 17.10.2012 under Section 153A IT Act, was sent
requiring the Petitioner to file his Return within 15 days from the date of
service. The Petitioner in his Reply to the said Notice dated 05.11.2012,
declared the same income as was previously disclosed in his earlier Returns.
10. Thereafter, Notice was issued under Section 142 (1) IT Act on
18.07.2013, requiring the Petitioner to file certain information in respect of
the HSBC Bank and to sign the Consent-Waiver Form to procure details of
his Bank account from the Swiss Bank. It was contended that no prejudice
would have been caused to the Petitioner, in signing the Consent-Waiver
Form which instead would have facilitated the Indian Government to bring
back the amount lying in Foreign Banks.
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11. Upon his failure to comply with the said Notice, penalty of Rs. 10,000
was imposed upon him under Section 271 (1) (b) of the IT Act vide Order
dated 01.10.2013, which was upheld by the CIT(A) vide Order dated
06.05.2014.
12. Another Notice was issued on 21.10.2013, and a Questionnaire dated
26.11.2012 was served upon him, seeking necessary details to be filled
therein. In response to the statutory Notices, Shri M.L.Dujari, CA attended
the proceedings on behalf of the Petitioner from time to time and filed the
details before the Assessing Officer.
13. Copies of the documents received under DTAA, were once again
furnished to the Petitioner. He filed his Reply in respect of the said
information dated 20.01.2015, wherein he reiterated his denial of having
any knowledge or association with any Swiss Bank Account.
14. A Show Cause Notice was issued to the Petitioner on 04.03.2015
essentially on the basis that the said document received from the French
Government containing details of the Petitioner’s Bank Accounts, which
could not have been accessed without his consent.
15. In Reply to the said Show Cause Notice, it was submitted that in the
document received from the French Government, there was neither any
specific source of information mentioned, nor were there any details of the
Banks or the Government of any specific Country who had provided the
said information. The said document neither had been authenticated by the
concerned Bank or any Competent Authority.
16. It is further stated in the Reply to said the Show Cause Notice that
further information was being sought from the Swiss Authorities, which
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shows that the Revenue itself is not sure about the information received. A
photocopy of the News Report dated 01.02.2012, downloaded from the
website „www.swissinfo.ch‟and a News Report dated 03.05.2012, published
in Nouvel Observateur was enclosed which stated that the information as
received, was stolen and modified and no reliance can be placed upon the
said information.
17. It was further submitted that even though information was sought by
FT &TR Department, but nothing has been received after so many years.
Therefore, interest calculated on the alleged undisclosed amount on the basis
of such unauthenticated documents on the presumed rate of 4%, is bad.
18. After granting opportunity of being heard and after due consideration,
the Assessment proceeding against the accused were completed on
23.03.2015 and Assessment Order was passed under Section 153A/ 143(3)
IT Act, making certain additions on account of undisclosed alleged Foreign
Bank Accounts of the Petitioner, particularly the HSBC Bank in Switzerland
and the interest presumed to have been received from the alleged Foreign
Bank Accounts for the years 2006-07 and 2007-08,under Section 69 IT
Act.Additionally, a penalty along with interest, was imposed upon the
Petitioner, vide Order dated 30.06.2015.
19. Petitioner preferred an Appeal against the Assessment Order dated
23.03.2015 before the CIT (A), claiming that in the absence of any
incriminating material found against the Petitioner, these additions could not
have been made under 153A. The Order of the Assessing Officer (AO) was
confirmed in Appeal by CIT (A) vide Order dated 11.08.2017.
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20. Aggrieved by the Order of CIT (A), an Appeal was preferred before
the Income Tax Appellate Tribunal (ITAT), which vide its Order dated
15.02.2018, set aside the additions made by the AO in the Order dated
23.03.2015.
21. Further, following the Order of ITAT dated 15.02.2018, the penalty
imposed upon the Petitioner under Section 271 (l)(c) in terms of Assessment
Order dated 23.03.2015, was also cancelled by the Commissioner of Income-
Tax (Appeals) in Appeal, vide Order dated 20.02.2018.
22. On 27.01.2016, the Criminal Complaint under Sections 276C(1)(i),
277(1)and 276 (D) IT Act, was instituted against the Petitioner in regard to
Income Tax Returns for the years 2006-07 and 2008-09, for willful attempt
to evade tax in relation to the alleged Foreign Bank Accounts in HSBC
Bank, Switzerland;alleged false verification given while filing original
Return of Income; and non-compliance of Notice dated 18.07.2013 wherein
the Petitioner was required to sign “the Consent Form”and thereby
committed offences punishable thereunder,respectively.
23. Petitioner has sought quashing of these Complaints on the ground
that the Orders of the AO and of the CIT (A) merged into the Order of the
ITAT, being the final Fact-Finding Body under the Income-Tax Act, 1961.
Once the Assessment Order passed by the AO itself is set aside, the criminal
proceedings initiated against him, would become infructuous.
24. The Petitioner has relied on State of Haryana v. Bhajan Lal, AIR
1992 SC 604, where the Supreme Court held that interference under Article
226 or Section 482 Cr.P.C. may be warranted to prevent abuse of process or
to secure justice, though this power is to be exercised sparingly.
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25. Reliance is also placed on Baijnath Jha v. Sita Ram &Anr., 2008 (3)
JCC 1823, where the Court noted that judicial process should not be an
instrument of oppression, and the discretion under Section 482 Cr.P.C. must
be exercised with caution.
26. Further reliance is placed on Uttam Chand & Ors. v. Income Tax
Officer, (1982) 2 SCC 543, and K.T.M.S. Mohammed v. Union of India,
(1992) 197 ITR 196 (SC), wherein it was held that the Prosecution may be
quashed if the Assessee receives a favourable finding from the highest fact-
finding Authority under the Act.
27. Likewise, in Dapel Investment Ltd. & Ors. v. Assistant Commissioner
of Income Tax, (2000) 160 CTR (Del) 428, it was held that if the Tribunal
finds no concealment or inaccuracy warranting penalty under Section
271(1)(c) IT Act, then criminal proceedings under Section 276C(1) IT Act
become unsustainable.
28. Per contra, the Respondents have vehemently submitted that non-
recovery of incriminating material during Search and Seizure Operation, is
not material in a criminal case if all the ingredients of an offence are
established for conviction of an accused. Even though the Assessment
proceedings under the Act/ Order of the ITAT would have a bearing on the
question in issue involved in a criminal case and it may be sufficient to drop
the Criminal proceedings in appropriate case, but such Orders are not
binding on the Criminal Court.
29. Further, ITAT’s Order which set aside the Assessment Order under
Section 153A IT Act, was based solely on technical grounds of lack of
jurisdiction of the AO to assess the income in absence of any incriminating
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material found during search and it did not give any findings in regard to the
alleged undisclosed Foreign Bank Accounts.
30. In support, the Respondent has placed reliance on the case of Rinkoo
Steels and Ors vs. KP Ganguly, Income Tax Officer &Anr.,(1989) 179 ITR
482 to assert that if the ingredients under Section 276C, 277 of the IT Act, if
prima facie made out and was not merely dependant on Assessment Order,
then even if the Assessment Order has been set aside, Criminal proceedings
would continue. It would not be tenable or desirable to interfere in the
criminal proceedings at an early stage when the accused has been
summoned as Court has yet to appreciate the evidence.
31. They have also placed reliance on the case of Sasi Enterprises v.
Assistant Commissioner of Income Tax, (2022) 19 Taxmann.com 54 (Del),
to assert that in the said case, it was held that the offence under Section
276CC for non-filing of Returns, is independent of Assessment proceedings.
32. It is submitted that the prosecution is based not only on the
Assessment Order, but on independent information received from the
Government of France under the Double Tax Avoidance Treaty, that the
Petitioner held undisclosed HSBC Switzerland Accounts and there is no
reason to doubt the veracity of the said information. The Petitioner never
disclosed about these Bank Accounts neither in his Returns filed under
Section 139 IT Act nor in response to the Notice under 153 (A) IT Act.
33. Reliance was placed on the case of S. Surya v. DCIT, (2022) 288
Taxman 209 (Del), to assert that Adjudication proceedings are not a bar to
criminal proceedings.If adjudication proceedings were decided on technical
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grounds and not on merits, proceedings will continue and Assessee cannot
take advantage of adjudication proceedings.
34. The Respondent has also relied upon the judgement of this court in
the case of Karan Luthra v. Income Tax Officer,(2019) 259 Taxmann.com
500 (SC), asserting that non-compliance with the Notice under Section
142(1) of the IT Act and the questionnaire issued by the AO and refusal to
cooperate, including not signing Consent Forms to allow verification from
Swiss Banks, are separate offences that have not been looked into by the
ITAT.
35. Reliance is placed on the case of Jayanti Dalmia v. DCIT, (2022)159
Taxman.com 54, to assert that if the Assessee really had no connection with
the Swiss Bank accounts, no prejudice would have been caused to her if she
had complied with the Notice under Section 142(1) of the IT Act and filled
the Consent Form.
36. Therefore, there are sufficient reasons to proceed with the Criminal
Complaint.
37. Reliance has also been place on S Suryah v. DCIT,(2025) 172
Taxmann.com and DM Kathir Anand v. NS Panidharan Assistant
Commissioner of Income Tax (2023) 154 Taxman.com to assert that
prosecution, under S. 482 Cr.P.C, cannot be quashed without appreciation of
facts and materials; it must be seen whether the offences have been prima
facie made out.
38. It is further contended that the result of proceeding under the IT Act,
would not exonerate the Petitioner or cause any criminal proceeding
initiated under the Act, to come to an end. The result of any proceeding
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under the IT Act would not be binding on the criminal court, which must
independently decide on the basis of evidences before it, as was held in
Jayappan v. SK Perumal,149 ITR 696 (SO) (2022) 139 Taxmann.com 54.
39. It is submitted that the Petitioner had also preferred another Revision
Petition under Section 482 Cr. P.C. before this Court seeking quashing of
impugned Order dated 16.05.2017 of the Ld. ASJ dismissing the Petition
filed by Petitioner to challenge the Order of Ld. Trial Court dated
12.04.2017 directing recording of Pre-Charge Evidence, without deciding
the Application under Section 245 Cr. P.C. for his Discharge. The same
tantamounts to non-disclosure of material information before this Court.
40. It is therefore, submitted that the present Petition is without merit and
is liable to be dismissed.
41. Petitioner in his Rejoinder,submitted that while dismissing the
impugned additions in respect of Foreign Bank Accounts, Ld. ITAT
considered that the impugned Statement in Letter dated 28.06.2011, relied
by the Revenue, neither had any mention of HSBC Bank nor was there any
authentication by French Authority that the true copy of the HSBC Swiss
Bank Account belonged to the Petitioner. Any document so receivedmust be
proved as genuine and authentic beyond reasonable doubt.
42. It is contended that the reliance placed on the case of P. Jayappan
(supra),is misplaced inasmuch as the facts in that case were different
wherein during the course of search, incriminating material was found
against the Assessee.
43. Respondent has itself averred in paragraph 9 of the impugned
Assessment Order dated 23.03.2015, which stated that the Respondent had
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sought further information from the Swiss Authorities about the impugned
document or the alleged Bank Account,though nothing has been received so
far. Thus, mere surmise and conjectures is not enough to prosecute a person
alleging a criminal offence under Section 276D.
44. Section 276C (1) of the IT Act applies only where the Revenue
clearly proves beyond doubt, a willful attempt to evade any tax, penalty or
interest chargeable or leviable under the Act by the Assessee.
45. In so far as offence under Section 277 IT Act is concerned, Petitioner
submits that nothing has been placed on record by the Revenue authorities
to show that the Assessee has made a false statement in any verification
under the Act.
46. Further, in Reply to the Notice dated 18.07.2013 sent under Section
142(1), Petitioner had stated that he had no connection with any of the
alleged Accounts and transactions as mentioned, and therefore, there was no
question of providing a signed Consent Letter. Any such Letter could only
be issued by an Account Holder of HSBC Bank, to instruct HSBC Bank to
divulge information pertaining to Account maintained with HSBC
Bank(Suisse), Switzerland. Furthermore, since now the Assessment Order
with the impugned addition for foreign Bank Account is no more surviving,
the prosecution also must not survive.
47. The Petitioner also submits that the alleged Bank details which have
been collected admittedly at the back of the accused, were never found or
was never given by him, and he was never confronted with the same before
imposition of the penalty. Reference is made to the case of Andaman Timber
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Industries 281 CTR 241 (SC), Kishanchand Chellaram185 ITR 713 (SC)
and Sunita Dhadda SLP (Civil) No. 9432/2018.
48. Insofar as the aforesaid criminal proceedings bearing Criminal MC
No. 2791 of 2017 instituted by the Petitioner are concerned, reliefs claimed
in the same are nowhere connected with relief sought in the present Petition
and the same has already been withdrawn on 27.11.2018.
49. It is therefore, submitted that the aforesaid Complaints initiated
against the Petition under Sections 276C(1)(i), 276 (D) and 277(1) IT Act,
be quashed.
50. Submissions heard and record perused.
51. Admittedly, original Income Tax Return for the year 2006-07 and
2007-08, declaring the total income for the said years, was filed by the
Petitioner, which was accepted and finalized and even Refund was given
to the Petitioner under Section 143(1) of the IT Act on 25.05.2007.
52. However, after about eight years, a fresh Assessment Order dated
23.03.2015 with additions for the Assessment Years 2006-07 and 2007-08,
was passed by AO and penalty imposed on account of some information
received under DTAA from France about the Petitioner having some
undisclosed Bank Accounts in Swiss bank and non-signing of Consent
waiver Form to access the Swiss Accounts.
53. The pertinent questions that arise for consideration are:
1. Whether the information received from France under DTAA can
be relied upon to initiate criminal case against the accused?
2. Whether on the basis of the aforesaid information, could the
Assessee be compelled to sign the Consent Waiver Form?
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3. Whether the Criminal Complaints under Sections 276(1), 276D,
and 277(1) of the IT Act can be sustained when the Assessment
Order has been set aside by ITAT for want of incriminating
material?
I. Whether the information received from France under DTAA can be
relied upon to initiate criminal case against the accused?
54. The Petitioner had filed Income Tax Returns for the Year 2006-07
and 2007-08 by declaring his total income for the said years. The Returns
were finalized and refund was given to the Petitioner under Section 143(1)
IT Act.
55. The case of the Respondent was that in 2011, they received some
documents from the French Government under Double Taxation Avoidance
Agreement indicating that the Petitioner along with certain other persons
held Bank accounts in HSBC, Switzerland which led to reopening of the
Assessment Orders of the years 2006-07 and 2007-08. On the basis of this
information and unauthenticated documents, raid was conducted at the
premises of the Petitioner, but admittedly no documents were recovered.
Despite this, the Assessment for the Years 2006-07 and 2007-08 was
reopened and the Assessment Officer imposed fresh penalties. However,
these penalties as imposed upon the Petitioner was set aside by ITAT vide
its Order dated 15.02.2018.
56. Indisputably, if credible information about a wrongdoing associated
with the income of an individual is received, the Department is duty bound
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to investigate the same, within the boundaries of constitutional
permissibility.
57. However, in the present case, the source of information is the non-
authenticated documents received from French Government under
DTAA.Petitioner has also relied on a photocopy of the News Report dated
01.02.2012, downloaded from the website ‘www.Swissinfo.ch‟and a News
Report dated 03.05.2012, published in Nouvel Observateur which stated that
the information as received, was stolen and modified and no reliance can be
placed upon the said information.
58. The first significant aspect is that the information about
unauthenticated documents was received from French Government and not
from the original or primary source, namely the Swiss Government, which
casts a doubt on its authenticity. Even no prima facie evidence whatsoever,
has been placed on record to establish ownership or linkage of any funds in
Foreign Bank Accounts, to the Petitioner. Mere presence of his name in
unauthenticated document obtained indirectly through a Foreign
Government about alleged Swiss Bank Accounts, does not shift the burden
of proof onto the Petitioner to rebut the allegations as mentioned therein.
59. Moreover, it has been rightly asserted by the Petitioner that the
Respondent had sought further information from the Swiss Authorities about
the impugned document or the alleged Bank Account, though nothing has
been received so far, as is averred in paragraph 9 of the impugned
Assessment Order dated 23.03.2015.
60. It cannot be said that it was the responsibility of the Petitioner to
verify the correctness of the information received. Respondent has no cogent
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evidence whatsoever, to establish that the Petitioner has any Swiss Bank
accounts and the unauthenticated documents have no evidentiary value, to
make out a prime facie case against the Petitioner.
61. Another material aspect is that on the basis of these un-authenticated
documents, a raid was conducted in the premises of the Petitioner, but no
incriminating document even remotely suggesting existence of foreign
Account, was discovered. In the absence of any evidence of there being a
concealment of the income or non-disclosure of the complete income for the
two Financial Years, it cannot be said that the income Assessment as
submitted by the Petitioner, was fraudulent or there was any concealment of
true income.
62. This aspect also finds reinforcement from the Order of the ITAT
dated 15.02.2018 which also quashed the revised Assessment Order made
purely on the basis of unauthenticated documents so received under DTAA,
by observing that there was no basis for revising the Income tax Return of
the Petitioner. There was nothing even remotely to suggest that either the
Assessee was having any bank account in Switzerland with HSBC or he was
in any way linked with these bank accounts It thus concluded that if no
incriminating material has been found during the course of search, no
additions can be made in the Assessment year where Assessments had
attained finality. This is more so when the AO did not confront the Assessee
with any material which could be said to have been recovered from the
possession of the Assessee in the course of search with regard to deposits or
any link with Foreign Bank Accounts. It was further noted that CIT(A)
while upholding the Order of AO had also given a finding, not on account of
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any document or evidence qua the linking of foreign account with the
Assessee but only on the basis of information received under DTAA.
63. Ld. Counsel on behalf of the Respondent has contended that
Assessment Order was set aside on technical ground and the fresh
Assessment is sustainable if additional information is collected, as held in
the case of Kabul Chawla [2016] 380 ITR 573 (Del). This proposition of
law is well settled as also observed in the case of Abhisar Buildwell .[2023]
149 taxmann.com 399.
64. There is no denying on the legal proposition that if ITAT Order
quashing the Assessment Order has its basis in technical grounds, the
offence under Section 276CC for non-filing of Returns is independent of
Assessment proceedings as has also been held in the case of Jayappan
(Supra). Furthermore, it is a settled principle of criminal law that
prosecution can be initiated only where sufficient evidence exists to justify
criminal proceedings to establish a prima facie case.
65. However, in the present case, the sole basis to re-open the Assessment
and to seek prosecution under S. was the unauthenticated documents
received under DTAA claiming that the Petitioner had some accounts in
Swiss Bank, but this information never got authenticated by any
independent verification as was held in the Order dated 15.02.2018 of
ITAT.
66. The basis for charging the Petitioner with the offences in the present
criminal proceedings, is solely the unauthenticated information of Bank
Accounts, which was held to be not established.The contention that the
Order of ITAT was on technical ground, is absolutely incorrect.
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67. Similar facts were considered in the case of Ram Jethmalani v.
Union of India, (2011) 8 SCC 1 wherein the information shared by
Germany with regard to certain bank accounts in Liechtenstein, also
contained names of individuals who appeared to be Indians.While some of
the Foreign Bank Accounts were claimed to have been investigated, others
had not been. It was also claimed that names of all the individuals have been
made public by certain segments of the media. It was held that no
conclusion can be drawn against those who had not been investigated, or
only partially investigated, have committed any wrongdoing. There is no
presumption that every account-holder in banks of Liechtenstein, has acted
unlawfully.
68. A bare reading of the aforesaid judgement, makes it abundantly clear
that merely on some unauthenticated information received from a third
Country with no material evidence, is not sufficient to make out a prima
facie case and there cannot be a presumption that a person has committed
any wrongdoing.Thus, mere surmise and conjectures is not enough to
prosecute a person alleging a criminal offence under Section 276D.
69. The Respondent has also relied on the case of S.J. Surya v. DCIT
(2022) 139 Taxman.com wherein it was observed that “when it comes to
quashing a Criminal Proceedings, it is very well settled that uncontroverted averments in
the Complaint without any addition or subtraction should be looked into to examine
whether an offence can be made out are not. It was held that only when the
Respondent/Complainant makes out a prima-facie case to proceed against the Petitioner
for the offences alleged in the Complaint. Section 278 (e) of the Income Tax Act, 1961,
can the Court presume culpable mental state of the accused, unless the accused shows
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that he had no such mental state with respect to the act charged as an offence in the
prosecution.
70. In view of the aforesaid judgement, it is reaffirmed that presumption
of guilty mind under S. 278E IT Act would arise only if prima facie case is
disclosed in the Complaint. As noted above, the Complainant has merely
relied on some unauthenticated documents received under DTAA, with no
corroborative evidence of there being concealment in disclosure of Income
by the Petitioner. Therefore, when there is no prima facie case made out, no
such presumption of culpable mind can be drawn in the present case.
71. To sum up, first aspect which emerges from the case of the
Respondent itself is that their entire basis rested on unauthenticated
documents received from French Government under DTAA. These
documents have not been verified and without verification, no authenticity
can be attached to these documents received by the Respondent and cannot
be a basis to even make out any case, what to talk of prima facie case.
72. The second pertinent fact is that on the basis of the information so
received, the Respondent had conducted raid at the premises of the
Petitioner, but again no incriminating evidence of any kind was recovered.
73. The Third aspect is that the Respondent was never confronted with
the alleged Bank details allegedly found by the Respondent, before
imposition of the penalty.
74. It, therefore, has to be concluded that the unauthenticated documents
under DTAA cannot be a basis to conclude that there was no complete
disclosure of the income by the Petitioner for the relevant Financial Years.
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II. Whether on the basis of the aforesaid information, can the Assessee be
compelled to sign the Consent Waiver Form?
75. The Respondent has mentioned in the Complaint that Notice under
Section 142(1) IT Act dated 06.05.2013 was issued requiring the Petitioner
to furnish the details as per the Questionnaire dated 26.12.2012. Another
Notice under Section 142(1) IT Act dated 18.07.2013 was issued requiring
him to file information in respect of HSBC Bank, Switzerland. The
Petitioner denied to sign the Consent Waiver Form which was sent to him,
to enable the Respondent to procure the Statements of the Foreign Bank
Account.
76. It was claimed that if the Petitioner had no Bank Accounts in
Switzerland as was being claimed by him, no prejudice would have been
caused to him to sign the Consent Waiver Form.
77. The Respondent haa made as endeavour to contend that not signing
the Consent Waiver Form, has not only made it impossible to verify the
information about his Swiss Accounts, but his conduct leads to the
conclusion of his guilt or else there was no reason for giving the consent to
confirm the information received under DTAA.
78. The Consent Waiver Form requires the Assessee to give his consent
to enable the Tax Authorities to obtain information from the Swiss Banks
about the bank accounts held by the Assessee therein. The Consent Form
was a part of the Notice issued under of the IT Act. It is contended by the
Respondent that Non-compliance with the Notice so issued, leads to
imposition of penalty as provided under Section 271(1)(b) of the IT Act.
Additionally, the same is also an offence under Section 276D IT Act.
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79. In the light of the facts of this case, first and the foremost, there was
no basis for the Respondent to have sought the signing of the Consent
Waiver Form. It was essentially a roving enquiry with no authentic basis
and the Petitioner cannot be compelled to be a witness against himself. Had
there been some concrete incriminating evidence with authenticated details
of Foreign account, the non-signing of Consent waiver Form may have led
to some adverse inference, but in the given circumstances, non-signing of
Consent Waiver Form, cannot be considered as a basis for criminal
prosecution.
80. Secondly, failure on the part of the Petitioner to submit the requisite
information sought in terms of the Section 142 (I) IT Act, led to imposition
of the penalty of Rs.10,000/- under Section 271(1) (b) IT Act, vide Order
dated 01.10.2013. The Appeal was preferred before CIT (A) by the
Petitioner, but it was dismissed by CIT (A) vide Order dated 06.05.2014.
81. From the scheme of the Act and the penal action taken against the
Petitioner for non-furnishing of the requisite information or non-signing of
Consent Waiver Form, can at best be termed as an act which was liable to be
penalized under Section 271 of IT Act, which already been done. The
dereliction of the Petitioner to not sign the Consent Waiver Form, cannot
lead to any adverse inference or to the conclusion that he in fact had the
accounts in Swiss Banks.
82. In the case of Karan Luthra (supra), Co-ordinate Bench of this Court
considered this aspect and observed that the Notices issued by the Assessing
Authority under Section 142(1) are meant to facilitate a best judgment
Assessment. Failure to comply with these Notices constitutes an offence
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separate from the breach of Section 139(1) (failure to file a Return). The
judgment emphasized that Assessment proceedings and criminal
prosecutions are unrelated.
83. This is purely a conjectural conclusion based on surmises that the
non-signing of Consent Waiver Form leads to an adverse inference of the
Petitioner in fact, having Swiss Bank Account or that he was concealing his
true income. Such conclusion is completely against the law and has no basis.
84. Respondent has placed reliance on the case of Jayanti Dalmia
(Supra), in support of his assertions. However, the facts and issues involved
were different from the present case. In the said case, the penalty imposed
under Section 271(1)(b) imposed upon the Assessee were upheld by ITAT
relating to the Swiss Bank Accounts, which was challenged before the
Division Bench of this Court. It is in this context, it was observed that if the
Assessee really had no connection with the Swiss Bank Account, no
prejudice would have been caused if she had complied with the Notice under
Section 142(1) of the Act and filled the Consent Form.
85. However, in the present case the Assessment Orders wherein
additional assessments were made on the basis of undisclosed HSBC
accounts, had been set aside by the Order of ITAT on the ground that there
was no basis for making such additions or imposing penalty. Moreover, the
penalty for non-signing of Consent Waiver Form had already been imposed
under Section 271 of IT Act and the Appeal preferred therein has already
been dismissed by CIT(A). Therefore, when the ITAT concluded that there
was no basis for making additional Assessment, no adverse inference on
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account of non-signing of Consent Waiver Form by the Assessee could be
termed as an act of concealing his true income.
86. It is therefore, held that non-signing of Consent Waiver Form in the
present case, could be penalized under Section 271 of IT Act, which has
already been done but this act in itself, especially on basis of some
unauthenticated information cannot lead to initiation of criminal
proceedings against the accused.
III. Whether the Criminal Complaints under Sections 276(1), 276D, and
277(1) of the IT Act can be sustained when the Assessment Order has been
set aside by ITAT for want of incriminating material?
87. To understand the rival contentions, it would be pertinent to first
understand the contours of Sections 276C(1)(i), 276 (D) and 277(1) IT Act
under which the Complaints have been filed.
88. Section 276C (1) which deals with wilful evasion of Tax, Penalty or
Interest. It provides that if a person wilfully attempts in any manner
whatsoever to evade any tax, penalty or interest chargeable or imposable,
or under reports his income 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 imprisonment as well as fine.
89. Division Bench of Bombay High Court in the case of Nayan
Jayantilal Balu v. Union of India, 2021 SCC OnLine Bom 5913, noted that
the following ingredients must be fulfilled to attract the offence under
Section 276(C):
a) Wilful attempt to evade any tax;or
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b) Wilful attempt to evade any penalty; or
c) Wilful attempt to evade any interest chargeable or
imposable under this Act; or
d) under reporting of his income.
90. Even if one of the above three ingredients are fulfilled, the
prosecution can be initiated under Section 276(C).
91. The question for consideration is whether there is any basis to
conclude concealment of his income, or evasion to pay tax, penalty or
interest, for the relevant years or that he was liable for prosecution for acts
under the aforementioned Section.
92. This is an interesting case, where Income Tax Assessment for the
financial year 2006-2007 and 2007-2008 not only got finalised, but the
excess amount was refunded to the Petitioner on 25.05.2007. The Income
Tax Department sought to reopen these ITRs for these two years in January,
2012 on the pretext of having received some unauthenticated documents
under DTAA. As already discussed, above in detail, these documents were
unproved, unreliable documents, which have even been so held by ITAT in
its Order dated 15.02.2018.
93. Therefore, there was no evidence or reason whatsoever to even prima
facie establish that there was any evasion of tax punishable under Section
276C(1) of the IT Act.
94. The Second offence for which the Petitioner is sought to be
prosecuted is S. 276 (D) if the IT Act, and the same is as under:
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“276D: Failure to produce accounts and
documents [Inserted by Act 42 of 1970, Section 52 (w.e.f.
1.4.1971).]
If a person wilfully fails to produce, or cause to be
produced, on or before the date specified in any notice
served on him under sub-section (1) of section 142, such
accounts and documents as are referred to in the notice or
wilfully fails to comply with a direction issued to him under
sub-section (2-A) of that section, he shall be punishable with
rigorous imprisonment for a term which may extend to one
year or with fine equal to a sum calculated at a rate which
shall not be less than four rupees or more than ten rupees
for every day during which the default continues, or with
both.”
95. The entire prosecution rests on non-signing of the Consent Waiver
Form. As discussed above in detail, the basis for compelling him to sign the
Consent Waiver Form was the unauthenticated information of Swiss Bank
Accounts, which has already been discussed to be not justiciable. He has
already been penalized under S. 271 (b) for this act. Therefore, no offence is
even prima facie disclosed under this S. 276 (D) IT Act.
96. The third offence for which the Petitioner is sought to be prosecuted
is S. 277 which deals with False statement in verification, etc. It reads as
under:
“S.277. If a person makes a statement in any verification
under this Act or under any rule made thereunder, 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, he shall be punishable with the sentence stated
therein.”
97. Likewise, as already discussed above, there is no basis on which it
can be concluded that the Petitioner had made false statements for
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verification or false accounts knowing them to be false, punishable under
Section 277 of IT Act.
98. Whichever way the facts of the present case may be analysed, there is
no evidence whatsoever of either there being any falsification or
concealment of true income by the Petitioner. While, it has been rightly
contended that the order of ITAT set aside the Order of AO, cannot be sole
basis for quashing the present Criminal Complaint, but the aforesaid
discussion dehorns the Order of ITAT, shows that there is not even an iota
of averment in this regard. There is nothing whatsoever on record to merit
the prosecution of the Petitioner under this Section.
99. The Petitioner has contended that once the Order wherein additions
were made to the income of the AO, was set aside by the Ld. ITAT on the
basis whereof penalty was also set aside by the Ld. CIT(A), there was no
material to initiate criminal proceedings qua the Petitioner.
100. Identical question came up for considerationin the case of K.C
Builders and Another v. Assistant Commissioner of Income Tax(2004) 2
SCC 731 wherein, while making reference to the case of G.L. Didwania v.
ITO[1995 Supp (2) SCC 724], the Apex Court observed that where the
whole question was whether the Appellant made a false statement regarding
income which according to the Assessing Authority had escaped
Assessment, and the finding of the Appellate Tribunal is conclusive of there
being no false statement of Income, then it has to be concluded that the
prosecution cannot be sustained. Accordingly, the criminal proceedings
were quashed and the Appeal filed by the Assessee was allowed.
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101. The State seeking to prosecute an individual through properly
conducted investigations, has to be able to establish prima facie grounds to
accuse the individuals of wrongdoing. It is only after the State has been able
to arrive at a prima facie conclusion of wrongdoing based on material
evidence, that the Petitioner can be prosecuted. On the basis of such
unverified information about the Petitioner having account in any Swiss
Bank, which is consistently denied by him, no prima facie offence is
established by the prosecution.
102. Likewise, non-signing of Consent Waiver Form by no interpretation
can be taken as proof of undisclosed income of the Petitioner or considered
as evidence to prima facie establishing any case for criminal prosecution
against the Petitioner.
Final Analysis:
103. The criminal prosecution in the present petition rests solely on these
non-existent Bank Accounts. The findings of ITAT also confirms and
corroborates that there exist no Facts, no Accounts, no False Statement and
no Falsification of Record, which merit the prosecution under Sections
376C(1)(i), 276D and 277(1) of IT Act.
104. Similar facts as in hand were considered in the case of CIT vs. Kabul
Chawla (Supra) wherein, it has been held that under 153A, Assessment
cannot be made arbitrarily or without any relevance or nexus with the seized
material. The Assessment has to be made only on the basis of seized
material. In the absence of any incriminating material, the completed
assessment can be reiterated and the Assessment or reassessment can be
abated. It was further explained that where the Assessments are pending, the
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jurisdiction to make the original Assessment and the Assessment under
Section 153A merges into one. Only one assessment shall be made
separately for each Assessment Year on the basis of findings of the search
and any other material existing or brought on the record by the AO. Thus,
the completed Assessments can be interfered with by the AO while making
the Assessment under Section 153A, only on the basis of some incriminating
material unearthed during the search or requisition of documents or
undisclosed income or property discovered in the course of search which
were not produced and were not already disclosed or made known in the
course of original assessment.
105. Similar observations were made by Bench of this Court in Pr. CIT vs.
Meeta Gutgutia ITA No. 306 and 310/2010, affirming the earlier decisions
in Pr. Commissioner of Income Tax vs. Saumya Construction P. Ltd. (2016)
387 ITR 529 (Guj) and in CIT vs. IBC Knowledge Park Pvt. Ltd. (2016) 385
ITR 483.
106. Nothing incriminating came in the hands of Respondent which could
justify the Re-assessment.
107. An argument is raised on behalf of the Respondent that this Order of
cognizance was also challenged before the Court of Ld. ASJ, but was
dismissed. The said contentions cannot be raised in this petition.
108. This aspect was also discussed in the case of K.C Builders and
Another(supra) wherein the Application was moved by the Assessee before
the Magistrate to drop the Criminal proceedings, was dismissed by the
Magistrate. The High Court also in a Petition filed under Sections 397 and
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401 of the Code of Criminal Procedure, 1973, declined to revise the Order
of the Additional Chief Metropolitan Magistrate and dismissed the same and
refused to refer to the Order passed by the competent Tribunal. It was held
that the High Court was not justified in dismissing the Criminal Revision
ignoring the settled law that the finding of the Appellate Tribunal was
conclusive.The prosecution cannot be sustained since the penalty after
having been cancelled following the Appellate Tribunal’s Order, no offence
survives under the IT Act and thus, quashing of prosecution is automatic.
109. This legal position finds further support from the judgment of the
Madras High Court in S. Surya (supra), which relied upon P. Jayappan v.
S.K. Perumal1984 Supp SCC 437 and Radheshyam Kejriwal v. State of
West Bengal (2011) 3 SCC 581 to hold that an adjudication in favour of the
Assessee, can aid the defence if all the issues raised in the Complaint, are
discussed and decided on merits.
110. In the present case, the same facts were subject matter of Income
Assessment before ITAT, i.e. alleged undisclosed Swiss Bank Accounts,
which were held to be not established.
111. It would be significant to refer to the principles laid down by the
Hon’ble Supreme Court in CIT v. Abhisar Buildwell (P) Ltd. (Supra) and by
this Court in CIT v. Kabul Chawla (Supra), wherein it is held that no
additions can be made in respect of completed and unabated Assessments in
the absence of any incriminating material discovered during the search
under Section 153(A).
112. Reference be also made to the case of PCIT vs. Best Infrastructure
(India) Pvt. Ltd. (2017) 397 ITR 82, wherein similar facts were considered
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by the Coordinate Bench of this Court. It was held that during the course of
search, statements recorded under Section 132(4) by themselves, do not
constitute incriminating material and assumption of jurisdiction by the AO
under Section 153A, solely based on the said statements is unsustainable. It
was thus, concluded that in the absence of any incriminating evidence
relating to implicate the assessee, the same could not be used within the
scope of Section 153A when nothing was found from the search. In absence
of any material in the possession of revenue, the additions made by the AO
in the sum of Rs.2,82,448,860/- were deleted. As a parting comment, it was
further observed that as per the AO certain information was yet to be
received and the material and information available with the Department
needs to be corroborated and further enquired into. Under those
circumstances also, it was held that the same does not fall within the scope
of Section 153A. However, Revenue still has an option to enquire and rake
up the said issue under other provisions of the Act and in accordance with
law. Thus the Appeal of the Assessee for the Assessment Year 2006-2007
was upheld.
113. The Petitioner’s contention also finds support in Puran Mal Vs.
Director of Inspection (1974) 93 ITR 505 SC, wherein the Supreme Court
held that any evidence or material which has been found during the course
of search can be utilized, even if search is held to be invalid.
114. However, it was never a case of the Department that post search
anything was found. The entire case rested on the unauthenticated
information which was already in possession of the Department even prior
to conducting the search. CIT(A) had tried to rope in the element of
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incriminating material/evidence found during the course of search by
holding that statement under Section 132(4) constitutes incriminating
material within the meaning and scope of Section 153A. However, such an
observation was found to be de hors the fact that in the statement recorded
under Section 132(4) at the time of search, Assessee had categorically
denied having any transaction or any link with the foreign bank account. The
observation of the CIT that there was incriminating evidence by way of
statement from foreign authorities wherein the name of Assessee was
appearing, though at the outset appeared to be incriminating, but it was
neither the information collected during the search or thereafter. It was thus
concluded that such an addition on the basis of such unauthenticated
documents which were already in power and possession of the Department,
could not be the basis to make a re-Assessment under Section 153A,
especially in the assessments which are not abated.
115. The Respondent has relied upon Sasi Enterprises Vs. Assistant
Commissioner of Income Tax (Supra) to contend that the Assessment
proceedings are not related to criminal prosecution and therefore, setting
aside of the Assessment Order would not have any impact on the
prosecution proceedings. The issue in the said case was whether non-filing
of Income Tax Returns of the Partnership Firm, by the partners on the
ground that the Assessment was being filed by the individual Partners, was
tenable. The Assessee had sought to justify non-filing of Returns on behalf
of Firm was that they had filed their Income statements and that Books of
Account, had not been finalized. In this context, it was observed that a Firm
is independently required to file Income Return and merely because partners
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of Firm in their individual Returns, disclosed that no Return has been filed
by the Firm due to non-finalization of Books of Account, would not nullify
the liability of Firm to file its Returns, as per Section 139(1) of the IT Act.
Thus, it was observed that the prosecution can be initiated in the absence of
culmination of Assessment proceedings, especially when the Appellant has
not filed the Returns as was 139(1) of the Act. The facts of the said case, are
clearly distinguishable from the facts in hand.
116. The Respondent further contended that since there was no finding on
merits by the ITAT and Order of the AO was set aside merely on technical
ground of lack of jurisdiction, the same cannot be the basis to quash
criminal proceedings.
117. To appreciate this contention, it would be relevant to reproduce the
relevant observations made in the Order dated 15.02.2018 by ITAT wherein
it was recorded that in the raid conducted on 20.01.2012 on the premises of
Petitioner, no incriminating material was found against the Petitioner. All
the information received about the Foreign Bank Accounts, was made
available to the Department prior to the search i.e. on 28.06.2011, for which
reason ITAT in its Order dated 15.02.2018 had set aside the additions made
by the AO in its Order dated 23.03.2015. The relevant observations are:-
“22. Before parting, we make it very clear, that we have not
given any findings on merits, and to the veracity of the
information received from the department and from the
foreign authorities, as to whether Assessee has any link with
the foreign bank accounts or not. Since we have already
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merits, have been rendered academic, and the same are
dismissed as infructuous.”
118. The detailed Order of ITAT reflects that both the contentions of non-
signing of Consent-Waiver Form and unauthenticated documents with no
recovery in search and seizure were considered in detail and found to be
non-sustainable and re-assessment was set aside. All the allegations made in
the Complaint were discussed in detail and decided on merits in the
adjudicating proceedings.
119. The concluding remark of ITAT clearly mentioned that the legal
questions have been answered, thereby reflecting that the aspects on which
the Complaint is based, have been duly considered and decided.
120. Moreover, the contention of the Respondent does not hold much
water when all the allegations raised in the Complaint have already been
scrutinized independently and it has already been established hereinabove
that there is no cogent material to support the allegations in the Complaint.
Conclusion:
121. In the light of aforesaid discussion, considering the totality of the
circumstances and the absence of any credible or corroborative evidence, the
essential ingredients required to attract the provisions of Sections 276(1),
277(1), and 276D of the IT Act, cannot be said to have been established.
122. The Petitions are therefore, allowed and the Two Complaints
No536622/2016 and 517460/2016, are hereby quashed.
123. Pending Applications, if any, are disposed of accordingly.
(NEENA BANSAL KRISHNA)
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JUDGE
21 JULY, 2025
Rk
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