While hearing an appeal filed by Dabur India Ltd Promoter Pradip Burman in Black Money case related to undisclosed Bank Account maintained Outside India, Delhi High Court held that prosecution can be launched against him as at the time of commission of alleged offence, the petitioner Pradip Burman has not reached to the age of 70 years, although, the complaint in question was filed against him when he attained the age of 70 years. Pradip Burman cannot be given benefit of Instruction No.5051/1991 dated 07.02.1991. High Court further held that pendency of appeal is no ground for stay of the proceedings if the same has no bearing on the complaint.
Related Facts are as follows :-
Mr. Ganesh, learned senior counsel appearing on behalf of the petitioner argued that the complaint case filed by the respondent/Income Tax Department is liable to be quashed on the ground that at the time of filing of the criminal complaint, the petitioner had attained the age of 70 years, thus, no prosecution can be initiated against him.
In support of the aforenoted submission, learned senior counsel has heavily relied upon the case bearing Criminal Revision Petition No.36/2011, titled as ‘Arun Kumar Bhatia & Anr Vs. Vijay Kumar & Ors.’, decided by this Court on 02.11.2011. In the said case, the petitioner had taken the ground that he was above the age of 70 years on the date of filing the complaint and as per Circular dated 07.02.1991 issued by the Central Board of Direct Taxes, no prosecution can be initiated against a person who is above the age of 70 years.
Learned senior counsel further argued that case against the petitioner is that he concealed his income and did not file income tax accordingly. The said complaint was filed on the allegation that the petitioner had filed his original return of income in the prescribed form duly signed and verified by him for Assessment Year (‘AY’) 2007-08 on 31.07.2007 vide receipt No.000105, declaring income of Rs.75,31,769/-, in which his account with HSBC (P) Bank, Zurich, was not disclosed by him. The information that petitioner is having foreign bank account with the aforesaid Bank was received by the Investigation Wing of the Income Tax Department, Government of India. On coming to know about the said information with the Indian Government, vide letter dated 30.08.2011 addressed to the Director General of Investigation, Income Tax Department, New Delhi, the petitioner stated that he had an account outside India, which is as per FEMA Regulations, through his AR Abhay K. Aggarwal. To verify the details of the said foreign bank account in the name of the petitioner and the source of the deposits, summon under Section 131 (1A) of the Income Tax Act, 1961 (‘IT Act’) dated 02.09.2011 was issued to the petitioner. Having knowledge qua start of the inquiries with regard to the source of funds deposited by the petitioner in the aforesaid foreign bank account, the petitioner admitted the same vide letter dated 03.10.2011, wherein he firstly stated that the information with the Department is unauthentic/unreliable and then agreed to deposit income tax on account of the balance exists in the foreign bank account in his name. Copy of the same is annexed as Annexure-I to the complaint filed by the petitioner. Vide letter dated 07.10.2011, the petitioner again offered to deposit income tax on the undisclosed deposits made by him in the foreign bank account, copy of the letter is annexed as Annexure-J.
The petitioner vide letter dated 14.10.2011 admitted that the amount lying in the foreign bank were about US$40,000 and US$32,12,000 in the Financial Year (‘FY’) 2005-06 and 2006-07, relevant to AY 2006-07 and 2007-08. Copy of the same is annexed as Annexure-K.
Learned senior counsel further submitted that since the petitioner has challenged the AO in the appeal and the same is pending for adjudication, therefore, the petitioner cannot be prosecuted in the criminal complaint filed by the Department.
To strengthen his submissions, learned senior counsel has relied upon the case of Commissioner of Income Tax, Mumbai, Vs. Bhupen Champal Lal Dalal & Anr., in SLP (Crl.) No.2430 of 2000 decided on 27.02.2001 by the Supreme Court, wherein observed as under:-
