TaxTMI 
TaxTMI 
TaxTMI 
2018 (7) TMI 2075
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....l Chief Metropolitan Magistrate's Court, Ballard Pier, Mumbai on 4th September, 2015 alleging offences under Section 277 of Income Tax Act,1961, Sections 181, 186, 191 read with Section 193 of Indian penal Code. Learned Magistrate has taken cognizance of the said complaint and the same is pending in the said Court. The petitioner has been impleaded as accused in the said complaint. The petitioner appeared before the trial Court and furnished bail bond. (b) Petitioner filed Writ Petitions bearing Nos. 1208 of 2016, 1209 of 2016, 1210 of 2016, 1211 of 2016, 1212 of 2016, 1213 of 16, 1324 of 2016 and 1326 of 2016 in this Court seeking directions to Income Tax Settlement Commission who had rejected the application of petitioner dated 30th March, 2016 for settling his cases for assessment years 1998­99 to 2014­15 vide order dated 12th April, 2016. This Court by order dated 3rd August, 2016 and 10th August, 2016 set aside order dated 12th April, 2016 passed by Income Tax Settlement Commission and Order dated 30th March, 2016 passed by Assessing Officer, thereby restoring application of settlement on the file of Commissioner. The petitione....
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....itioner that the impugned orders were passed without affording any opportunity to the petitioner. It is submitted that the proceeding before the trial Court would due for hearing on 2nd July, 2018. However, the respondent No.1 had taken the matter on board on 9th April, 2018 and thereafter the order was passed on 12th April, 2018 which was followed by order dated 13th April, 2018. It is submitted that the proceedings are pending in the trial Court since 2015 and all of a sudden, the application was preferred before the trial Court behind the back of the petitioner wherein the said order was passed. The trial Court has erred in mechanically passing impugned order dated 12th April, 2018 and issuing impugned Letter of Request dated 13th April, 2018. No notice was given to petitioner or his advocate by respondent. The Court has exceeded jurisdiction under Section 166A of Code of Criminal Procedure and Section 105 of Code of Criminal Procedure. It was necessary to follow provisions envisaged under Section 105 C to 105 J of Code of Criminal Procedure. The said provisions contemplate issuance of show cause notice as to why the properties sho....
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....y under Section 166­A of Code of Criminal Procedure which do not require issuance of show cause notice to the person against whom the relief are sought. It is submitted that in the application itself it was stated that there is sufficient evidence collected by the investigating agency with regards to the amounts in the said country in relation to the entities in which the petitioner is the beneficiary and therefore the trial Court has rightly passed said orders. It is submitted that there is no violation of principle of natural justice. The trial Court is empowered to pass such order. He relied upon the decision in the case of Union of India and another ­Vs­ W.N.Chadha (1993 Supp (4) Supreme Court Cases 260) in support of his opportunity submission that of hearing was not required to be given for invoking provisions of Section 166 A of Code of Criminal Procedure. It is submitted that from the title of the application preferred before the trial Court it is clear that the relief was sought only under Section 166­A of Code of Criminal Procedure and not under Section 105­C. It is submitted that for the reasons stated in the applic....
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....mpetent authority for investigation. The said application was allowed and matter was taken on board. The application vide Exh.16 seeking the reliefs stated hereinabove was taken on record and the same was posted for hearing on 12th April, 2018. While passing impugned order, the Court was pleased to observe that on perusal of record it is found that the complainant has mentioned regarding the accounts maintained by the accused in the foreign country i.e Government of Bailiwick of Guernsey. It is further observed that in the said account there is huge amount of Rs. 400 crorers and there is apprehension that accused would transfer the said amount from the account to any other country. Hence, it is necessary to issue letter of request that the Government of Bailiwick of Guernsey to investigate and to collect the evidence or material in respect of the account maintained by the accused in the said country and to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement made in the course of such examination and also require such person or any other person to produce any document or thin....
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....A of Code of Criminal Procedure. The steps to issue such letter were adopted when investigation in pursuant to registration of FIR was in progress. The Hon'ble Supreme Court observed that rule of audi alteram partem is not attracted for investigation under Section 166A of Code of Criminal Procedure. The investigating officer is not deciding any matter except collecting material for ascertaining whether a prima­facie case is made out or not and a full enquiry in case of filing report under Section 173(2) of Code of Criminal Procedure follows in a trial before the Court or Tribunal before filing report and at that stage rule of audi alteram partem cannot be applied. 8. In the present case, the proceedings were pending before the competent court, the matter was adjourned to 2nd July, 2018 and the application was preferred on 9th April, 2018 by taking matter on board. The nature of prayers made in the application are highlighted above. It is also alleged that the assets of which petitioner is owner are proceeds of crime. Letter of Request refers to invoking Section 105 C of Code of Criminal Procedure. The Letter of Request also refers....