2020 (11) TMI 875

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.... complaints under Section 276-C (1) and Section 277 of the Income Tax Act being CC No. 528982/16 (Old CC No.157/4) and CC No.528983/16 (Old CC No.158/4) on 12th January, 2016. In this petition, the stand of the petitioner is that the respondent/department has preferred these complaints on the very same material, evidence, witnesses and documents and the allegation in all the three complaints are to a large extent word to word same. 3. The petitioner is facing three separate trials in all the three complaints before the same Magistrate for allegedly not declaring the fact of having a foreign account to the Income Tax authorities, though the material and evidence relied upon by the respondent/department is similar in all the three complaints. Petitioner stated that he had filed an application before the learned Magistrate for clubbing of the three complaints and joint trial, which was rejected by the learned Magistrate on 30th June, 2018 while observing as under:- "7. Keeping foreign funds for number of years might be part of same transaction but not declaring the same in the Income Tax file for each specific year under prosecution is a distinct offence. Each instance of ....

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....of years is part of the same transaction. It is stated that filing of income tax returns for each financial year cannot give rise to a separate cause of action for filing prosecution for each financial year, particularly when the core allegation is of keeping a foreign account, which the court itself concluded to be part of the same transaction. 7. It was submitted on behalf of the petitioner that the respondent has not been able to distinguish between 'assessment proceedings' and the 'prosecution proceedings'. The assessment proceedings are conducted by an Assessment Officer as designated under the Income Tax Act while an "offence" is triable by a Court of Law. Assessment proceedings conducted by competent authority known as Assessment Officer as defined u/s 2(7A) is an assessment for the purposes of calculating/assessing any tax or any other sum of money payable under the Income Tax Act, be it interest or penalty. "Tax" is defined u/s 2(43) of Income tax Act to mean as income tax chargeable in any Assessment Year and subsequent years under the provisions of Income Tax Act, which may be of one year or spread over to several years. Such "tax" does not include "interest" or "pena....

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.... the aforesaid, notice under Section 274 r/w Section 271 of the Act was issued for non compliance of Section 142(1) of the Act, which is punishable with rigorous imprisonment for a term upto one year under section 276D of the Act. It is alleged that the petitioner did not disclose the foreign bank account in return of income and balance appearing in the said foreign account was also not taken into account in his balance sheet and thus, the petitioner made a "willful attempt to evade income tax" thereby committed substantive offence under section 276C(1) of the Act for which the he is liable to be prosecuted u/s 276C(1) of the Income Tax Act for both the assessment years i.e. A.Y. 2006-07 and A.Y. 2007-08. Besides, the petitioner is also alleged to have committed the offence under Section 277 of I.T. Act for making a false statement/ false verification in the respective returns of income for both the assessment years 2006-07 and 2007-08. Resultantly, criminal complaint C.C. No. 511538/16, under Section 276D of the Act for the assessment year 2006-07 was preferred by the respondent/department against the petitioner. In addition, two separate criminal complaints C.C. Nos. 528983/16 an....

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....ance sheet, petitioner had committed the offence under section 277 of the Act by making false statement/ false verification in the respective returns of income for both the assessment years 2006-07 and 2007-08. Therefore, separate criminal complaints C.C. Nos. 528982/16 and 528983/16 for assessment years 2006-07 and 2007-08 u/s 276C(1) and u/s. 277 of the Act was preferred by the Department. Learned counsel pointed out that as per the provisions of Code of Criminal Procedure, the offence under Section 256D of I.T. Act is a summons triable offence and Sections 276C and 277 I.T. Act are warrant triable cases and these cannot be tried together. It is also pointed out that Section 220 Cr. P.C is an exception to section 218 Cr.P.C. which provides for one trial for every such offence if these are a part of the same transaction. It was submitted that offence under Section 276C I.T. Act and Section 277 I.T. Act are premised on different transactions in the said undisclosed foreign account and non disclosure thereof in the income tax returns for different assessment years. It was stated that these transactions are not part of same transaction warranting joint trial under Section 220 Cr.P.C ....

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....sed, A-29 Friends Colony (East), New Delhi. That a search action was carried out on 28.07.2011 at the residence of the accused, A-29 Friends Colony (East), New Delhi. That a search action was carried out on 28.07.2011 at the residence of the accused, A-29 Friends Colony (East), New Delhi. 3. During the search proceedings statement of the accused was recorded on oath, in which he had written all the answers in his own handwriting. On the basis of information received regarding his account with HSBC Bank, Zurich he was questioned about his foreign bank accounts. He admitted that he had opened a bank account with HSBC Bank, Zurich, Switzerland in December 2002, when visited there. .... ...He further said that the account is not into existence as on today and should have been closed. He further stated that the said bank account with HSBC Bank was not disclosed in his return of income. Regarding mode of operation he submitted that he used to give cash on the instruction of the introducer at Delhi, who arrange to deposit the same in his bank account at Zurich. He further stated that he has given at Delhi in the year 2002 amount ranging from Rs. 2-5 crores. That durin....

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....9th Feb., 2016 in WP(Crl.) 743/2013 in which it was held that Sec. 220 of the Cr.P.C. permits of one trial even if many offences are committed, if such offences form part of the same transaction, the rationale for such an exception being that in such circumstances, separate trials may lead to conflicting judgments. 17. In 'Mohan Baitha vs. State of Bihar, AIR 2001 SC 1490', the Supreme Court interpreted Section 220 of the Code and observed as under:- "It may be noticed that under Section 220 of the Code of Criminal Procedure, offences more than one committed by the same persons could be tried at one trial, if they can be held to be in one series of acts, so as to form the same transaction. The expression "same transaction" from its very nature is incapable of an exact definition. It is not intended to be interpreted in any artificial or technical sense. Common sense and the ordinary use of language must decide whether on the facts of a particular case, it can be held to be in one transaction. It is not possible to enunciate any comprehensive formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. But the ....