TaxTMI 
TaxTMI 
2023 (9) TMI 1323
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....y reside in India. He is an educated and qualified young entrepreneur, who has built various well-recognised businesses including in the hospitality, jewellery and electronics sector. 3. According to the Petitioner, in recognition of his entrepreneurial skills, he has been conferred with various awards within India as well as internationally. The details of his ventures have been set out in paragraph 6 of the petition, which reads as under:- "6. After completing his formal education, the Petitioner ventured into business without any support or backing and very soon, at a very young age, launched various successful ventures such as Dengen Products India, Tiana (a famous silver jewellery brand which has two stores in the premium markets of Delhi, i.e. Khan market and Greater Kailash 1), Playboy Club Delhi (franchise of the world famous group), RSVP Club, Jazbaa, Velvet Room (all are famous hospitality clubs/restaurants) etc. In addition, the Petitioner has also successfully ventured into businesses relating to electronics. All the said brands are very successful in their right, having been singularly driven by the Petitioner's passion, commitment and hard work. All the sa....
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....at the Delhi International Airport. The Petitioner was orally informed by the concerned officer, that a LOC had been issued against him and thus, he would not be permitted to fly out of the country. His request for a copy of the said LOC was also denied. 10. The Petitioner visited the office of Respondent No. 4, where he was orally informed by the concerned officer, that a LOC had been issued owing to the pendency of the proceedings against him under the Black Money Act, 2015. 11. Thereafter, the Petitioner, appeared before the Income Tax Authorities regularly from time to time to record his statements during the investigation proceedings. 12. During the post-search proceedings, in his statement recorded on 26th June 2019 under Section 131(1A) of the Income Tax Act, 1961, on being asked as to why he did not declare his shareholding in WSTGL, the Petitioner had answered that it was because he was unaware of the relevant provisions under the Income Tax Act, 1961. Accordingly, proceedings under the Black Money Act, 2015 were also commenced. 13. On 30th July 2019, the Petitioner, sent a representation to Respondent No.4, seeking permission to travel abroad in connection wit....
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....and penalty proceedings under Section 41 of the Black Money Act, 2015 were initiated against the Petitioner vide the said order. 22. In view of the said assessment order, the Petitioner wrote another representation to Respondent No.4 dated 12th April 2022, seeking the revocation of the LOC on account of the conclusion of the assessment proceedings under the Black Money Act, 2015. No response was received to this communication as well. 23. On 20th April 2022, the Petitioner filed an appeal against the assessment order dated 30th March 2022 before the Commissioner of Income Tax (Appeals). The Petitioner also sent a reminder representation to Respondent No. 4, on 9th May 2022, requesting the revocation of the LOC against him. It is claimed that no reply was received towards the same. 24. In addition to the demand under the Black Money Act, 2015, a demand of about Rs. 66.48 crores was raised under Section 153A of the Income Tax Act, 1961.Further, in conclusion of the assessment under Section 153C of the Income Tax Act, 1961, in December 2022, a demand of about Rs. 5.35 crore was raised against the Petitioner. 25. On 29th March 2023, a penalty order under Section 41 of the B....
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....ssuance of the LOC and mere recovery of cash and jewellery etc. would not be sufficient to presume that this is black money. D. That the ground, that the amounts would be liable to be recovered under income tax proceedings cannot lead to the issuance of a LOC. He submits that, the Respondent cannot be permitted to rely on material extraneous to the basis of the LOC and that it is only an exceptional case, when a person's travel is considered detrimental to the economic interests of India, which is a very high standard, that the issuance of the LOC can be justified in these circumstances. Ld. Senior Counsel submits that the Respondents cannot invoke the exception of economic interest at this stage. E. That the OM dated 27th October 2010 and the amended clause 8(J) in terms of the OM dated 5th December 2017, clearly indicate that a case of this nature cannot be claimed to be affecting the economic interests of India as an exceptional case for the issuance of a LOC. F. That no FIR/ ECIR has been registered/filed against the Petitioner till date. Ld. Senior Counsel argues that there is no criminality which has been alleged against the Petitioner except for th....
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....dia & Ors. [Decided on 24th August 2022] and W.P.(C) 14746/2022 titled Kondaveeti Papamma v. Union of India and Ors. [Decided on 28th April 2022], respectively, in support of this position. K. That the issuance of directions under the OMs would not constitute 'procedure established by law' as there is a serious curtailment of the fundamental right to travel under Article 21 of the Constitution of India, which is now a well-established right and has been recognized by various decisions of the Supreme Court. Thus, the OM itself would be contrary to law, especially if it is being exercised in an arbitrary and discriminatory manner. Ld. Senior Counsel further submits that the Petitioner is not required to make a specific prayer for the setting aside the OM as raising the same as a ground in the petition and seeking the setting aside of the LOC is sufficient. Submissions by Respondent No. 4 29. Mr. Abhishek Maratha, ld. Senior Standing Counsel for the Income Tax Department, having filed his written submissions has made the following broad submissions: - A. That the Black Money Act, 2015 is a well thought out legislation which has provided for punitive measures ag....
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.... and a large sum of foreign currency has been credited in the bank account of the Hong Kong company, in which the Petitioner had owned the complete shareholding. F. That under the Black Money Act, 2015, an appeal is maintainable under Section 15, if filed within the time specified therein. However, one of the conditions for entertaining such an appeal is that the payment of the demanded amounts would have to be made under Rule 6(4) of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Rules, 2015(hereinafter "Black Money Rules, 2015"). It is his submission that though the Petitioner has filed an appeal in the present case, he has not taken the steps to get the appeal listed nor has he paid the demand in terms of Rule 6(4) of the Black Money Rules, 2015. He states that this itself shows that the Petitioner has no intention of complying with and availing of the legal remedies in accordance with the Act and the Rules. G. That the demand amounts as also the penalty amounts raised under both the Income Tax Act, 1961 as well as under the Black Money Act, 2015 remain unpaid. H. That reliance may be placed on the various OM's for issuan....
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....015 would entail that only if any liability is not objected to by the assessee, would the same have to be deposited in order to admit the appeal under Section 15 of the Black Money Act, 2015, and not otherwise. D. That an LOC cannot be issued by the Government in every case of Black Money Act proceedings. He submits that even as per the OM, detrimental to economic interest of India is one of the rare exceptions within the OM for the issuance of a LOC and the same ground cannot be triggered in every case involving black money proceedings. He further submits that economic interest being an exceptional circumstance under the OM cannot be resorted to in a mechanical or routine manner and ought to be read ejusdem generis with "...detrimental to the sovereignty or security or integrity of India or that the same is detrimental to the bilateral relations with any country or to the strategic and/or economic interest ..." i.e. the factor affecting the economic interest etc. have to be such factors which affect the sovereignty, integrity or the economic integrity of India at the national level and cannot mean individual cases where certain demands under the Black Money Act, 2015 are ....
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....tional conduct such as terrorism etc. do not escape from investigations as also punishment by courts, by leaving the country. 33. In recent times, the purpose of LOCs has been extended to include individuals alleged to have committed economic crimes, or who may have indulged in scams and siphoning- off private and public funds. The authorities at whose behest such LOCs can be issued has also been enlarged. 34. The issuance of LOC's can be traced back to a letter issued by the Ministry of Home Affairs dated 5th September 1979, which permitted the issuance of circulars by various authorities to keep a watch on the arrival and departure of Indians and foreigners. The authorities which were vested with this power under the OM of 5th September 1979, included the Ministry of External Affairs, the Customs Department, the Income Tax Department, the Directorate of Revenue Intelligence, Central Bureau of Investigation ('CBI'), Interpol, Regional Passport Officers, Police authorities in various states, etc. 35. Under the 1979 framework, such a circular was to be valid only for a period of one year, unless the authority specified a longer period. 36. The OM of 2010 laid down a prop....
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....cer of equivalent level (including Assistant Director (Ops.) in Headquarters of NCB); or (vii) Deputy Commissioner or an officer of equivalent level in the Directorate of Revenue Intelligence or Central Board of Direct Taxes or Central board of Excise and Customs; or (viii) Assistant Director of IB/BoI; or (ix) Deputy Secretary of R&AW; or (x) An officer not below the level of Superintendent of Police in National Investigation Agency; or (xi) Assistant Director of Enforcement Directorate; or (xii) Protector of Emigrants in the office of the Protectorate of Emigrants or an officer not below the rank of Deputy Secretary of the Government of India; or (xiii) Designated officer of Interpol Further, LOCs can also be issued as per directions of any Criminal Court in India. c) The name and designation of the officer signing the Proforma for requesting the LOC must invariably be mentioned without which the request for issuance of LOC would not be entertained. d) The contact details of the originator must be provided in column VI of the enclosed Proforma. The contact telephone/mobile number of the respective co....
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.... k) The following procedure will be adopted in case statutory bodies like the NCW, the NHRC and the National Commission for Protection of Children's Rights request for preventing any Indian/foreigner from leaving India. Such requests along with full necessary facts are first to be brought to the notice of law enforcement agencies like the police. The S.P. concerned will then make the request for issuance of an LOC upon an assessment of the situation, and strictly in terms of the procedure outlined for the purpose. The immigration/emigration authorities will strictly go by the communication received from the officers authorized to open LOCs as detailed in the para 8 (b) above." 38. The power to issue a LOC was vested in high-ranking officials such as the Deputy Secretary to the Government of India, Joint Secretary in the State Government, District Magistrate of the concerned district, Superintendent of Police of the concerned district, SP in the CBI, Assistant Director of Enforcement Directorate, Deputy Secretary of R&AW, Designated officer of Interpol, etc. which are spelt out in Clause 8(b) of the same. It was also provided that the signing officer requesting the issuance of th....
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....s against the State and/or that such departure ought not to be permitted in the larger public interest at any given point in time. Instead of: "In exceptional cases, LOCs can be issued without complete parameters and/or case details against CI suspects, terrorists, anti-national elements, etc.in larger national interest" 43. The above clause was to replace clause 8(j) of the OM of 2010 which provided as under: - "In exceptional cases, LOCs can be issued without complete parameters and/or case details against CI suspects, terrorists, anti-national elements, etc in larger national interest." Thus, as per the OM of 5th December 2017, 'detrimental to the economic interests of India' was added as a ground for issuance of an LOC. 44. Vide another OM dated 19th September 2018 the officers of the Serious Fraud Investigating Office (SFIO), and the Ministry of Corporate Affairs were also added to the list of officers that could request the issuance of an LOC, provided as under: - "OFFICE MEMORANDUM Subject: Issuance of Look Out Circulars (LOC) in respect of Indian citizens and foreigners The undersigned is directed to refer to this Ministry'....
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....nd the OM dated 22nd February 2021 was issued, containing the consolidated guidelines for issuance of LOCs, which is presently under challenge. 47. The question before this court is, whether Clause L of the OM of 2021 would be legally valid, especially in respect of the phrase 'detrimental to the economic interests of India' and in respect of other clauses which permit indefinite continuation of LOCs, non-communication of reasons either prior or post issuance of the LOC and extension of LOC to such individuals who in the opinion of the authorities ought not to be permitted to travel on the ground of it being detrimental to the economic interests of India. 48. This issue has arisen in a large number of cases and has been the subject matter of discussion by courts across the country. Analysis of the judgements cited by the parties 49. In the present case, Mr. Akhil Sibal, ld. Senior Counsel has vehemently tried to argue and place before the Court the legal position that the OM itself is unconstitutional in view of the law laid down in A.K. Gopalan vs. State of Madras [1950 SCC OnLine SC 17], Maneka Gandhi vs. Union of India & Anr. [(1978) 1 SCC 248] and Bijoe Emmanuel vs.....
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....the alleged violations of tax laws were not demonstrative of being inimical to the economic interests of the country. Thus, the LOC was quashed in this case. 53. The ld. Division Bench of Madras High Court in Karti P. Chidambaram v. Bureau of Immigration, Ministry of Home Affairs, Government of India and Ors. [W.P. No. 21305/2017, decided on 23rd July, 2018] [2018 SCC Online Mad 2229] considered the OM's of 2000 and 2010 and observed that LOCs are subject to judicial review and if the conditions precedent for issuance of LOCs are not satisfied, the LOC would be liable to be quashed. 54. Reliance has been placed on W.P.(C) 5382/2020 titled Deept Sarup Aggarwal v. Union of India & Anr. [2020: DHC :3439] [Date of decision 2nd December 2020]. 55. The allegation in Deept Sarup Aggarwal (supra) was, that an amount of about Rs. 80.84 crores which was obtained from banks, was siphoned off and parked outside India while making a misrepresentation to the banks that that the same was lost in the market, thereby causing losses to the banks. It was noted that the mere mention in the counter affidavit, of the power to issue an LOC in the economic interest of India, could not take the pl....
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.... 'larger business interest' are not empty words. The relevant paragraph of the said judgment is extracted below: "xxx xxx xxx 32. In the present case the SFIO is investigating into the affairs of the aforementioned companies and its investigation overrides the investigations by other investigating agencies. Therefore recourse to LOC was not unfounded as the Petitioner has definite connection with the investigation as discussed hereinabove. From the facts of the case it is clear that Clause (L) of these Guidelines clearly covers the Petitioner's case as it is detrimental to the "economic interests of India" and that his departure ought not be permitted in the larger public interest. The words "economic interests of India" and "larger public interest" are not empty words in the context of the present case because as mentioned earlier the Petitioner is directly involved and was concerned with considerable share-holding of M/s. Gitanjali Gems Limited. It involves huge amount of almost Rs. Fifty Crores which requires serious explanation from the Petitioner in the background of the allegations that the money belonged to Mr. Mehul Choksi, who has left India and has not r....
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.... to exist in all the subsequent OM's. In this context, the Court observed as under: "xxx xxx xxx 36. However, the matter does not end here and the crucial issue which needs to be now determined is as to whether the Clause 'detrimental to the economic interests of India' introduced vide the amendment in 2017, with a specific rider that the same would be used only in exceptional circumstances, could have, in the facts of the present case, been resorted to, for issuing the impugned LOC, as also whether the impugned LOC could be continued for the last almost 3 years without any proceedings under the IPC or any other penal law being initiated against the petitioner. It has to be kept in mind, that the issuance of a LOC necessarily curtails the rights of an individual to travel abroad and therefore, I am of the view, that for invocation of this Clause, which, in any event, is meant to be used only in exceptional circumstances, a mandatory pre-condition would be a formation of a reasonable belief by the originating authority that the departure of an individual would be 'detrimental to the economic interests of India' to such an extent that it warrants curtailment of an i....
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...., it is treated as a complaint case. It is thus urged by the learned counsel for the, Appellant that if the impugned judgment quashing the LOC is not stayed, grave prejudice shall be caused to the investigation and if Respondent No.1 is permitted to travel abroad, it shall be detrimental to the core economic interests of the country and will be a contravention of the very object for which OMs dated 05.12.2017 and 22.02.2021 have been issued. It is emphasised that the OM dated 05.12.2017 was issued by the Government of India, Ministry of Home Affairs- Foreigners Division (Immigration Section), amending the OM dated 27.10.2010 and expanding its scope to issue LOCS against persons impacting the economic interests of India and the OM dated 22.02.2021 was issued laying down fresh Guidelines for issuance of LOCS and it is clearly stipulated therein that no LOC shall be deleted automatically and shall remain in force till a deletion request is received from the Originator." 64. In the background of the above, the Court stayed the judgement dated 12th January, 2022 passed by the ld. Single Judge in the following terms: "Having heard the learned counsel for the Appellan....
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....belonging to public sector banks and financial institutions are at stake, it would be in the larger public interest as also in the economic interest of India to not exercise discretion in favour of the Petitioner. Thus the LOC against the Petitioner is not liable to be quashed, at this stage." 66. In Rahul Surana v. The Serious Fraud Investigation Office, Chennai and Ors. [W.P.No. 2477/2020, decided on 7th March, 2022], the Madras High Court observed that though the investigation had commenced, no concrete evidence was found to implicate the Petitioner or frame charges and that there was no sufficient material to hold that the Petitioner was a flight risk. Thus, the Petitioners challenge to the LOC was accepted and the writ petition was allowed. 67. In the case of Noor Paul v. Union of India and Ors. [2022(3)RCR(Civil)445], the ld. Division Bench of the Punjab and Haryana High Court observed that there ought to be no impediment in giving a post decisional opportunity to the Petitioner by supplying the LOC to the subject and for permitting the legal recourse to challenge the same. The Court also observed that defaults in loan payments need not only be happening due to the frau....
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....r vide judgement dated 19th September 2023, the court quashed an LOC holding that there must be proper application of mind by the authorities on the facts of each case before the opening of a LOC. The operative portion of the same is extracted below: "25. A perusal of the above cases shows that there has to be proper application of mind by the authorities on the facts of each case before opening of a Look Out Circular which not only impedes the right to travel but also cast an aspersion/stigma on the person in the society against whom the Look Out Circular has been opened." Stand of Respondent Nos. 2 and 3 74. Respondent Nos. 2 and 3 i.e., the Ministry of Home Affairs and the Bureau of Immigration have filed an affidavit stating that an LOC has been issued at the instance of the Income Tax Department. The relevant portion of the submissions which state that the Bureau of Immigration and Ministry of Home Affairs are the custodians of LOC's are extracted below: "1. It is submitted that one Look Out Circular (hereinafter referred to as the "LOC") exists against the Petitioner at the behest of Respondent No. 4. It is further submitted that the details of the afo....
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....to avoid any undue/ unreasonable action against any person who is not covered by the OM of 2021. 76. Reference is made to Para 6(J) of the OM of 2021 to explain that the LOC would remain open unless a deletion request is received from the Originator itself who must review the LOCs opened at its behest on a quarterly or annual basis and submit the proposals to delete the LOC, if any, immediately after such a review. 77. It is also submitted by the Respondents that the practice of issuance of LOCs has constitutional, statutory, and legal backing as per the powers vested with the Union of India through Articles 53, 73 and 77 and the Lists I and III of the VII th schedule of the Constitution of India. 78. It is elucidated that India has signed various international conventions, agreements and bilateral treaties wherein the provisions for denial of entry/ exit to alleged criminals is an integral part thereof. It is obligatory for the Union of India to create an appropriate mechanism for effective implementation of the provisions of such conventions. It is stated that the Government of India has been finding it difficult, cumbersome and expensive to get willful defaulters and ec....
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....uarantor in respect of the said loan. [See Noor Paul v. Union of India & Ors. [2022 SCC Online P&H 3408]; See Bank of India v. Noor Paul & Ors. [Special Leave to Appeal (C). 7733/2022]] vii) Allegations of commission of offences under the IPC and the Prevention of Corruption Act, 1988 and whether a person is accused in the same. [See Karti P. Chidambaram v. Bureau of Immigration [2018 SCC Online Mad 2229]] viii) Subject not accused of any offence on account of being a minor at the time of the commission of the alleged offence. [See Dhruv Tewari v. Directorate of Enforcement [2022 SCC Online Del 1893] ix) Proceedings under the Prevention of Money Laundering Act, 2002 and cooperation with the investigation agency. [See Rana Ayyub v. Union of India & Anr. [2022 SCC Online Del 961]] x) Subject has not evaded arrest or failed to appear before the authorities and has cooperated in the investigation as also in the trial. [See Shri Sathish Babu Sana v. Central Bureau of Investigation [2022: DHC: 332]] xi) The quantum of borrowing from a bank and declaration of wilful defaulter [See Vishambhar Saran v. Bureau of Immigration [2021 SCC Online....
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.... which may justify the issuance of LOCs. However, issuance of LOCs cannot be resorted to in each and every case of bank loan defaults or credit facilities availed for business etc. Citizens ought not to be harassed and deprived of their liberty to travel, merely due to their participation in a business, whether in a professional or a non-executive capacity. The circumstances have to reveal a higher gravity and a larger impact on the country. 83. The various decisions considered above reveal that the issues as to the legality and validity of issuance of LOCs under the OMs, is squarely pending before the Hon'ble Supreme Court and ld. Division Bench of this Court, at least, in the following two cases: - (i) Bank of India v. Noor Paul & Ors. [Special Leave to Appeal (C) 7733/2022] (ii) Income Tax Dept. v. Vikas Chaudhary & Ors. [2022 SCC Online Del 3376] Thus, the legal issues raised herein as to the validity and legality of the O.M. itself are not being gone into. At this stage, pending a decision on the validity of the OM, bearing in mind the factors that have weighed with Courts, each petition would have to be judged on a case- to- case basis. Analysis on ....
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....had accepted Rs. 2,00,000/- as cash sale consideration in terms of an oral agreement to transfer the title to the shares in the company, as well as the control of the company, to Mr. Sachiv Batra. He further stated that he had also shared the net-banking passwords and other details with Mr. Sachiv Batra, which allowed him to operate the bank account. 93. During the course of investigation, the Petitioner's standard reply to most questions was that he was not able to recall anything. The allegation of non-cooperation, concealment and suppression of information does appear to have some basis, at this stage. 94. As per the Respondents, the following are the amounts to which the Petitioner has been assessed: i) Outstanding demand of Rs. 56,35,50,210/- under Section 10(3) of the Black Money Act, 2015. ii) Outstanding demand of Rs. 66.48 crores under Section 153A of the Income Tax Act, 1961; iii) Outstanding demand of Rs. 5.35 crores under Section 153C of the Income Tax Act, 1961. iv) Fresh penalty proceedings under the Black Money Act, 2015 are underway; v) Prosecution proceedings under the Black Money Act, 2015 are underway. 95. Eno....
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....ecorded in the course of proceedings taken under the 2015 Act read as under: - "11. Based on the above facts of the case, it is clear the Mr. Prateek Chitkara was holder of the following undisclosed foreign assets: Sl. Asset Relevant Financial Years Amount/Value Amount (INR) 1. Total Credits in the account no. 582-288742-838 with HSBC Bank (Hong Kong) 2014-19 USD 4,19,48,161.87 HKD 1,705.69 EUR 1,13,951.69 2,72,73,44,850.92 2. Share Capital of Wise Sharp Tech Group Limited 2014-19 HK $ 10,000 82,561.15 Total 272,74,27,412.07" The Court bears in mind the fact that under the extant Office Memorandum which governs the issue of Look Out Circulars, the solitary relevant factor is not merely of the individual being arraigned as an accused in a criminal case, but also of the Court bearing in mind the larger public interest as well as the economic interests of the country which too are factors to be borne in mind while evaluation the validity of a Look Out Circular that may come to be opened. What weighs with the Court at this stage is the quantum of funds that are stated to have been ferreted overseas as well as th....
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....deliberately concealed the existence of a company in Hong Kong, which was under his control. He did not divulge the details of the same despite being provided with repeated opportunities to do so. Furthermore, substantial transactions have been carried out in the bank account of the said Hong Kong based entity, which was also not revealed to the authorities. Additionally, the Petitioner attempted to wriggle out of giving any explanation in respect of these transactions. 105. On the other hand, the Court also takes into consideration the fact that the Petitioner is only about 34 years of age and that the non-issuing of permission to travel, could be having an adverse impact on his career and his personal life. The Petitioner has substantial familial ties in India. His parents are senior citizens and have come to his rescue by agreeing to stand as sureties and are offering their properties as security. 106. This court is of the opinion that this is not a case that would be detrimental to the economic interest of the country as there is no allegation that the Petitioner has siphoned off any public funds. 107. In addition, the overwhelming fact that no criminal proceedings hav....
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....na Nagar, admeasuring 27ft. X 18.5ft. E) One Shop, Situated at Mauja Mustafabad, Tehsil Jagadhari, Distt. Yamuna Nagar, admeasuring 10ft x 8ft. F) One Residential House, Situated at Mauja Mustafabad, Tehsil Jagadhari, Distt. Yamuna Nagar being part and parcel of House No.44, admeasuring 40ft x 32ft. G) Land admeasuring: 1 Bigha 4 Biswas and 7 Biswansi, situated at Khasara No. 40, Killa Nos. 7min (0-7-7), 5Min (0-5), 6Min (0-4) an 7Min (0-8), approximately 1226 Sq. yds at Village Mehrauli, New Delhi. The abovementioned properties are valued at about Rs. 40 crores as per the Petitioner. If the Petitioner travels abroad and fails to return, the above properties would be liable to be confiscated. iii) The original documents of the above properties shall be submitted to the authorities, and it shall be verified that these are not encumbered in any manner; iv) The Petitioner shall file an undertaking before the authorities that he shall be bound by the orders that may be passed by the Commissioner of Income Tax (Appeals) in the Black Money proceedings subject to any remedies that he may avail of in accordance with law. v) Whe....