TaxTMI 
TaxTMI 
TaxTMI 
2023 (9) TMI 1323
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....ied 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 said ventures required the Petitioner to constantly travel....
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....ed 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 with his business and for collecting an award, at an event to be held in France....
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.... 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 Black Money Act, 2015 for an amount of about Rs. 169 crores was passed against the Petitioner. The sa....
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....hat 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 the first time, it is sought to indirectly be contended in the counter affidavit that there appears to be a cognizable offence or that prima facie an offe....
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....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 against persons dealing with black money. B. That in the present case, a penalty order dated 29th March 2023, has been passed under Section 41 of the Black Money Act, 2015 imposing a penalty of appr....
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....able 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 issuance of LOC's, wherein it is clearly mentioned that if a person's travel would be detrimental to the economic interest, the travel would not be permitted, and the LOC would not be liable to be quashed. I. That the Petitioner in the course of the s....
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....ct 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 being raised. Ld. Senior Counsel further explains that the purpose of the Black Money Act, 2015 is to stop the stashing of foreign assets and to recover tax in respect of black money. He argues that it was never meant to be a tool for stopping the international travel of Indian citizens. E. That t....
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..... 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 proper and more comprehensive framework for the issuance of LOCs. On 27th December 2000, an OM was issued dealing with the issuance of LOCs in respect of Indian citizens. Vide this OM, it was provided that, only on the approval of an Officer not below the rank of Deputy Secretary to the Government of India or Joint Secretary in the State G....
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....ice 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 control room should also be mentioned to endure proper communication for effective follow up action. e) Care must be taken by the originating agency to ensure that complete identifying particulars of the person, in respect of whom the LOC is to be opened, are indicated in the Proforma, apart from sex and nationality, are available. However, LOC can also be issued if the name and passport particulars of the person are concerned are available. It is the responsibility o....
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....thorities 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 the LOC, would have to mention his name and designation in the request for the LOC, without which the same would not be entertained. The liability of issuance of the LOC, thus, vested with the originating agency. 39. As per the OM of 2010, recourse to LOC could be taken in the case of cognizable offences under IPC or other penal laws. In cases where there is no cognizable offence, only information relating to the arrival and departure of the LOC subject could be made mandatory. A LOC, usually, was to be valid only for a period of one year from th....
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....nal 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's O.M. No. 25016/31/2010-Imm dated 27th October 2010 and subsequent O.M. no. 25016/10/2017-Imm(Pt.) dated 5th December 2017 & 19th July 2018 on the above mentioned subject and to say that the request of the Serious Fraud Investigation Office (SFIO), Ministry of Corporate Affairs to include an officer of SFIO not below the rank of Additional Director (in the rank of Director in the Government of India) in the list of officers who can make a request for opening a Look-Out Circular (LOC) has been considered in this Ministry. 2. It has accordingly been decided, with the approval of the competent authority, to add the foll....
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....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. State of Kerala [(1986) 3 SCC 615]. 50. The said decisions do lay down clearly that the right to travel abroad is a fundamental right. It cannot be stultified without due process. On the said preposition, there can be no dispute. However, the question is whether the OM's are liable to be declared as unconstitutional, in view of the clauses which permit the issuance of LOCs. 51. The Petitioner has relied upon W.P(Crl.) 1315/2008 titled Sumer Singh Salkan v. Asstt. Director & Ors. [2010:DHC:3951] [Date of decision 11th August 2010], which is the basic judgment on LOCs, which played an important role in the issuance of the OM of 2010. In the said decision, the Court hel....
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....20]. 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 place of giving reasons for the exercise of the same. The court has also referred to the settled legal position whereby the legality and/or validity of a LOC has to be adjudged having regard to the circumstances prevailing on the date on which the request for the issuance of a LOC was made. Further, it was held that the mere allegation that the conduct of the Petitioner (who was arraigned in an FIR and ECIR) is evasive and non-cooperative, would not be a valid ground for the issuance of a LOC. Accordingly, the LOC was quashed. 56. In Hemanta Kumar Banka v. Union of India [WPO No. 53/2021, decided on 23rd February 2021], the High Court of Calcutta was considering a case where a nationalized bank of India which had a branch in Singapore had give....
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....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 returned back. This transaction is an important part of the entire fraud involving huge amount. Sheer magnitude of the offence and its spread through various banking operations and transfer of money through different modes and different countries shows that it has definitely affected the economic interests of India and the larger public interest is definitely involved and affected. Therefore, we do not find that issuance of LOC against the Petitioner was unnecessary." 58. In Vishambhar Saran v. Bureau of Immigration & Ors. [WP No. 10241(W) of 2020, decided on 24th December 2021] [2021 SCC Online Cal 3074], the Calcutta High Court held that vague allegations of a persons travel being detrimental to the economic interest of the country or the quantum of the alleged default (Rs. 351 crores in this....
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.... 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 individual's fundamental right to travel abroad........ xxx xxx xxx 39. Merely because the OM dated 05.12.2017 permits the issuance of a LOC, in exceptional circumstances, even when the individual is not involved in any cognizable offence under the IPC or any other penal law, it has to be remembered that this power is meant to be used in exceptional circumstances and not as a matter of routine, it must therefore, be interpreted in a manner that indicates an offence of such a magnitude so as to significantly affect the economic interests of the country. Mere suspicion of a person opening bank accounts in other countries and of investing in a foreign company cannot, in my view, be accepted as the basis for holding that the petitioner being allowed to travel abroad would be 'detrimental to the economic interest of I....
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....rein 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 Appellant and the learned Senior Counsels for respondent No. 1, in our view, Appellant has made out a prima facie case for grant of interim relief. The balance of convenience is also in favour of the Appellant and in case the impugned judgement is not stayed, irreparable loss shall be caused to the Appellant. We, accordingly, stay the operation, implementation and execution of the impugned judgement dated 12.01.2022, passed by the learned Senior Judge in W.P.(C) 5374/2021, till the next date of hearing. Respondent No. 1 is hereby directed to deposit his passport with the Learned Registrar general of this Court, latest by 5:00 PM on 04.02.2022. The passport shall be kept by the Learned Registrar General in safe custody in a sealed cover. Since it is the stand of the Learned Senior Counsels appearing on behalf of Respondent No. 1 that on account of business constr....
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....d 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 fraud committed by the borrower but also due to market conditions, labor unrest, lack of raw material, pandemic situation, etc. 68. The Petitioner in Noor Paul (supra) was a guarantor in respect of the said loan which was taken for her family business. She had thereafter, secured admission in an MBA Program in Boston for which she was required to travel abroad. It was under these circumstances that the LOC was quashed and costs were also imposed. 69. The Supreme Court, in the SLP No. 7733/2022 titled Bank of India v. Noor Paul & Ors. vide order dated 5th May 2022, stayed the observations of the ld. Division Bench insofar as it required issuance of a copy of the LOC to the subject and a post-decisional opportunity. 70. The judgment in Noor Paul (supra) clearly was held by the Supreme Court not to be treated as a precedent in other cases. The Petitioner, however, was allowed to travel with the condi....
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.... 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 aforesaid LOC is as follows: (i) Issued at the behest of Assistant Director of Income Tax (INV), UNIT-4(4), ROOM NO. 121; C, BLOCK CIVIC CENTRE, NEW DELHI vide ref no. F.No. ADIT (INV)/U- 4/2018-19/149, dated 11.12.2018, with the action "Prevent subject from leaving India and inform originator." (ii) The LOC was issued by the answering Respondent on the request of Respondent No. 4 for the committing of offences by the petitioner under the penal provisions of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015. 2. It is submitted that the answering Respondents issues LOC on the basis of and in terms of guidelines issued by the Ministry of Home Affairs vide Office Memorandum No. 25016/10/2017-Imm(Pt.) dated 22.02.2021 (hereinafter referred to as the "OM dated 22.02.2021"). 3. It is submitted that Ministry of Home Affairs LOC Guideline issued vide Office Memorandum No. 25016/10/2017-Imm(Pt.) dat....
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....anism 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 economic offenders back to India to face the law who have successfully evaded the process of law and fled the country. Additionally, LOC guidelines serve public as well as national interests since implementation results in prevention of flight risk. 79. The impact of LOC guidelines on helping nationalized banks in recovering their money by preventing the escape of willful defaulters in order to protect the money of the public at large from such scamsters and fraudsters is also highlighted. 80. The Bureau of Immigration has also expressed that it has no objection to the withdrawal/modification of the LOC in the instant case if the originator or the competent criminal court in India directs so. 81. From the case laws discussed above and the stand of the UOI, it is clear that there are several factors that have affected the quashing or upholding of LOCs, including: i) Existence of investigations in respect of cognizable offences under the IPC or other penal laws [See Sumer Singh Sa....
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....borrowing from a bank and declaration of wilful defaulter [See Vishambhar Saran v. Bureau of Immigration [2021 SCC Online Cal 3074]] xii) Whether the person has been named as the accused and involvement in the day- to- day affairs of the company under investigation. [See Rahul Surana v. SFIO [MANU/TN/1605/2022]] xiii) Pendency of departmental enquiry/proceedings. [See Satish Chandra Verma v. Union of India [2019 (2) SCT 741 (SC)]] xiv) Suspicion of existence of offshore funds and bank fraud of siphoning off funds to bank accounts in foreign countries See Atul Punj v. IDBI Bank [2022 SCC Online Del 4063]. xv) Right and interest of the investing public and large amount of public funds being at stake See Ghanshyam Pandey v. Union of India & Anr. [2023/DHC/001114]. xvi) Existence of security commensurate to the amounts owed by the Petitioner See Ratul Puri v. Union of India & Ors. [MANU/DEOR/120412/2022]. xvii) Effect on bilateral relations with foreign countries if loans in foreign countries are not being repaid. [See Hemanta Kumar Banka v. Union of India & Ors. [WPO No. 53/2021 dated 23rd February 2021]] xviii) Connection with other individuals who have already fl....
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....to- case basis. Analysis on facts 84. The Petitioner was the beneficial owner of a company by the name of M/s Wise Sharp Tech Group Limited which was incorporated in Hong Kong in 2014. 85. He claims to have purchased the company sometime in 2014, by paying a sum of HKD 10,000 and was also a director in the said Hong Kong company. However, the Petitioner did not disclose this fact in his income tax return. 86. Proceedings under the Black Money Act, 2015 were then commenced against him after issuing show cause notice dated 14th December 2018 followed up with another show cause notice dated 22nd October 2021. 87. The bank account maintained by the said Hong Kong company, was alleged to be under the control of the Petitioner. Transactions worth Rs. 300 crores were admittedly undertaken in the said bank account. The said Hong Kong company is stated to be struck off as mentioned in the assessment order by the Income Tax Department. 88. Vide order dated 29th March 2023, a penalty to the tune of around Rs. 169 crores was imposed on the Petitioner under the Black Money Act, 2015. The said penalty order was quashed by the ld. Division Bench, vide order dated 12th April 2023, on the gro....
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.... upon Section 41 of the Black Money Act, 2015 which stipulates that three times the sum equivalent to the tax computed under Section 10 of the Act would be liable to be paid as penalty. 96. The Petitioner has filed an appeal against the assessment order, under the Black Money Act, 2015 which is pending before the Commissioner of Income Tax (Appeals). However, in the appeal, no amount has been deposited in terms of Rule 6(4) of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Rules, 2015, which requires the deposit of tax along with penalty and interest thereon, on the amount of liability which has not been objected to by the assessee, in order to admit an appeal preferred under Section 15 (1) of the Black Money Act, 2015. 97. The appeal is also stated to have not been listed before the Commissioner of Income Tax (Appeals), though the Petitioner also appears to have not pursued the same. Admittedly, an appeal has also been preferred by the Petitioner against the demand under the Income Tax Act, 1961. 98. In the present proceedings as well, the Petitioner has repeatedly sought permission to travel which was first refused by this court vide order dated ....
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....arned counsel for the petitioner was unable to tender any plausible explanation for the quantum of funds held overseas. The fact that the aforesaid account was opened and controlled by the petitioner was also not disputed on behalf of the petitioner. Learned counsel was also unable to place before the Court any cogent material in support of his contention that the aforesaid account was transferred to another individual/entity or that his interests therein were surrendered in accordance with a procedure recognizable in law. Bearing the aforesaid facts in mind, the prayer for interim travel is refused." 99. The LPA No. 739/2022 against the said order was disposed of vide order dated 23rd December 2022 with the direction that the writ petition ought to be decided on an early date. The matter has, thereafter, been heard from time to time. 100. On 13th February 2023, this Court directed as under: "4. On the basis of the submissions heard so far, the following directions are issued:- (i) The Petitioner shall disclose by way of an affidavit his moveable/immovable assets in India as also the details of his family members etc. living in India. (ii) The Respondent shall produce the....
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....already been raised and the assessment order has already been passed under the Black Money Act, 2015, the appeal before the Commissioner of Income Tax (Appeals) is still pending. 109. Fresh penalty proceedings are still under-way, and the Court is informed that prosecution is also sought to be initiated, after the final oral submissions in this matter stand concluded. 110. Under these facts and circumstances, this Court is of the opinion that stringent conditions deserve to be imposed upon the Petitioner. The LOC debarring him from traveling can be converted into an intimation about the arrival/departure of the Petitioner in terms of Clause 6(I) of the Office Memorandum of 2021. 111. The LOC issued against the Petitioner stands modified to an intimation, subject to the following conditions: i) The relevant authorities/entities shall be informed of the arrival/departure of the Petitioner on every occasion. ii) The following properties of the parents of the Petitioner shall be offered as security for the purpose of ensuring that the Petitioner does not flee or leave the country in order to escape further scrutiny and action in accordance with law: - A) Land Measuring 88K 01M....