TaxTMI 
TaxTMI 
2026 (8) TMI 893
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....irs ["MHA"] against the respondent Vikas Chaudhary at the instance of the Income Tax Department. B. The facts 2. The respondent is a Director in M/s Nautilus Metal Crafts Pvt. Ltd. and M/s Aastha Apparels Pvt. Ltd., companies registered in Delhi and engaged in export of garments to the USA, Europe, South America, the UK and the UAE. 3. Following the issuance of a Warrant of Authorization ["WOA"] dated 5 February 2019 under Section 132(1) of the Income Tax Act, 1961 ["The IT Act"] against the Kochar Group of companies and M/s HL Impex (P) Ltd, the premises of the respondent were searched from 6 to 9 February 2019. During the search, certain goods and documents were seized. The statements of the respondent and his wife Shilpa Chaudhary were recorded. 4. On the basis of a second WOA issued against the respondent and his wife on 12 February 2019, the locker of the respondent was searched and jewellery valued at Rs. 1,00,67,181/- was seized. 5. Following the aforesaid seizures, the LOC was issued against the respondent by the MHA at the instance of the Income Tax Department on 25 February 2019. The LOC restrained the respondent from leaving the country. 6. The reason d....
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....I. Submissions of the respondent 14. Before the learned Single Judge, the respondent contended that the LOC was issued on mere suspicion of possession of undisclosed foreign assets and investments in foreign entities. Despite the fact that his premises were searched in February and April 2019, the respondent pointed out that no case under the Black Money Act, the IT Act or the PMLA had been registered. The only justification provided by the MHA/Income Tax Authorities for issuance of the LOC was that digital evidence, seized from the residence of the respondent, revealed undisclosed transactions, resulting in a reference being made by the Foreign Tax and Tax Research Authorities ["FT&TRA"] from authorities in Dubai, the outcome of which was awaited. On the basis of the said specious consideration, the respondent submitted that the MHA and Income Tax Authorities were alleging that undisclosed income had been transferred by the respondent to M/s Centurion International Limited ["CIL"], a company located in Dubai, to acquire its shares. To counter this allegation, the respondent submitted affidavits and certificates from authorities in Dubai in May 2019 itself, certifying that no sh....
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....hatsApp chats, it was submitted, were of no evidentiary value. To counter this material, the respondent had provided documents to indicate that the amount transferred for the purchase of shares in CIL was not AED 16,500,000, but only AED 7,50,000, which was transferred by Aastha Chaudhary, the respondent's daughter, to M/s Royal Centurion Real Estate Development LLC, Dubai ["RCRED"], at the request of the latter. However, as this transaction did not materialize, the amount was returned to the account of Aastha Chaudhary through banking channels. 19. The respondent further pointed out that, after the search and seizure effected at his premises, two income tax assessments had been carried out, which disclosed additional income of only Rs. 21.4 crores. The allegation of involvement of the respondent in tax evasion of Rs. 1,500 crores was, therefore, stated to be completely lacking in substance. 20. Without prejudice to the aforesaid submissions, the respondent further contended that the LOC had expired at the end of one year from its issuance on 25 February 2020 and that there was no evidence of its renewal. It was only an amendment introduced vide OM dated 22 February 2021 issu....
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.... respondent was involved in a financial scam of huge magnitude in which investigation was progressing, and that there could not be any justification to allow the respondent to leave the country at that point of time. 26. The respondent's submission that it was only AED 750000 which had been paid for purchase of shares in CIL and that the said amount was received back when the transaction did not materialise, was denied. The UOI contended that a much higher amount had been paid by the respondent to RCRED, which had never been refunded. 27. This, it was submitted that the respondent and his family owned assets in Dubai, which were not disclosed in the respondent's income tax returns. 28. It was further contended that the respondent had a controlling interest in M/s JBB Apparels Pvt Ltd and M/s. JBN Apparels Pvt. Ltd. through his relatives and friends. Avtar Singh Kochar, who was involved in hawala transactions, had, in his statement, disclosed that some of the companies owned and controlled by the respondent were used by him for money laundering. The total amount of tax evasion in which the respondent was involved was stated to be in the region of Rs. 1500 crores. 29. In ....
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....M dated 27.10.2010. 26. The third issue arising for my consideration, is whether the impugned LOC can be held to have lapsed after one year from the date of its issuance or whether the same still continues to hold the field, as urged by the respondent no. 3, for which purpose reliance has been placed on the consolidated guidelines issued by the respondent no. 1, vide it's OM dated 22.02.2021. Depending on the answer to the second issue, the fourth and final issue, which in my opinion is the pivotal issue, on which the outcome of the present case would depend, the same being as to whether the petitioner's case would fall within the ambit of the Clause 'detrimental to the economic interests of the country' and if yes, whether the respondents can continue to curtail the petitioner's rights by the impugned LOC for an indefinite period, when admittedly, till date, no proceedings have been initiated against him." 33. The learned Single has decided the first three issues against the respondent and in favour of the appellant. However, with respect to the fourth issue, i.e. as to whether a case for issuance of LOC in terms of the 2017 OM, on the ground that allowing the responde....
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.... 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 individual's fundamental right to travel abroad. Turning to the facts of the present case, what is emerging is that the entire case of the respondents to believe that the petitioner's departure from the country will be 'detrimental to the economic interests of India', hinges on an unsigned draft agreement and some WhatsApp chats, which it is the respondent's own case are not conclusive. The respondents, are therefore, awaiting a response to their FT & TR references to the authorities at Dubai, United Arab Emirates to proceed against the petitioner under the Black Money Act 2015, Income Tax Act 1969, and the Prevention of Money Laundering Act 2002, which were, in fact, the reasons provid....
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....o remain one of mere suspicion. 45. In these circumstances, the learned Single Judge holds that the Union of India could not continue to place fetters on the respondent's right to travel abroad, in the absence of sufficient evidence even after three years to charge the respondent under the IT Act, the PMLA Act or the Black Money Act. 46. The impugned judgment observes that the respondent was a garment exporter, who earned his livelihood by exporting garments to the US, Europe, South America, the UK and the UAE and that, in the very nature of its business, overseas travel was an integral part. The issuance of the LOC, therefore, curtailed the respondent's liberty and his right to livelihood under Article 21 of the Constitution of India, with no end in sight. 47. The learned Single Judge further observes, in the impugned judgment, that the issuance of an LOC is an extreme step to be employed in exceptional circumstances, and not routinely as in the present case. The mere suspicion of a person opening bank accounts in other countries or investing in foreign countries could not be accepted as the basis for holding that allowing the person to travel abroad would be detrimental ....
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....rt incentives with unrelated companies, without disclosure thereof, in his income tax returns. There was further evidence of unexplained cash transactions with one Sudhir Gulati, leading to an additional income tax demand of approximately Rs. 22 crores. (iii) Investigations against the respondent under the Black Money Act revealed the existence of the draft agreement, a copy of which was available on his mobile phone, indicating acquisition of 10% shareholding by Aastha Chaudhary in CIL valued at Rs. 30 crores, relating to properties situated at Dubai. This was also not disclosed in the income tax returns either of Vikas Chaudhary or of Aastha Chaudhary. These facts had been communicated by the FT & TR division to the authorities in Dubai and investigations in respects thereof were underway. 55. Primarily, Mr. Rai submits that the impugned judgment fails to notice the magnitude of tax evasion in which Vikas Chaudhary is involved which also involves bogus purchases of approximately Rs. 1153 crores. 56. Mr. Rai further submits that the learned Single Judge has erroneously distinguished the decisions in S Martin and G.S.C. Rao, solely on the ground that, in those cases,....
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....that the Court ought not to set aside the LOC, thereby allowing the respondent to flee the country. II. Submissions of Mr. Shadman Ahmed Siddiqui 60. As against this, Mr. Shadman Ahmed Siddiqui, learned Counsel for the respondent, reiterates and relies upon the grounds on which the learned Single Judge has set aside the issuance of LOC. It is pointed out again that the respondent had appeared 19 times during investigation and joined the assessment proceedings over 40 times and that, therefore, there was no justification for placing any fetter on his movement outside the country by issuing the LOC. Moreover, it is submitted that the LOC had been issued under the 2010 OM, and had perished by efflux of time on 25 February 2020. It could not, therefore, have been revived two months later on 21 April 2020. Besides, the OM dated 22 February 2021, on which the Union of India relies, cannot have retrospective effect. 61. In these circumstances, the respondent submits that no case for interference with the impugned judgment passed by the learned Single Judge can be said to exist. F. Analysis 62. The entire controversy can be dealt with, in our opinion, by addressing just two ....
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....not only among competing propositions of law, or competing versions of a legal proposition, or the modalities of an indeterminacy such as "fairness" or "reasonableness", but also among propositions from outside the ruling law, corresponding to the empirical knowledge or accepted values of present time and place, relevant to the dispensing of justice within the new parameters.' The aforesaid two passages lay immense responsibility on the Court pertaining to the exercise of the power keeping in view the accepted values of the present. An organic instrument requires the Court to draw strength from the spirit of the Constitution. The propelling element of the Constitution commands the realisation of the values. The aspiring dynamism of the interpretative process also expects the same. ***** 42. When we speak about judicial review, it is also necessary to be alive to the concept of judicial restraint. The duty of judicial review which the Constitution has bestowed upon the judiciary is not unfettered; it comes within the conception of judicial restraint. The principle of judicial restraint requires that Judges ought to decide cases while being within their def....
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....on the qui vive, the Court has also to remain conscious of the fact that the width of judicial review, vested in it for the purpose, has to be tempered with a degree of judicial restraint, so as to ensure that the well delineated peripheries of judicial review are not breached. 65. The judicial and executive, it must be realized, are co-equal players in our democratic arena. The judiciary does not sit in appeal over the executive while exercising the power of judicial review. It tests the manner in which the executive has acted, to ensure that the action remains with legally permissible limits and subscribes to the tenets of justice and fair play. Superior courts are superior only within the judicial hierarchy; they are not superior to the executive. Mutual respect among the judiciary, executive, and legislature, is of the very essence, in order to ensure that any democratic establishment prospers and thrives. There can be no feeling of one-upmanship. 66. If the judiciary expects the executive to respect its judicial wisdom in matters relating to the law, it must, equally, respect the wisdom of the executive in matters which fall within the subject realm of executive discreti....
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....ter latitude than laws touching civil rights such as freedom of speech, religion, etc. We observed that the legislature should be allowed some play in the joints because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. We quoted with approval the following admonition given by Frankfurter, J. in Morey v. Dond 354 US 457: "In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the Judges have been overruled by events - self-limitation can be seen to be the path to judicial wisdom and institutional p....
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....eforms sought to be undertaken by the Government or its functionaries. In this regard, we may gainfully refer to the following observations made by a three-Judge Bench of this Court in the case of BALCO Employees' Union v. Union of India (2002) 2 SCC 333:- "93. Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider relative merits of different economic policies and consider whether a wiser or better one can be evolved. For testing the correctness of a policy, the appropriate forum is Parliament and not the courts. Here the policy was tested and the motion defeated in the Lok Sabha on 1-3-2001. [..........] 97. Judicial interference by way of PIL is available if there is injury to public because of dereliction of constitutional or statutory obligations on the part of the Government. Here it is not so and in the sphere of economic policy or reform the court is not the appropriate forum. Every matter of public interest or curiosity cannot be the subject-matter o....
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....al boundaries or infringe on fundamental rights, but it does not entail a comprehensive re-evaluation of the policy's wisdom. The judicial review of policy decisions is limited to assessing the legality of the decision making process rather than the substantive merits of the policy itself. For example, if a government policy infringes on fundamental rights or discriminates against a particular group, the courts have a duty to strike down such policies. However, in the absence of constitutional or legal violations, the courts should respect the policy choices made by the executive or legislature. 57. The duty of the court in policy-related cases is primarily to determine whether the policy falls within the scope of the authority granted to the relevant body. If the policy decision is within the executive's legal authority and has been made following proper procedures, the courts should defer to the expertise and discretion of the policy-makers, even if the policy appears unwise or imprudent. This restraint ensures that the courts do not impose its own perspective on policy matters that are rightly the responsibility of other branches. 58. Economic and socia....
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....perts. The same is a matter for decision exclusively within the province of the Central Government. Such matters do not ordinarily attract the power of judicial review. Merely because some class/sector may not be agreeable and/or satisfied with such packages/policy decisions, the courts, in exercise of the power of judicial review, do not ordinarily interfere with the policy decisions, unless such policy could be faulted on the ground of mala fides, arbitrariness, unfairness, etc. 70. There are matters regarding which the Judges and the lawyers of the courts can hardly be expected to have much knowledge by reasons of their training and expertise. Economic and fiscal regulatory measures are a field where Judges should encroach upon very warily as Judges are not experts in these matters. 71. The correctness of the reasons which prompted the Government in decision taking one course of action instead of another is not a matter of concern in judicial review and the court is not the appropriate forum for such investigation. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering of the points from differe....
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....32 and 226 of the Constitution of India are very wide and untrammelled and are vested in the superior courts to protect the legal and fundamental rights of the citizens and even non-citizens, the courts over the years have evolved certain self-restraints for exercising these powers. They have done so in the interest of the administration of justice and for better and more efficient and informed exercise of the said powers. The self-restraints or limitations are imposed as a matter of prudence, propriety, policy and practice. The extraordinary jurisdiction under Articles 32 and 226, by its very nature is used sparingly and in the extraordinary circumstances. 85. It may further be noted that again as well settled, the Fundamental Rights under Part III of the Constitution are part of the integrated scheme of the Constitution. They are not exclusive of each other but operate, and are, subject to each other. The action complained of must satisfy the tests of all the said rights so far as they are applicable to the individual cases. Though Article 21 grants a person right to life and personal liberty, it permits the State to deprive a person of his life and personal liberty, pro....
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....irement to inform the person arrested, as soon as may be, of the grounds of arrest. As per Article 21 of the Constitution, no person could be deprived of his life or personal liberty except according to procedure established by law. Since, the personal liberty of a person is deprived, when he is arrested, the procedure laid down in the statute while depriving his personal liberty, has to be followed. Similarly, as per Article 22(1) of the Constitution, no person who is arrested, could be detained in custody without being informed, as soon as may be, of the grounds for such arrest. Thus, the grounds for such arrest have to be communicated to him as soon as may be after the arrest is made. Tersely put, there has to be due compliance of the constitutional and statutory mandates, whenever an arrest is made of a person under the special Acts. ***** 91. However, when the legality of such an arrest made under the special Acts like PMLA, UAPA, Foreign Exchange, Customs Act, GST Acts, etc. is challenged, the Court should be extremely loath in exercising its power of judicial review. In such cases, the exercise of the power should be confined only to see whether the statuto....
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....al facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the society, etc. For these or such other reasons, arrest may become an inevitable part of the process of investigation. 94. It is pertinent to note that the special Acts are enacted to achieve specific purposes and objectives. The power of judicial review in cases of arrest under such special Acts should be exercised very cautiously and in rare circumstances to balance individual liberty with the interest of justice and of the society at large. Any liberal approach in construing the stringent provisions of the special Acts may frustrate the very purpose and objective of the Acts. It hardly needs to be stated that the offences under the PMLA or the Customs Act or FERA are the offences of very serious nature affecting the financial systems and in turn the sovereignty and integrity of the nation. The provisions contained in the said Acts therefore must be construed in the manner which would enhance the objectives of the Acts....
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....er view, as expressed in the italicized words in the following extracts from paras 36 and 39 of the impugned judgment: "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 individual's fundamental right to travel abroad." (From para 36) "Merely because the OM dated 5-12-2017 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 th....
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....erson is detrimental to the sovereignty or security or integrity of India or that the same is detrimental to bilateral relations with any country or to the strategy and/or economic interests of India or if such person is allowed to leave, he may potentially indulge in an act of terrorism or offences against the State and/or that such departure ought not to be permitted in the larger public interest at any given point in time." The residuary clause contained in para 8(j) of the 2010 OM was, therefore, deliberately and consciously widened and expanded to include, inter alia, a case in which it appeared, to the authority issuing the LOC, based on inputs received, that the departure of the person concerned from India was detrimental to the economic interests of India. The subjective satisfaction which the amended para 8(j) envisages is, therefore, that of the authority issuing the LOC. Unless and until, therefore, the Court is satisfied that there was no material on the basis of which the authority issuing the LOC could have arrived at the satisfaction regarding the existence of one, or more, of the factors envisaged in the amended para 8(j), or that, for the sake of argument, the m....
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....as acted, and done so, is qualitatively or quantitatively sufficient to justify the decision. II. Re. Issue (2) - Does the decision to issue the LOC merit interference in judicial review? 80. Paras 37 to 40 of the impugned judgment [As reported in 2022 SCC OnLine Del 97] contain the reasons for the learned Single Judge's decision: "37. 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 p....
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....fence under any other Penal Laws. Thus, when as on date, there is no active investigation in regard to the alleged economic offences by the petitioner, coupled with the fact that the petitioner has, on 19 occasions appeared before Respondent 3, I have no hesitation in accepting the petitioner's plea that the very premise of the issuance of the LOC against him is based on a suspicion, which suspicion remains a mere suspicion even as on date, and that is perhaps the reason as to why no prosecution has been undertaken against him either under the Black Money Act, Income Tax Act or Prevention of Money-Laundering Act, even after an inordinately long period of almost three years. 39. Moreover, even if the respondent's plea, that in view of the ongoing investigation regarding the petitioner's foreign interests, the issuance of the LOC in February 2019 was justified, were to be accepted, the continuance of this LOC for almost three years without any cogent reasons forthcoming from them, is not understandable. In my considered opinion, it would be wholly impermissible, for the respondents, to continue placing fetters on the petitioner's right to travel abroad, in su....
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....OI was basing its case on an unsigned draft agreement and some WhatsApp chats, which were not conclusive. (ii) The UOI was, therefore, awaiting a response from the authorities and Dubai, to its FT & TR references. (iii) The respondent had produced materials from the government of Dubai, to show that neither he, nor his family members, owned any asset or shares in any company in Dubai. (iv) The LOC had remained in force for almost three years, without the UOI taking any further action against the petitioner under the Black Money Act, the IT Act and the PMLA. (v) The two income tax assessment orders dated 15 July 2021 assessed the respondent's additional income to be Rs. 21.4 crores. (vi) There was no other material to substantiate the stand of the UOI that the respondent was involved in a huge financial scam or any offence under any other penal law. (vii) There was no active investigation in regard to the alleged economic offences committed by the respondent. (viii) The respondent had appeared on 19 occasions before the income tax authorities. (ix) The case against the respondent was, therefore, even as on that ....
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....530,637 Total 28,210,689 Grand Total 192,323,490 8. From earlier actions of various law enforcement agencies, one Mr. Manoj Garg has been found to be involved in International Hawala transactions. The Petitioner Vikas Chaudhary is related to him, as is evident from various evidences seized during the course of searches at the premises of Vikas Chaudhary. In the phone of Vikas Chaudhary there is a list of various numbers of MG and people who are known to Vikas Chaudhary through Manoj Garg. The list of persons related to Manoj Garg whose contact numbers have been found from the mobile Vikas Chaudhary are as follows - Name Phone Numbers Ajay Gupta Ref MG +919871034123 Manoj garg 00971505502919 Mg 9910091921 MG India +918527891921 Mg Uk +447471500001 Reg MG Ajay Gupta +919871034123 Siddharth Mandavia MG Friend Mumbai +919920799999 Vipin garg ref manojgarg 9911113344 9. Further there is a company named 'M/s Maximus International General Trading LLC' which is controlled by Mr. Manoj Garg from whom significant amount of money is received by the Petitioner Vikas Chaudhary's G....
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....& TR reference in July, 2019. However, the replies from the U.A.E authorities is still awaited, probably delayed on account of the Covid SARS 2 pandemic. 13. Therefore, the Petitioner Vikas Chaudhary has committed various offences under the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 ("Black Money Act") under Sections 50, 51, 52, 53 and 56(3) of the Black Money Act, by purchase of shares of M/s Centurion International Limited, which have not been disclosed with the Income Tax Authorities. 14. The total income tax evasion which has been found by the Income Tax Department as a result of search action is more than Rs 1500 crores on account of bogus purchases, fraudulent claim of export incentives, unaccounted cash transaction, unaccounted investment etc. (Detailed findings of the Income Tax Department in the form of the Appraisal Report will be placed in a sealed cover for the perusal of the Hon'ble Court). Further, final assessment order in the case of the Petitioner Vikas Chaudhary and his companies is due on 30.06.2021. 15. It is submitted that though the Black Money Act does not provide as to whether the offenc....
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....the respondent, involving fraudulent export incentives to the tune of Rs. 170 crores, in respect of which information was also shared with the Directorate of Revenue Intelligence, and action initiated, and (vii) bogus purchases by Aastha Apparels Pvt Ltd, JBB Apparels Pvt Ltd and JBN Apparels Pvt Ltd to the tune of Rs. 1153 crores, the information relating to which had been shared with the Directorate General of GST Intelligence which also confirmed raising of fake invoices and availing of fraudulent GST input credit by the said companies, apart from the purchase of 10% shares of CIL through a draft agreement executed by Aastha Chaudhary. Even in respect of this purchase, the counter-affidavit alleged that the purchase was one from Amit Agarwal, who frequently visited Dubai and had filed income tax returns income of less than Rs. 5 lakhs. The investigations with the Dubai authorities were essentially with respect to the purchase of shares in the company situated in Dubai and acquisition of property therein. 84. The counter-affidavit alleged that all the above details remained undisclosed to statutory authorities, including the Income Tax authorities and, if found to be ....