2019 (2) TMI 1001 - HC - Income Tax

Court dismisses writ petition challenging Black Money Act 2015, allows prosecution for post-enactment actions. Failure to disclose foreign assets post-Act justifies prosecution.

The court dismissed the writ petition challenging the applicability of the Black Money Act of 2015, ruling in favor of prosecution under the Act for ... Prospective application of Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 with effect from April 1, 2016 - voluntary disclosure under the Act of 2015. - penalty under Section 271(1)(b) and 271(1)(c) - foreign bank accounts and the amount lying thereat were taken into consideration by the Assessing Officer - Held that:- The petitioner had an opportunity to make the disclosure with regard thereto while submitting his return in the proceedings under search and seizure. The petitioner also had an opportunity to disclose such assets before the Settlement Commission. The petitioner did not avail of any of the two opportunities. Those opportunities were subsequent to the Act of 2015 coming into effect. Therefore, the petitioner failed to furnish in his return of income, an information about an asset located outside India. It attracts the provisions of Section 50 of the Act of 2015. He can be proceeded against under the Act of 2015. There are sufficient materials on record for proceeding against the petitioner under the Act of 2015. Section 55 of the Act of 2015 provides the persons at whose instance, the prosecution will be made for an offence under Section 49 to Section 53 both inclusive. The petitioner was required to file a return after the search and seizure proceedings. It did not do so. It also did not make true and proper disclosure in the settlement proceedings. It cannot be said that, a retrospective effect has been sought to be given to the Act of 2015 so far as the petitioner is concerned. The failure of the petitioner to file the requisite return was subsequent to the Act of 2015 coming into effect. Anwar Ali (1970 (4) TMI 1 - SUPREME COURT) has considered the issue as to whether the Income Tax Authorities were justified in imposing a penalty on the assessee under Section 28(1)(c) of the Act of 1961 in the facts of that case. It has held in such context that, contraventions of Section 28 of the Act of 1961 may give rise both a criminal offence as well as a statutory offence. However, if a penalty has been imposed under Section 28, no prosecution before the Criminal Court shall again lie in respect of the same offence. In the present case, the petitioner is charged with violating the provisions of Section 51 of the Act of 2015 which is different to that of any provisions of the Act of 1961. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. In the facts of the present case, the Act of 1961 does not impose a punishment of imprisonment while the Act of 2015 does. In such circumstances, it cannot be said that, the petitioner has been sought to be punished twice for the same offence. W.P. dismissed. Issues Involved:1. Applicability of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 (referred to as the Act of 2015) prospectively.2. Validity of prosecution under the Act of 2015 for actions before its enactment.3. Double jeopardy in relation to proceedings under the Income Tax Act, 1961 (referred to as the Act of 1961) and the Act of 2015.4. Requirement of mens rea for prosecution under the Act of 2015.Issue-Wise Detailed Analysis:1. Applicability of the Act of 2015 Prospectively:The petitioner sought a declaration that the Act of 2015 should apply prospectively from April 1, 2016. The petitioner argued that fiscal statutes are generally prospective and that the Act of 2015 should not penalize actions before its enactment. The petitioner highlighted that he was precluded from making a disclosure under Section 59 of the Act of 2015 due to pending proceedings under Section 153A of the Act of 1961.2. Validity of Prosecution under the Act of 2015 for Actions Before Its Enactment:The petitioner contended that he was barred from making a disclosure under the Act of 2015 due to ongoing proceedings under the Act of 1961. He argued that penal provisions of the Act of 2015 should not apply retrospectively. The court noted that the Act of 2015 came into effect from April 1, 2016, and provided a window from July 1, 2015, to September 30, 2015, for disclosures. The petitioner had opportunities to disclose the foreign assets during the search and seizure proceedings and before the Settlement Commission but failed to do so. Therefore, the court held that the petitioner could be prosecuted under the Act of 2015 as the failure to disclose occurred after the Act came into effect.3. Double Jeopardy:The petitioner argued that he was being subjected to double jeopardy as proceedings were initiated under both the Act of 1961 and the Act of 2015. The court clarified that the Act of 1961 and the Act of 2015 operate in different fields. Under the Act of 1961, the assessee is penalized financially, while under the Act of 2015, the assessee can face imprisonment. The court referred to the case of 'State of Maharashtra v. Sayyed Hassan,' which held that there is no bar to trial or conviction under two different enactments, provided the offender is not punished twice for the same offence. The court concluded that the petitioner was not suffering double jeopardy as the offences under the two Acts were different.4. Requirement of Mens Rea for Prosecution under the Act of 2015:The petitioner argued that mens rea (criminal intent) is required for prosecution under the Act of 2015. The court stated that the question of mens rea could be decided in the criminal proceeding itself and not in the writ petition. The court referred to 'M/s. Gujarat Travancore Agency, Cochin v. Commissioner of Income Tax, Kerala, Ernakulam,' which held that mens rea is not required to be proved in penalty proceedings under Section 271 of the Act of 1961. The court found that there were sufficient materials on record for the petitioner to stand trial for violation of the Act of 2015.Conclusion:The court dismissed the writ petition, finding no merit in the petitioner's arguments. The court upheld the validity of the prosecution under the Act of 2015 and concluded that the petitioner was not subjected to double jeopardy. The petitioner's failure to disclose foreign assets after the enactment of the Act of 2015 attracted the provisions of the Act, and there were sufficient grounds for proceeding against the petitioner. The writ petition was dismissed with no order as to costs.