AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
1975 (3) TMI 3
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....sessment years, the last one being the assessment year 1959-60. The returns were filed by the appellant between March 26, 1958, and October 16, 1961, in accordance with section 22(2) of the Indian Income-tax Act, 1922--hereinafter referred to as the 1922 Act. The said Act was repealed and replaced by the Income-tax Act, 1961--hereinafter called the 1961 Act. The 1961 Act came into force on or from April 1, 1962. During the course of the assessment proceedings when account books were produced for examination by the Income-tax Officer, Special Investigation Circle. " B ", Jaipur, he suspected their genuineness or correctness. In May, 1963, the appellant's premises were searched and a number of other books of account and documents were seized.....
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.... with article 20(1) of the Constitution of India. The Magistrate felt persuaded to accept the stand taken on behalf of the appellant and held that he could not be prosecuted after imposition of penalty under the taxing statute and acquitted the appellant in all the cases. The High Court has held that since no penalty was imposed on the petitioner or his firm under section 28 of the 1922 Act, section 28(4) was not a bar to the institution of the prosecution nor was it hit by article 20(1). The High Court did not express any view whether the offence, if any, committed by the appellant fell under section 277 of the 1961 Act or section 52 of the 1922 Act. The appeals were allowed and the Magistrate was directed to proceed with the trials in acc....
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.... imposed under this Act. " All the 12 assessments although they related to the years earlier than the year ending on the 31st day of March, 1962, were completed after the coming into force of the 1961 Act. Hence a proceeding for the imposition of penalty in respect of any one of those years had to be and was initiated under the 1961 Act in accordance with clause (g). Clause (f) did not come into play and no penalty was imposed under section 28 of the 1922 Act. That being so, as rightly pointed out by the High Court, section 28(4) was not a bar to the launching of the prosecution as no such provision is to be found either in section 271 or in any other section of the 1961 Act. Section 28(4) says : " No prosecution for an offence agains....
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....gs have to be initiated and the penalty imposed in accordance with the provisions of section 271 of the Act of 1961. " Even clause (1) of article 20 of the Constitution does not help the appellant. It is not post facto legislation which is being pressed into service against him. As pointed out by a Constitution Bench of this court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, at page 1198 : " This article in its broad import has been enacted to prohibit convictions and sentences under ex post facto laws. The principle underlying such prohibition has been very elaborately discussed and pointed out in the very learned judgment of Justice Willes in the well known case of Phillips v. Eyre and also by the Supreme Court of U. S. A.....
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....e 1961 Act to form the basis of a charge against the appellant under section 277 of that Act. The punishment provided in this section is greater than the one engrafted in section 52 of the 1922 Act. To that extent only the appellant would be entitled to press into service the second part of clause (1) of article 20 of the Constitution which says that no person shall : " be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. " It is advisable to discuss and dispose of a new point which arose during the hearing of these appeals. Sub-section (1) of section 297 of the 1961 Act repealed the 1922 Act including section 52. In sub-section (2) no saving s....