TaxTMI 
TaxTMI 
2019 (2) TMI 1001
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....re found. The petitioner explained such bank accounts as belonging to the deceased mother of the petitioner and that, the petitioner received such bank accounts as a part of his inheritance. A notice under Section 153A of the Act of 1961 was issued upon the petitioner. The petitioner was called upon to furnish return of income for the assessment years 2009-10 to 2015-16 within 30 days of receipt of such notice. The petitioner duly filed return for such assessment years. A notice under Section 142(a) of the Act of 1961 was received by the petitioner. During the pendency of the assessment proceedings, the petitioner approached the Settlement Commission for the assessment years 2009-10 to 2015-16. Such settlement proceedings did not result in a settlement. The Settlement Commission declared the application of the petitioner as invalid. Thereafter, the petitioner made an application under Section 154 of the Act of 1961 for rectification of the order of the Settlement Commission which was rejected. The Assessing Officer proceeded to complete the assessment for the years 2009-10 to 2015-16 under Section 153A read with Section 143(3) of the Act of 1961. The foreign bank accounts and the a....
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....use notice and challenged the applicability of the Act of 2015 against the petitioner. The petitioner also submitted a legal opinion dated July 18, 2018 with the authorities. She has highlighted the fact that, the petitioner was served a show-cause notice dated September 6, 2018 for launching a prosecution under Section 51 of the Act of 2015. She has drawn the attention of the Court to the fact that, by the second show-cause notice, the authorities have sought to invoke the provisions of Section 51 of the Act of 2015 in view of Section 48 of the Act of 2015. She has referred to the provisions of Section 48, 49, 50, 51 and 71 of the Act of 2015 and submitted that, the Act of 2015 cannot have retrospective effect. It is to apply from April 1, 2016. The petitioner not being guilty of making any violation under the Act of 2015 cannot be proceeded thereunder. Moreover, there was no mens rea on the part of the petitioner for prosecution under the Act of 2015. Consequently, the petitioner cannot be prosecuted. The petitioner cannot suffer double jeopardy. For the same period Income Tax Authorities have launched proceedings. The authorities under the Act of 2015 cannot launch proceedings i....
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....intainable against the petitioner. 7. Learned Additional Solicitor General for the respondent has relied upon 1989 Volume 3 Supreme Court Cases page 52 (M/s. Gujarat Travancore Agency, Cochin v. Commissioner of Income Tax, Kerala, Ernakulam) for the proposition that, element of mens rea is not required to be proved in penalty proceedings under Section 271 of the Act of 1961. He has relied upon 2018 SCC Online Supreme Court page 1580 (State of Maharashtra v. Sayyed Hassan) for the proposition that, there is no bar to a trial or conviction of an offender under two different enactments. The bar is only to the punishment of the offender twice for the same offence. In the facts of the present case according to him the offences are different. 8. Learned Advocate appearing for the petitioner has submitted that, mens rea is required to be established in any criminal proceedings. She has sought to rely upon few authorities for such proposition in reply. 9. The writ petition has been heard without inviting affidavits as the materials required for consideration are on record. The respondents did not opt for filing any affidavit. The writ petition raises few issues. The writ petition ....
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....l not apply to a person against whom a proceeding under the specified provision of the Act of 1961 is pending. The authorities however have invoked provisions of Section 50 read with Section 55 of the Act of 2015 to prosecute the petitioner. Both Sections 50 and 55 are in a different chapter. Section 50 provides for punishment for failure to furnish any return of income, any information about an asset (including financial interest in any entity) located outside India. Admittedly, the petitioner is in possession of financial assets located outside India. The petitioner admits to have four bank accounts with HSBC Singapore in foreign currency such as Singaporean Dollar, Great Britain Pound, U.S. Dollars and Australian Dollars. The explanation is inheritance. Inheritance did not prevent him from disclosing. It is just an unacceptable excuse. 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 t....