TMI Blog2019 (2) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 amount lying thereat were taken into consideration by the Assessing Officer. The Assessing Officer raised demands after giving credit to the payments made by the petitioner during the settlement proceedings. The authorities initiated proceedings under Section 271(1)(b) and 271(1)(c) of the Act of 1961 for penalty. The order of the Assessing Officer was challenged by the petitioner before the Appellate Authority. 3. During the pendency of the assessment proceedings, the Act of 2015 came into effect. Since proceedings under the Act of 1961 were pending, the petitioner could not avail of the opportunity to make a voluntary disclosure under the Act of 2015. The petitioner received show cause notices under the Act of 2015 to which the petitioner replied. Ultimately, the authorities purporting to exercise juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in respect of the self-same violations. In support of her contentions, learned Advocate for the petitioner has relied upon All India Report 1953 Supreme Court page 394 (Rao Shiv Bahadur Singh Anr. v. State of Vindhya Pradesh), All India Report 1968 Calcutta page 355 (Commissioner of Income-tax (Central) Calcutta v. Anwar Ali), 1981 Volume 2 Supreme Court Cases page 790 (Commissioner of Wealth Tax, Amritsar v. Suresh Seth) and 1983 Volume 3 Supreme Court Cases page 529 (Shiv Dutt Rai Fateh Chand Ors. v. Union of India Anr.). 6. Learned Additional Solicitor General appearing for the respondents has submitted that, the petitioner is not suffering double jeopardy as sought to be contended. The Act of 2015 has been invoked for the failure of the petitioner to disclose the foreign assets in his returns. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at, 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 contains the issues raised and the law points involved. It was for the writ petitioner to cite such authorities as the writ petitioner deem appropriate in support of his case. In reply, the petitioner is afforded an opportunity to deal with any points of law that may arise in course of the submissions of the respondents. In the present case the question as to whether mens rea is required to be established by the prosecution or not in the criminal proceeding, can be decided in the criminal proceeding itself. A Writ Court need not enter into such an issue as, today, there is a sanction to prosecute without any prosecution being launched. Moreover, there are sufficient materials on record for the petitioner to stand trial for violation of the provisions of the Act of 2015. Therefore, as a Writ Court, I need no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 13. Rao Shiv Bahadur Singh Anr. (supra) has dealt with Article 20 of the Constitution of India. It has held that, ex post facto laws which retrospectively create offences and punish them are bad being highly inequitable and unjust. The fact scenario in the present case is differen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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