TMI Blog1974 (11) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 5,000 under section 18A(9) read with section 28(1)(c) of the Indian Income-tax Act, 1922 (hereinafter referred to as " 1922 Act "). The penalty was imposed because the assessee had not filed an estimate of his income under section 18A(3). When the matter finally went up in appeal to the Appellate Tribunal, the quantum of penalty was reduced to Rs. 1,000. Subsequently, the Income-tax Officer proceeded to reopen the assessment under section 34 of the 1922 Act. He assessed Sri Ramchandra Singh on a total income of Rs. 98,110 which was later on reduced by the Appellate Assistant Commissioner by Rs. 19,704 on appeal by the assessee. In view of the fresh assessment, the Income-tax Officer again started a proceeding against the assessee under section 18A(9) for non-filing of the estimate of his income as required under section 18A(3). The Income-tax Officer thereafter levied a penalty of Rs. 1,600 on the assessee. When the matter was taken up before the Appellate Assistant Commissioner, he was of the view that for the same default the assessee could not be penalised twice over. He, therefore, vacated the order of the Income-tax Officer levying the revised penalty on the assessee. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Assistant Commissioner and the Tribunal accepted this contention on behalf of the assessees and took the view that the rule of double jeopardy was applicable on the facts of the two cases and the assessees could not be penalised twice for the same offence. In my opinion, both the Appellate Assistant Commissioner and the Tribunal have given a wrong approach to the matter. The rule of double jeopardy applies to criminal cases and that rule cannot be made applicable in respect of penalties for the various defaults under the taxation statute. The point, however, which falls for consideration is whether any penalty could be imposed upon the assessee for non-submission of returns on the basis of reassessment under section 34 of the 1922 Act or under section 147 of the 1961 Act. In order to decide this question it will be necessary to refer in some of the provisions of the 1922 Act as well as of the 1961 Act. Section 18A of the 1922 Act was inserted by Act 11 of 1944. Sub-section (3) of section 18A read as follows : " Any person who has not hitherto been assessed shall, before the 15th day of March in each financial year, if his total income of the period which would be the prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ows : " 34. (1) If-- (a) the Income-tax Officer has reason to believe that by reason of the omission of failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits at gains chargeable to income-tax have escaped assessment for that year, or have been under-assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been computed, or (b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year, or have been under-assessed, or assessed at too low a rate, or have been made the subject of excessive relief under this Act, or that excessive loss or depreciation allowance has been computed, he may in cases falling under clause (a) at any time within eight years and in cases falling under clause (b) at an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used. It is clear from the various provisions of the 1922 Act as well as the 1961 Act that a penalty can be imposed for non-furnishing of the estimate of advance tax only in connection with the regular assessment under section 23 of the 1922 Act or regular assessment under section 143 or section 144 of the 1961 Act. As the proceeding for assessment or reassessment under section 34 of the 1922 Act or under section 147 of the 1961 Act is not a proceeding in connection with the regular assessment, no penalty can be imposed for non-furnishing of an estimate of the advance tax payable by the assessee. I am fortified in my view by a Bench decision of the Kerala High Court in Gates Foam Rubber Co. v. Commissioner of Income-tax. On behalf of the revenue reliance was placed on the decision of the Supreme Court in N. A. Malbary and Bros. v. Commissioner of Income-tax. In that case the assessee was a firm which carried on business at Surat and had a branch at Bangkok. In its return for the assessment year 1951-52, it did not include the profits of the Bangkok business. It did not also comply with the notice of the Income-tax Officer for the production of the accounts relating to the Bangkok ..... X X X X Extracts X X X X X X X X Extracts X X X X
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