Law: Income Tax Act, 1922

Section: 28,28(4),52

[Indian Income Tax Act, 1922 (XI of 1922)].......Sections 28(4),52--Penalty-Prosecution-offence-False declaration made in return under Income Tax Act of 1922 Penalty imposed under Income Tax Act of 1961 after submission of revived return-Prosecution whether Saved by section 28(4) of 1922 Act-Held no-offence-Whether under the old Act and not under the New Act-Held yes-Constitution of India, Art, 20(1). Section 28(4) of the Indian Income Tax Act, 1922, which provides that "no prosecution for an offence against this Act shall be instituted in respect of the same facts on which 11 penalty has been imposed under this section", does not bar the institution of a prosecution for an offence against the 1922 Act or the 1961 Act when a penalty has been imposed not under section 68(1) of the 1922 Act but under section 271(1) of the 1961 Act. Section 28(4) does not obliterate the factum of the commission of an offence under Section 52 of the 1922 Act and does not transmute the offence into an innocent act because of the imposition of penalty under section 28. Such imposition merely barred the prosecution for the trial end conviction of the commission of the offence. Where penalty is imposed under section 211 of the 1961 Act, launching of the prosecution becomes permissible and is not hit by article 20(1) of the Constitution of India. The accused would be entitled to rely upon article 20(1) only to the extent of the awarding of the lesser punishment under section 52 of the 1922 Act. Where a false statement is made in a declaration in a return submitted under the 1922 Act prior to the coming into force of the 1961 Act it is not correct to take recourse to Section 297(2)(h) of the 1961 Act to make the offence come under Section 277 of the 1961 Act. Cases referred to Baliah (T.S.) v. T. S. Rangachari (1969) 72 ITR 787 ; (1969) 3 SCR 65 Calder v. Bull (3 Dallas 386 : 1 L Ed 648) Z Jain Brothers v. Union of India (1970) 3 SCR 253 ; (1970) 77 ITR 107; Phillips v. Eyre (1870) 6 QBD I (QB) ; and Rao Shiv Bahadur Singh v. State of Vindhya Pardesh (1953) SCR 1188 Appeals by special leave from the and order dated Angus 18, 1970, of the Rajasthan High Court in S. B. Criminal Revisions…

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