W.P. No. 568 of 2018 IN HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Original Side Shrivardhan Mohta Vs. Union of India & Ors. For Petitioner : Mrs. Manju Agarwal, Advocate Mr. Bajrang Manot, Advocate For Respondent : Mr. Kaushik Chanda, Ld. A.S.G. Mr. D.K. Bhowmick, Advocate Mrs. Debjani Ray, Advocate Ms. Nabonita Karmakar, Advocate Mr. Yogesh Bhatt, Advocate Hearing concluded on : January 28, 2019 Judgment on : February 14, 2019 DEBANGSU BASAK, J.:- petitioner has sought declaration that, provisions of Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 must be applied prospectively with effect from April 1, 2016. petitioner has also sought quashing of notices dated June 13, 2018, September 6, 2018 and sanction for prosecution dated September 17, 2018. Learned Advocate appearing for petitioner has submitted that, petitioner is assessee under Income Tax Act, 1961. search and seizure was carried out by Income Tax Authorities at residence of petitioner on March 7, 2018. During such search and seizure, foreign bank accounts, held by petitioner with HSBC Bank (Foreign Assets), were found. petitioner explained such bank accounts as belonging to deceased mother of petitioner and that, petitioner received such bank accounts as part of his inheritance. notice under Section 153A of Act of 1961 was issued upon petitioner. petitioner was called upon to furnish return of income for assessment years 2009-10 to 2015-16 within 30 days of receipt of such notice. petitioner duly filed return for such assessment years. notice under Section 142(a) of Act of 1961 was received by petitioner. During pendency of assessment proceedings, petitioner approached Settlement Commission for assessment years 2009-10 to 2015-16. Such settlement proceedings did not result in settlement. Settlement Commission declared application of petitioner as invalid. Thereafter, petitioner made application under Section 154 of Act of 1961 for rectification of order of Settlement Commission which was rejected. Assessing Officer proceeded to complete assessment for years 2009-10 to 2015-16 under Section 153A read with Section 143(3) of Act of 1961. foreign bank accounts and amount lying thereat were taken into consideration by Assessing Officer. Assessing Officer raised demands after giving credit to payments made by petitioner during settlement proceedings. authorities initiated proceedings under Section 271(1)(b) and 271(1)(c) of Act of 1961 for penalty. order of Assessing Officer was challenged by petitioner before Appellate Authority. During pendency of assessment proceedings, Act of 2015 came into effect. Since proceedings under Act of 1961 were pending, petitioner could not avail of opportunity to make voluntary disclosure under Act of 2015. petitioner received show cause notices under Act of 2015 to which petitioner replied. Ultimately, authorities purporting to exercise jurisdiction under Act of 2015 granted sanction to prosecute petitioner. Learned Advocate appearing for petitioner has submitted that, Act of 2015 is prospective in nature. Any fiscal statute is prospective in nature. Moreover, given nature of Act of 2015 so far as it allows delinquent to make declaration within time period specified under Act of 2015 and since, petitioner was debarred by statute in availing of such window of opportunity, penal provisions of Act of 2015 should not be applied against petitioner. Learned Advocate for petitioner has drawn attention of Court to show-cause notice dated March 13, 2018 and submitted that, show-cause notice was for launching prosecution under Section 50 and 51 of Act of 2015, since petitioner failed to make disclosure under Section 59 of Act of 2015. Section 71 of Act of 2015 prevented petitioner from making any disclosure under Act of 2015 as at material point of time proceeding under Section 153A of Act of 1961 was pending. She has submitted that, since, petitioner was precluded statutorily from filing declaration under Act of 2015, therefore, there was no failure on part of petitioner to make disclosure under Section 59 of Act of 2015. Consequently, provisions of Sections 50 and 51 of Act of 2015 cannot be invoked against petitioner. She has drawn attention of Court to fact that, petitioner, by writing dated June 19, 2018 replied to such show-cause notice and challenged applicability of Act of 2015 against petitioner. petitioner also submitted legal opinion dated July 18, 2018 with authorities. She has highlighted fact that, petitioner was served show-cause notice dated September 6, 2018 for launching prosecution under Section 51 of Act of 2015. She has drawn attention of Court to fact that, by second show-cause notice, authorities have sought to invoke provisions of Section 51 of Act of 2015 in view of Section 48 of Act of 2015. She has referred to provisions of Section 48, 49, 50, 51 and 71 of Act of 2015 and submitted that, Act of 2015 cannot have retrospective effect. It is to apply from April 1, 2016. petitioner not being guilty of making any violation under Act of 2015 cannot be proceeded thereunder. Moreover, there was no mens rea on part of petitioner for prosecution under Act of 2015. Consequently, petitioner cannot be prosecuted. petitioner cannot suffer double jeopardy. For same period Income Tax Authorities have launched proceedings. authorities under Act of 2015 cannot launch proceedings in respect of self-same violations. In support of her contentions, learned Advocate for 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.). Learned Additional Solicitor General appearing for respondents has submitted that, petitioner is not suffering double jeopardy as sought to be contended. Act of 2015 has been invoked for failure of petitioner to disclose foreign assets in his returns. He has submitted that, petitioner, apart from opportunity to file return under Act of 1961, where petitioner did not disclose foreign assets, had two further opportunities to make true and honest disclosure of foreign assets. One of such opportunity was when petitioner approached Settlement Commission. In Settlement proceedings, petitioner did not make disclosure of foreign assets. Settlement proceedings were dropped as petitioner had failed to make true and honest disclosure of all his assets. other one was when, after search and seizure was conducted, petitioner was allowed one opportunity to file his return. There also, petitioner did not disclose foreign assets. Consequently, there being violations on part of petitioner to disclose foreign assets, provisions of Act of 2015 stand attracted. failure to disclose foreign assets, were subsequent to Act of 2015 coming into effect. Therefore, there is no infirmity in authorities invoking provisions of Act of 2015 against petitioner. Act of 1961 and Act of 2015 operate in different fields so far as quality of proceedings is concerned. Under Act of 1961, assessee is penalized financially while, under Act of 2015, assessee found guilty is punished with imprisonment. Therefore, question of petitioner suffering double jeopardy does not arise. He has interpreted various provisions of Act of 2015 and submitted that, proceeding under Act of 2015 is maintainable against petitioner. Learned Additional Solicitor General for 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 proposition that, element of mens rea is not required to be proved in penalty proceedings under Section 271 of Act of 1961. He has relied upon 2018 SCC Online Supreme Court page 1580 (State of Maharashtra v. Sayyed Hassan) for proposition that, there is no bar to trial or conviction of offender under two different enactments. bar is only to punishment of offender twice for same offence. In facts of present case according to him offences are different. Learned Advocate appearing for 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. writ petition has been heard without inviting affidavits as materials required for consideration are on record. respondents did not opt for filing any affidavit. writ petition raises few issues. writ petition contains issues raised and law points involved. It was for writ petitioner to cite such authorities as writ petitioner deem appropriate in support of his case. In reply, petitioner is afforded opportunity to deal with any points of law that may arise in course of submissions of respondents. In present case question as to whether mens rea is required to be established by prosecution or not in criminal proceeding, can be decided in criminal proceeding itself. Writ Court need not enter into such issue as, today, there is sanction to prosecute without any prosecution being launched. Moreover, there are sufficient materials on record for petitioner to stand trial for violation of provisions of Act of 2015. Therefore, as Writ Court, I need not enter into such arena. Essentially, petitioner is aggrieved by sanction for prosecution granted by order dated September 17, 2018. By such order, authorities have granted sanction to prosecute petitioner under provisions of Act of 2015. petitioner was found to have violated provisions of Section 139(1) and 153A of Act of 1961. search and seizure under Act of 1961 took place against petitioner on March 17, 2015. petitioner was required to file return under Section 153A of Act of 1961. Failure to make disclosure under Section 153A of Act of 1961 is punishable under provisions of Act of 2015. Act of 2015 came into effect from April 1, 2016. Act of 2015 allowed window of opportunity from July 1, 2015 to September 30, 2015 to make disclosures. Notwithstanding such window of opportunity, petitioner had opportunity under Act of 1961 to make true and proper disclosure of foreign assets. petitioner did not do so. It failed to make true and full disclosure after search and seizure and also in Settlement proceedings. Act of 2015 is divided into seven chapters. Section 71 of Act of 2015 provides that Chapter VI will not apply where notice under Section 153A of Act of 1961 has been issued in respect of assessment year. Provisions of taxing statutes are to be strictly construed. Applying such principle to interpretation of Section 71 of Act of 2015, inference is that, Section 71 lays down, that Chapter VI only will not apply to person against whom proceeding under specified provision of Act of 1961 is pending. authorities however have invoked provisions of Section 50 read with Section 55 of Act of 2015 to prosecute petitioner. Both Sections 50 and 55 are in different chapter. Section 50 provides for punishment for failure to furnish any return of income, any information about asset (including financial interest in any entity) located outside India. Admittedly, petitioner is in possession of financial assets located outside India. 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. explanation is inheritance. Inheritance did not prevent him from disclosing. It is just unacceptable excuse. petitioner had opportunity to make disclosure with regard thereto while submitting his return in proceedings under search and seizure. petitioner also had opportunity to disclose such assets before Settlement Commission. petitioner did not avail of any of two opportunities. Those opportunities were subsequent to Act of 2015 coming into effect. Therefore, petitioner failed to furnish in his return of income, information about asset located outside India. It attracts provisions of Section 50 of Act of 2015. He can be proceeded against under Act of 2015. There are sufficient materials on record for proceeding against petitioner under Act of 2015. Section 55 of Act of 2015 provides persons at whose instance, prosecution will be made for offence under Section 49 to Section 53 both inclusive. Rao Shiv Bahadur Singh & Anr. (supra) has dealt with Article 20 of 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. fact scenario in present case is different. petitioner was required to file return after search and seizure proceedings. It did not do so. It also did not make true and proper disclosure in settlement proceedings. It cannot be said that, retrospective effect has been sought to be given to Act of 2015 so far as petitioner is concerned. failure of petitioner to file requisite return was subsequent to Act of 2015 coming into effect. Anwar Ali (supra) has considered issue as to whether Income Tax Authorities were justified in imposing penalty on assessee under Section 28(1)(c) of Act of 1961 in facts of that case. It has held in such context that, contraventions of Section 28 of Act of 1961 may give rise both criminal offence as well as statutory offence. However, if penalty has been imposed under Section 28, no prosecution before Criminal Court shall again lie in respect of same offence. In present case, petitioner is charged with violating provisions of Section 51 of Act of 2015 which is different to that of any provisions of Act of 1961. Suresh Seth (supra) has considered provisions of Wealth Tax Act and has held that, assessee is not required to file return during every month after last day to file is over under Section 18 of Wealth Tax Act. It has interpreted provisions of Section 18 of Wealth Tax Act. provisions of Act of 2015 are different. Shiv Dutt Rai Fateh Chand & Ors. (supra) has dealt with provisions for penalty under Central Sales Tax Act, 1956. Again, provisions of Act of 2015 are different. M/s. Gujarat Travancore Agency, Cochin (supra) has considered Sections 271 and 276C of Act of 1961 and held that, in most cases of criminal law, intention of legislature is that penalty should serve as deterrent. creation of offence by statute proceeds on assumption that society suffers injury by act or omission of defaulter and that deterrent must be imposed to discourage repetition of offence. In proceeding under Section 276 intention of legislature is to emphasize fact of loss of revenue and to provide remedy for such loss, although no doubt element of coercion is present in penalty. It goes on to say that, there is nothing in Section 271 which requires that mens rea must be proved before penalty can be reviewed under that provision. Sayyed Hassan (supra) has held that, there is no bar to trial or conviction of offence under two different enactments. bar is only to punishment of offender twice for same offence. Where act or omission constitutes offence under two enactments, offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for same offence. In facts of present case, Act of 1961 does not impose punishment of imprisonment while Act of 2015 does. In such circumstances, it cannot be said that, petitioner has been sought to be punished twice for same offence. In view of discussions above, I find no merit in present writ petition. W.P. No. 568 of 2018 is dismissed. No order as to costs. [DEBANGSU BASAK, J.] Shrivardhan Mohta v. Union of India & Or