M.R.A. Ansari, J.
(1) The petitioner herein Shri G. C. Sharma was directed by a notice dated 29th April, 1059 issued under section 22(2) of the Income-tax Act, 1922 (heareinafter referred to as the Old Act) to file his return of income for the assessmentyear 1959-1960. the relevant previous year, being the year ending 3 1/03/1959. In compliance with this Ilnotice the petitioner filed thereturn on 28/07/1962 declaring an income of Rs. 43,253.00. Duringthe course of the assessment proceedings, it was found that the petitioner had claimed allowance for an expenditure of Rs. 18,000.00 representing .payment made to Modern Sanitations which accordi: g to the petitioner was an expanditur incurred solely and exclusively for the purpose of the petitioner's business. The petitioner also filed some documents by way of evidence in support of this claim. The Income taxOfficer was of the view (i) that the petitioner's claim was false (ii) thatthe petitioner had in fact nto made any payment of Rs. 18,000.00 toModern Sanitations (iiij that the documents filed by the assessed insupport of this claim were fabricated by him and (iv) that the petitioner was nto entitled to the deductions claimed by him in computing hisincome. The assessment was made on a total income of Rs. 82,000.00.This assessment was made on 30/03/1964 under section 143(3) ofthe Income-tax Act, 1961 (hereinafter referred to as the New Act).While completing the assessment the Income-tax Officer also directedthe issue of a notice under section 274 read with section 273 of the NewAct and section 274 read with section 271 of the New Act to the petitioner. As in the opinion of the Income-tax Officer the minimumpenalty impossable against the petitioner exceeded a sum of Rs. 100.00he referred the assessed's case to the inspecting Assistant Commissionerunder section 274 of the Act.
(2) While these proceedings under sections 274 read with section 273 of the New Act and section 274 read with section 271 of the NewAct were pending before the Inspecting Assistant Commissioner theIncome Tax Officer also filed a complaint against the petitioner in theCourt of the Sub Divisional Magistrate New Delhi under section 277 of theNew Act and under section 193, 467 and 471 of the Indian Penal Code.It is these Criminal Proceedings pending in the court of the Sub Divisional Magistrate, New Delhi that the petitioner seeks to challenge inthis petition filed under Articles 226 and 227 of the Constitution ofIndia.
(3) It may also be stated at this stage that the petitioner hadfiled an appeal before the appellate Assistant Commissioner againstthe assessment order passed by the Income-tax Officer on 30/03/1964 in respect of the assessment year 1959-60. That appeal is stillpending. As already stated, by the time the petitioner filed the pre-sent petition before this Court, proceedings under S. 274 read with S. 273 of the New Act and S. 274 read with S. 271 of the New Actwere still pending. But subsequent to the filing of this petition IT would appear that the penalty proceedings under S, 274 read with S. 273 of the New Act were dropped and the proceedings under S. 274 read with S. 271 of the New Act were disposed off and the InspectingAssistant Commissioner levied a penalty of Rs. 28,000.00 against the petitioner under S. 271(1)(c) of the New Act. The petitioner preferredan appeal to the Income-Tax Appellate Tribunal against this order ofthe Inspecting Assistant Commissioner and while confirming the levyof the penalty the said Tribunal reduced the quantum of the penaltyto Rs. 10,000.00. The petitioner did nto file any reference applicationeither before the appellate Tribunal or before this Court against thesaid order of the Appellate Tribunal. The said order of the Tribunallevying a penity of Rs. 10,000.00against the petitioner under S. 271(1)(c) ofthe New Act has, thereforee., become final. As a matter of fact the pet-itioner is nto seeking to challenge the said order of the Tribunal in thepresent writ proceedings. As already stated it is only the Criminalproceedings in the court of the S.D.M. New Delhi that are being challenged by the petitioner.
(4) The first ground on which these Criminal Proceedings havebeen challenged is that the assessment itself should have been madeunder S. 23(3) of the Old Act as the return filed by the petitioner wasin compliance with the notice under S. 22 (2) of the Old Act and theassessment proceedings should be deemed to have been commencedunder the provisions of the Old Act and that if the assessment wasmade under the provisions of Old Act, then under S. 28 of the Old Act,the petitioner could nto be subject to a criminal prosecution in respectof the same facts on which the penalty h:.d been imposed. The petitioner's contention is clearly untenable in. view of the provisions of S. 297(2)(b) of the New Act which are as follows:-
'WHERE a return of income is filed after the commencementof this Act otherwise then pursuance of a notice under section 34 of the repealed Act by any person for the assessment year endingon the 31st day of March, 1962, or any earlier year, the assessmentyear shall be made in accordance with theprocedure specified in this Act.'
(5) In the present case the asessee had filed the return of income forthe assessment year 1959-60 on 7/08/1962 i.e. after the commencement of the New Act and the assessment for this year, has necessarily tobe made under the New Act. The fact that a notice under S. 22(2)was issued to the petitioner prior to the commencement of the NewAct is wholly immaterial. Even if it is assumed that the issue of thenotice Under S. 22(2) of the Old Act amounts to commencement of theassessment proceedings for the assessment year 1959-61), the assessmenthas still to be made under the New Act, if the return of income isfiled after the commencement of the New Act. Clause (c) of S. 297(2) will nto apply to the petitioner's case because it refers only to 'anyproceeding pending on the commencement of this Act before anyIncome-tax authority the Appellate Tribunal or any court, by way ofappeal reference of revision.' It is nto any proceeding pending onthe commencement of the Act before the Income-tax Authority Appellate Tribunal or Court that has to be disposed of under the Old Actbut it is only a proceeding by way of appeal, reference or revisionwhich was pending on the commencement of the Old Act that has tobe disposed of under the Act. The offences are alleged to have beencommitted after the repeal of 1922 Act and lh6l Act does nto barprosecution even if penalty is imposed. The further contention that If the assessment was made under the Old Act the penalty for concealmentof income should also have beer, levied under section 28(l)(c) of the OldAct also cannto be accepted in view of the decision of Division Bench bythis Court in Civil Writ Petition No. 247 of 1967 decided on 25/02/1969.
(6) The next contention urged on behalf of the petitioner is thatsection 277 of the New Act will nto apply to the petitioner as the petitioner had nto made any statement in any verification under the NewAct, on the basis of which he is being prosecuted as the statement in theverification was contained in the return of the income filed by him underthe old Act. First of all section 2/7 makes no reference to any returnof income filed under the New Act. It refers to a statement in any verification under the New Act and such a statement in any verification neednto thereforee necessarily be made in the return of income filed by the petitioner. Secondly the return of income filed by the petitioner on 7/08/1962 must be deemed to be a return filed under the New Act.
(7) The filing of the return of income is a part of the procedure forascertaining and imposing liability upon the tax payer. thereforee theretarn of income was filed under the provisions of the New Act and section 277 of the New Act is applicable to any statement in such a return.
(8) Thirdly section 277/15 also applicable in cases where a persondelivers an account or statement which is false even otherwise than inthe return of income filed by him. In other words, if a person deliversan account of statement which is false during the course of the assessment proceedings under the New Act, he comes under the mischief ofsection 277.
(9) The petitioner is being prosecuted for offences under the IndianPenal Code in addition to an offence under section 277 of the New Act.Whatever the petitioner's objection might be with regard to the prosecution under section 277 of the New Act, he cannto challenge the validityof his prosecution for offences under the Indian Penal Code because underthe provisions of the New Act, unlike under section 28 of the Old Act, aperson can be penalised under section 271 of the New Act as wellasprosecuted for an offence in respect of the same facts.
(10) There are no valid grounds thereforee to interfere at this stagewith the Criminal Proceedings pending against the petitioner in the courtof Sub Divisional Magistrate, New Delhi.
(11) The petition is dismissed.
S.K. Kapur, J.
(12) I agree that the petition should be dismissed.