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Judgment
Ayling, J.—The accused in this case, were prosecuted for an offence u/s 39(d) of the Indian Income Tax Act for failure to produce their
accounts in obedience to a notice issued by the Collector of Madras.
They have been acquitted by the 4th Presidency Magistrate on the sole ground that the prosecution is barred by the second proviso to Section
24 of the same Act, which runs thus ""provided further that no prosecution for an offence against this act shall be instituted in respect of the same
facts on which a penal assessment is made under this section.
The only question for our decision is whether the Magistrate has rightly interpreted the section as barring the prosecution in this case.
In my opinion he was clearly wrong. Exhibit VIII of 21st March 1919 is the order imposing penal assessment on the accused. It does not state
the facts on which it was based but these must be deduced from the Collector''s previous letter Exhibit V of 13th March 1919 which runs as
follows:
In your D return dated the 12th August 1918, you showed your income for 1917-1918 as Rs. 18,836-12-0 but you did not produce your
accounts before the special Income Tax officer when he called upon you to do so. On the best information that I could secure I have estimated
your income at Rs. 60,000 and have assessed you on that figure. I have thus reason to suppose that you have deliberately returned your income at
less than its real amount. I hereby require you u/s 24 of Act VII of 1918 to appear before me at 12 noon on the 19th March 1919 with a written
statement showing cause why you should not be required to pay penal assessment at a rate exceeding double the rate that would otherwise have
been payable on the difference between the income of Rs, 18, 836-12-0 shown in your return and Rs. 60,000 on which I have assessed you to
Income Tax for 1918-1919.
Now it is perfectly true that the accused''s failure to produce their accounts is set out in the letter, and was, as the Magistrate says, a fact before
the Collector at the time he wrote this letter and when he levied the penal assessment. But it is equally clear that this was not the fact on which the
assessment was made. The letter begins by reciting that accused had returned their income at Rs. 18,000 odd. It then adds (1) that they have failed
to produce their accounts in support of their return and (2) that the Collector''s independent enquiries disclose the fact that their real income was
Rs. 60,000. The Collector then proceeds. ""I have thus reason to suppose that you have deliberately returned your income at less than its real
amount"" and on this calls on them to show cause why they should not be required to pay penal assessment. The failure to produce accounts may
have been one reason why the Collector preferred the result of his own enquiries to the assessee''s return; but it is the falsity of the return not the
failure to produce the accounts which is the fact on which the penal assessment is made.
Indeed Section 24 makes it clear that it is only a return of income below its real amount which could be the basis of an order for penal
assessment. The Collector has to be satisfied that the assessee has returned his income below its real amount either by concealing particulars of it
or deliberately furnishing inaccurate particulars.
The proviso though couched in general terms appears to be intended to bar a prosecution u/s 40 of the Act not one u/s 39 which deals with
omissions of a totally distinct nature to the act with which Section 24 is concerned.
I would set aside the Magistrate''s order and direct him to restore the case to file and dispose of it according to law.
Coutts Trotter, J.
I agree; but as the case is of some public importance I will state my reasons in my own words. The Respondents were prosecuted before the
4th Presidency Magistrate under the Indian Income Tax Act (VII of 1918). He acquitted the accused on the view that the Second proviso to
Section 24 of the Act barred the prosecution. Government appeals against the acquittal.
The (acts can be stated very briefly. The respondents are a firm carrying on business in Madras and they were called upon in the ordinary way
by the Collector to furnish a return of their income for purposes of assessment for Income Tax. On the 12th August 1918 they furnished a return
showing an income of Rs. 18, 836-12-0. The Collector was not satisfied of the truth of the return and on 4th February 1919, notice was given to
the respondents to produce their account books u/s 18 of the Act. This notice and a subsequent one calling upon the firm to show cause why they
should not be prosecuted u/s 39(d) of the Act were disregarded and the books were not produced. The case of the respondents as to that on the
merits is that the books required for production were in the hands of partners out of Madras who could not be communicated with in time. That
defence will of course be open to them hereafter.
The Collector had meanwhile given the respondents notice by a letter of 12th March 1919 that he disbelieved the truth of their return and had
estimated their income at Rs. 60,000 and that he called upon them to show cause on 19th March why they should not pay a penal assessment on
the sum between the figure returned and that found by the Collector to be the true one. On the 21st March he passed against the firm an order
levying a penal assessment of two annas in the rupee on the difference between the actual return of Rs. 18,836-12-0 and what he held to be the
true figure of Rs. 60,000. This he is empowered to do by Section 24 of the Act and no question arises as to it before us.
Meanwhile he had on the 12th March issued proceedings directing the prosecution of the respondents for failure to produce their books a
power vested in him by Section 41 of the Act. This is the case that has been dismissed by the Magistrate on a ground of law and that is the sole
matter that is before us.
The Penal section is quite clear. (Section 39) "" If a person fails without reasonable cause or excuse (d) to produce on or before the date
mentioned in a notice u/s 18"" (which was admittedly duly given) "" such accounts and documents as are referred to in the notice, he shall be
punishable with a fine.
But it is said that these proceedings are barred by the fact that the respondents have already been punished u/s 24 of the Act by the Penal
assessment made on the 21st March. Section 24 enables the Collector to make such an assessment in cases where he finds that the assessee has
concealed particulars of his income or has deliberately furnished inaccurate particulars of such income and has thereby returned it below its real
amount. Then follows this Proviso "" Provided that no prosecution for an offence against this act shall be instituted in respect of the same facts an
which a penal assessment is made under this section.
The case for the respondents is that it is sought to punish them doubly by a penal assessment and a prosecution on the same facts and the
learned Presidency Magistrate gave effect to that contention. He was clearly led to do so on his view that the Collector''s letter, of the 12th March
1919 (Ex. V) treated the withholding of the books as a reason for the penal assessment which he then threatened. I think this view is wholly
fallacious. The Collector directed a penal assessment on the only ground open to him under the Act viz., that the respondent had made a false
return. He had three considerations which led him to that conclusion and has clearly indicated them in his letter Ex. V They had returned a figure of
Rs. 18,836-12-0, he had information that then true income was Rs. 60,000 and they had not produced their books which would have established
their case if it was a true one The last fact was merely based as evidence of the falsity or'' their return they were not and could not have been
penally assessed for non-production of their books. This prosecution is not for a false return of income; they could have been prosecuted for that
offence u/s 40 of the Act and then a previous penal assessment would doubtless have been a bar. But they are now prosecuted on a definite
allegation of withholding books which is at most a step to and a false return to get through; it is not even a necessary step, because a man may
make a false return who has no books either to produce or to withhold. Conversely a man might withhold his books and render himself liable to
punishment under b. 39 without taking the further step of sending in a false return. I conceive the policy of the Statute to be to provide by Section
39 a punishment for any of the steps likely to be adopted by a fraudulent assessee to impede the Collector in a just estimate of his true income and
to provide an alternative remedy of punishment u/s 40 or penal assessment u/s 24 for an actual false return. If he commits one of the former
offences he may be punished for it though he does not commit the latter: if he commits the latter he may be punished for it in One of two ways and
one only. But if he commits both he may be separately punished for each. Perhaps the clearest way to put it is by an illustration. Suppose a, man to
have committed an offence u/s 39 by withholding his books and to have been prosecuted and convicted for it before he made a return of his
income as he clearly might be. Suppose that subsequently he returns his income at a figure found to be false could anyone maintain that his
conviction u/s 39 was a bar either to his being penally assessed u/s 24 or convicted u/s 40.