Madhya Pradesh H.C : The applicants herein have been convicted under ss. 276E and 278D r/w s. 269T of the IT Act, 1961 (for short, “the Act”), and sentenced to imprisonment for one day, i.e., till the rising of the Court with fine.

Counsel Appeared

S.C. Bagadia, for the Petitioners : R.L. Jain, for the Respondents

JUDGMENT

N.K. JAIN, J.:

All these revision petitions have been heard as connected matters and are being disposed of by this common order as a common question of law is involved in all these matters.

The applicants herein have been convicted under ss. 276E and 278D r/w s. 269T of the IT Act, 1961 (for short, “the Act”), and sentenced to imprisonment for one day, i.e., till the rising of the Court with fine. The order of conviction and sentence passed by the Additional Chief Judicial Magistrate, Indore, has been affirmed in appeals by the Additional Sessions Judge, Indore.

It is a common ground that s. 276E has been omitted by the Direct Tax Laws (Amendment) Act, 1987, w.e.f. 1st April, 1989. It is curious to note that the complaints against the applicants were filed only a day before the said omission i.e. on 31st March, 1989. The common question of law involved in all these petitions is whether the proceedings against the petitioners could not continue in law in view of the said omission.

It may be clarified here that the substantive offence for which the conviction is recorded is under s. 276E and recourse to s. 278D is taken only for the purpose of convicting applicant No. 1 which is a company for the said offence (under s. 276E). The allegation was that the payments were made by the applicants during the relevant assessment year in cash in violation of s. 269T of the Act. After the amendment Act of 1987, a new provision by way of s. 271E has been inserted which now provides for imposition of penalty for the violation of s. 269T.

5. The controversy projected in these petitions now stands resolved by a Supreme Court decision in the case of Kolhapur Canesugar Works Ltd. vs. Union of India AIR 2000 SC 811, and it is held : “The position is well- known that at common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute book as completely as if it has never been passed, and the statute must be considered as a law that never existed. To this rule, an exception is engrafted by the provisions of s. 6(1). If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in s. 6 or in special Acts may modify the position. Thus, the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceeding shall not continue but a fresh proceeding for the same purpose may be initiated under the new provision.”

6. In the amendment Act of 1987 also no saving clause was provided in favour of pending proceedings. That being so, as held by the apex Court, the pending proceedings against the applicants could not continue under the repealed provisions but a fresh proceeding for imposition of penalty may be initiated under the new provision, i.e., s. 271E.

All these petitions thus succeed and are allowed and the impugned conviction and sentence passed against the applicants by the trial Magistrate and affirmed in appeal, are set aside. As already pointed out above, the Department shall, however, be free to initiate proceedings for imposition of penalty under the new provisions.

This order be retained in Criminal Revision No. 528 of 1997, and a copy each be filed in Criminal Revisions Nos. 529 of 1997, 530 of 1997 and 531 of 1997.

[Citation : 249 ITR 328]