2009 (7) TMI 38 - HC - Income Tax

Constitutional Validity of New Provision 271(1B) - Initiation of Penalty Proceedings - Satisfaction of the AO - Retrospective Amendment by Finance Act, 2008 - Held that - Section 271(1B) of the Act is not violative of Article 14 of the Constitution. - The position of law both pre and post amendment is similar, in as much, the Assessing Officer will have to arrive at a prima facie satisfaction during the course of proceedings with regard to the assessee having concealed particulars of income or furnished inaccurate particulars, before he initiates penalty proceedings - Prima facie satisfaction of the Assessing Officer that the case may deserve the imposition of penalty should be discernible from the assessment order - new provision would not debar an assessee from furnishing evidence to rebut the prima facie satisfaction of the Assessing Officer; since penalty proceeding are not a continuation of assessment proceedings. - Due compliance would be required to be made in respect of the provisions of Section 274 and 275 of the Act. New provision held to be valid.

Issues Involved:
1. Constitutionality of Section 271(1B) of the Income Tax Act, 1961.
2. Retrospective application of Section 271(1B) from 01.04.1989.
3. Requirement of Assessing Officer's satisfaction before initiating penalty proceedings.
4. Judicial review and arbitrariness of the impugned provision.

Detailed Analysis:

1. Constitutionality of Section 271(1B) of the Income Tax Act, 1961:
The petitioners challenged the constitutionality of Section 271(1B) of the Income Tax Act, 1961, arguing that it is ultra vires the Constitution of India. They contended that the provision, brought in by the Finance Act, 2008 with retrospective effect from 01.04.1989, removed the requirement for the Assessing Officer to arrive at his own 'satisfaction' during assessment proceedings before initiating penalty proceedings. This was seen as a violation of Article 14 of the Constitution. The court held that Section 271(1B) is not violative of Article 14, emphasizing that the Assessing Officer must still arrive at a prima facie satisfaction during the course of proceedings regarding the concealment of income or furnishing of inaccurate particulars before initiating penalty proceedings.

2. Retrospective Application of Section 271(1B) from 01.04.1989:
The petitioners argued that the retrospective application of Section 271(1B) from 01.04.1989 was arbitrary and violative of Article 14 of the Constitution. The court noted that the legislative history of Section 271 showed that the provision for penalty for concealment of income had remained largely unchanged since the 1922 Act, except for a brief interval in 1987. The court found no cogent reason for the retrospective application from 01.04.1989 but held that it did not create an invidious discrimination or result in a class legislation. The court concluded that the retrospective amendment was within the legislative competence and did not violate Article 14.

3. Requirement of Assessing Officer's Satisfaction Before Initiating Penalty Proceedings:
The petitioners contended that the Assessing Officer must record his satisfaction before initiating penalty proceedings, and this requirement could not be legislatively presumed by creating a fiction. The court examined the legislative history and judicial interpretations, concluding that the prima facie satisfaction of the Assessing Officer must be discernible from the order passed during the course of the proceedings. The court clarified that while the satisfaction need not be recorded in specific terms, it must be apparent from the assessment order. The court emphasized that the impugned provision did not change the requirement for the Assessing Officer's satisfaction but provided that an order initiating penalty cannot be declared bad in law solely because it states that penalty proceedings are initiated if the satisfaction is otherwise discernible from the record.

4. Judicial Review and Arbitrariness of the Impugned Provision:
The petitioners argued that the impugned provision deprived taxpayers of the right to seek judicial review and conferred arbitrary power on the Assessing Officer. The court held that the provision did not foreclose judicial review and that the Assessing Officer's prima facie satisfaction must be discernible from the record. The court rejected the argument that the provision gave arbitrary power to the Assessing Officer, noting that the prima facie satisfaction of the Assessing Officer must be based on material available during the assessment proceedings. The court concluded that the provision was not arbitrary and did not violate Article 14.

Conclusion:
1. Section 271(1B) of the Income Tax Act, 1961, is not violative of Article 14 of the Constitution.
2. The retrospective application of Section 271(1B) from 01.04.1989 is within the legislative competence and does not violate Article 14.
3. The Assessing Officer must arrive at a prima facie satisfaction during the course of proceedings regarding the concealment of income or furnishing of inaccurate particulars before initiating penalty proceedings.
4. Judicial review is not foreclosed by the impugned provision, and the provision does not confer arbitrary power on the Assessing Officer.

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