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TMI Blog1979 (12) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... tember, 1970, requiring the petitioner, inter aria, to show cause why penalty under subsection (3) of section 17 of the Act should not be imposed on the petitioner. The petitioner then filed a reply (annexure B) showing cause against imposition of penalty, in which it was stated, relying on the decision of this Court in Pyarelal v. State of M.P.(1), that mere late filing of return did not render the dealer liable for penalty under section 17(3) of the Act. The assessment order in the present case was passed on 31st March, 1971, in which there was no decision relating to imposition of penalty. 2.. In the meantime, on 6th May, 1971, the M.P. General Sales Tax (Amendment and Validation) Act, 1971 (No. 13 of 1971), hereinafter called the amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and seeks a writ to quash the same. 5.. The only contention of Shri G.M. Chaphekar, the learned counsel for the petitioner, is that the amendment made in the above manner in section 17 of the principal Act by the Amending Act No. 13 of 1971 is ultra vires article 20 of the Constitution. The argument is that this retrospective amendment in the principal Act violates article 20(1) of the Constitution by providing a penalty for an act which did not attract penalty when it was done. The question before us is whether this contention alone advanced in support of this petition is tenable. 6.. Article 20(1) of the Constitution with which alone we are concerned reads as under: "20. (1) No person shall be convicted of any offence except for vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The General Clauses Act defines "offence" to mean "any act or omission made punishable by any law for the time being in force". The word "offence" is similarly defined in section 2(n) of the Code of Criminal Procedure. In Jawala Ram v. State of PepsuA.I.R. 1962 S.C. 1246., it was held that the unauthorised use of canal water is not an "offence" and the imposition of enhanced water charge under the statutory rules is not a "penalty" for such an "offence", since there is no law forbidding the unauthorised user of water. Dealing with the applicability of article 20 of the Constitution in that context, it was held that the word "offence" in the several clauses of article 20 must be understood to convey the meaning given to it in the definition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 20(1) of the Constitution will have application only when a person is subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. This would indicate that commission of an offence and a conviction thereof are necessary in order that the provisions of the article may be attracted. A question has been raised in some cases as to whether the prohibition extends to penalties other than punishments awarded in judicial proceedings. No such question will arise if the word 'penalty' is read with the word 'convicted' in the earlier part of the clause. While the first part of the article bars a conviction, the second part relates to the punishment or sentence that m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion that to reach into the past and provide greater punishment than what the law did when the crime was committed incurred the constitutional prohibition of an ex Post facto law, the court said: "The penalty of the statute was not in punishment of a crime, and it is only to such that the constitutional prohibition applies." So, I. take the view that, even assuming that the penalty has been enhanced under the Act, that would not attract the constitutional inhibition of article 20(1) because the penalty is imposed not as punishment for the commission of an offence, even though the act for which the penalty is imposed is an offence liable to be punished. I, therefore, overrule this contention of the learned Advocate-General." Similar was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er: "Although imposition of penalty under the Income-tax Act is not a punishment for any offence so as to attract article 20 of the Constitution, in our view, the principle underlying article 20 would be applicable to this case, in the absence of any express provision to the contrary." The above extract itself shows that the Division Bench, speaking through Raina, J., clearly stated at the outset that imposition of penalty under the Income-tax Act is not a punishment for any offence so as to attract article 20 of the Constitution. However, Raina, j., then proceeded to say that the principle underlying article 20 would be applicable to the case in the absence. of any express provision to the contrary. In our opinion, these observations o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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