Judgment :- 1. This is an application for the issue of an appropriate writ for quashing an order imposing a penalty upon the petitioner under S.271 of the Indian Income-tax Act 1961, hereinafter referred to as the Act. For the assessment year 1954-55, the petitioner did not file her return. After the close of the year in question the Income-tax Officer found in dealing with the assessment of her son Sri M. K. Mohammed Kunji, that there were certain deposits in the name of the petitioner in a Bank. As the Income-tax Officer had reason to believe that by reason of the failure on the part of the assessee to make a return, her income chargeable to income-tax for the year had escaped assessment, he issued a notice under S.34 (1) (a) of the repealed Act calling upon the petitioner to file a return of the escaped income. A return was filed by the petitioner and an assessment was made under S.23 (3) read with S.34 (1) (a) of the Income-tax Act, 1922. The petitioner filed an appeal against the assessment order to the Appellate Assistant Commissioner. That appeal was dismissed on 211963. Against this order she filed an appeal before the Appellate Tribunal and the Appellate Tribunal by its order dated 29 51964 allowed the appeal in part. As the petitioner deliberately concealed the particulars of her income the 2nd respondent referred the case to the 1st respondent as the minimum penalty that will have to be imposed would exceed Rs. 1,000. The 1st respondent thereafter issued a notice under S.274 (2) read with S.271 of the Act calling upon the petitioner to show cause why a penalty should not be imposed. The petitioner gave an explanation. After considering the explanation the 1st respondent passed the order impugned in this case imposing upon the petitioner a penalty of Rs. 5,896 on the ground that the petitioner has deliberately concealed the particulars of her income. Ext. P-1 is a copy of that order. The petitioner filed an appeal against Ex. P-1 order before the Appellate Tribunal, Madras. It is slated that the appeal has not been disposed of. The order imposing the penalty was followed by a notice demanding the amount. The petitioner questions the validity of Ext. P-1 order on various grounds. 2. Ext. P-1 is a copy of that order. The petitioner filed an appeal against Ex. P-1 order before the Appellate Tribunal, Madras. It is slated that the appeal has not been disposed of. The order imposing the penalty was followed by a notice demanding the amount. The petitioner questions the validity of Ext. P-1 order on various grounds. 2. The main submissions on behalf of the petitioner were: (1) that no proceedings could have been started under S.271 of the Act as under S.297 of the Act proceedings for the imposition of penalty could only be initiated under the repealed Act of 1922 and therefore the proceedings in the instant case ought to be quashed, and (2) that the petitioner is being subjected to a greater penalty than that which was in force at the time of the commission of the offence in that the petitioner stands in danger of being prosecuted under the Act from which he was immune under S.28 (4) of the Income-tax Act, 1922. 3. As regards the contention that since there was a reduction in the assessable income of the petitioner by the order of Appellate Tribunal, the order impugned requires reconsideration, I need only say that as the petitioner has already filed an appeal against the order imposing the penalty, it is open to the appellate authority to consider the question whether any modification in the order appealed against is necessary in view of the fact that there has been a reduction in the assessable income of the petitioner by the appellate tribunal. 4. The learned Advocate General, appearing for the petitioner submitted that proceedings for imposition of penalty upon the petitioner could be taken only under the repealed Act & that the proceedings taken under the Act were incompetent. In support of this contention he relied on S.297 (2) (d) of the Act which reads: "Where in respect of any assessment year after the year ending on the 31st day of March, 1940. In support of this contention he relied on S.297 (2) (d) of the Act which reads: "Where in respect of any assessment year after the year ending on the 31st day of March, 1940. (i) a notice under S.34 of the repealed Act had been issued before the commencement of this Act, the proceedings in pursuance of such notice may be continued and disposed of as if this Act had not been passed; (ii) any income chargeable to tax had escaped assessment within the meaning of that expression in S.147 and no proceedings under S.34 of the repealed Act in respect of any such income are pending at the commencement of this Act, a notice under S.148 may, subject to the provisions contained in S.149 or S.150, be issued with respect to that assessment year and all the provisions of this Act shall apply accordingly;" The assessment proceedings in the case were completed on 15 91962 and therefore the learned Advocate General submitted that since the assessment proceedings are in respect of an year after the year ending 31st March 1940, the proceedings for the imposition of a penalty can be initiated only under the repealed Act. The argument of the learned Advocate General was that though clause (d) of S.297 speaks only of a notice under S.34 of the repealed Act the proceeding for imposition of penalty is really a part of the proceeding under S.34 of the repealed Act, and therefore proceedings for the imposition of penalty would also come within the ambit of clause (d) (i). I am not satisfied that this is the correct interpretation of that clause. Clause (g) of sub-section (2) of S.297 reads as follows: 'any proceeding for the imposition of a penalty in respect of any assessment for the year ending on the 31st day of March 1962, or any earlier year, which is completed on or after the 1st day of April 1962, may be initiated and any such penalty may be imposed under this Act;" From this clause it appears to me that proceedings for imposition of penalty in respect of any assessment for the year ending on 31st March 1962 or any earlier year which is completed on or after the Ist day of April 1962, shall be under the Act. As the assessment was for the assessment year 1954-55 and as it was completed after April 1962, the proceeding for imposition of penalty under the Act was perfectly competent. It therefore appears to me that the proceedings for the imposition of penalty under S.271 of the Act are not open to attack. 5. The learned Advocate General next submitted, that though under S.52 of the Income-tax Act of 1922, concealment of the particulars of income by an assessee was an offence punishable with simple imprisonment or with fine or with both if a penalty was imposed upon an assessee under S.28 of that Act a prosecution upon the same facts could not have been launched for the commission of an offence, as S.28(4) expressly prohibited it, but that under the Act, since there is no such prohibition, a prosecution can be launched on the same facts even after the imposition of a penalty, as S.271 of the Act does not prohibit it, and that this would be a violation of the provisions of Art.20(1) of the Constitution. The learned Advocate General contended that since no prosecution could have been launched against the petitioner under the repealed Act if a penalty had been imposed upon her, no prosecution could be launched against her, as a penalty is imposed upon her under S.271 of the Act, even if that section does not contain a provision similar to that in S.28(4) of the repealed Act. In other words, the argument was that as Art.20(1) of the Constitution prohibits the imposition of a penalty greater than that which might have been imposed upon the petitioner under the law in force on the date of the commission of the offence, she is not liable to be prosecuted, as a penalty has already been imposed upon her on the same facts. The answer to this contention is two-fold. In the first place the petitioner is not being subjected to a greater penalty. No prosecution has been started against her. The department has not taken any steps in that direction. Therefore it is not necessary for me to make a pronouncement upon this question at this stage. The answer to this contention is two-fold. In the first place the petitioner is not being subjected to a greater penalty. No prosecution has been started against her. The department has not taken any steps in that direction. Therefore it is not necessary for me to make a pronouncement upon this question at this stage. But the learned Advocate General referred me to the decision of the Supreme Court in K. K. Kochunni v. State of Madras (A. I. R.1959 S. C. 725, 731) and submitted that it is open to the petitioner to approach this court for a declaration under Art.226 of the Constitution that she is not liable to be prosecuted as there is no provision in the Act corresponding to S.28(4) of the Act of 1922 even though no steps have been actually taken for that purpose. The learned Advocate General also cited the cases of State of Bombay v. United Motors (India) Ltd., (A. I. R.1953 S. C. 252) and Himmatlal H, Mehta v. State of Madhya Pradesh (A. I R.1954 S. C. 403) in support of his contention. I do not think that these cases have any application to the facts of this case. In all these cases the statutes impeached proprio vigore imposed liabilities on persons or changed their status which warranted the invocation of the jurisdiction under Art.226. That apart, I do not think that there is any substance in the contention that the petitioner stands in danger of being prosecuted for an offence under S.277 of the Act. S.277 reads as follows: "If a person makes a statement in any verification under this Act or under any rule made thereunder, or delivers an account or statement which is false, and which he either knows or believes to be false, or does not believe to be true, he shall be punishable with simple imprisonment which may extend to six months, or with fine which may extend to one thousand rupees, or with both." From the wording of the section it is clear that unless a person makes a statement in any verification under the Act or under any rules made thereunder or delivers an account or statement which is false and which he either knows or believes to be false or does not believe to be true, he shall not be punishable. The act of the petitioner is not an offence under the Act. Ex hypothesi the petitioner has committed an offence only under the provisions contained in S.52 of the repealed Act. Therefore a prosecution on the basis that she committed an offence under the provisions of S.277 would not lie. Hence the apprehension of the petitioner that she will be prosecuted under the Act is an idle one. But is she liable to be prosecuted for an offence under S.52 of the repealed Act, as S.28(4) of that Act has been repealed? S.28(4) was as follows: "No prosecution for an offence against this Act shall be instituted in respect of the same facts on which a penalty has been imposed under this section." Since a penalty has been imposed upon the petitioner in respect of the act of the petitioner committed while the repealed Act was in force, it is doubtful whether a prosecution under Sec, 52 of the repealed Act would lie even though S.28(4) has been repealed. At any rate counsel for the Department submits that the Department has no intention to prosecute the petitioner under S.52 of the repealed Act. Therefore I see no basis for the apprehension of the petitioner that she stands in danger of a prosecution either under the repealed Act or under the Act. 6. The learned Advocate General then submitted that no minimum in the quantum of the penalty was fixed under See. 28 of the repealed Act whereas under S.271 of the Act a minimum has been prescribed, and that the effect of the minimum in the quantum of the penalty was to subject the petitioner to a greater penalty for the commission of the offence within the meaning of Art.20(1) of the Constitution. The relevant portions of S.28 of the repealed Act and S.271 of the Act are as follows: "28(1). The relevant portions of S.28 of the repealed Act and S.271 of the Act are as follows: "28(1). If the Income-tax Officer, the Appellate Assistant Commissioner or the Appellate Tribunal, in the course of any proceedings under this Act, is satisfied that any person (c) has concealed the particulars of his income or deliberately furnished inaccurate particulars of such income: he or it may direct that such person shall pay by way of penalty, in the case referred to in clause (a), in addition to the amount of the income tax and super-tax, if any, payable by him, a sum not exceeding one and a half times that amount, and in the cases referred to in clauses (b) and (c), in addition to any tax payable by him, a sum not exceeding one and a half times the amount of the Income-tax and supertax, if any, which would have been avoided if the income as returned by such person had been accepted as the correct income:...." "271(1). If the Income-tax Officer or the Appellate Assistant Commissioner in the course of any proceedings under this Act, is satisfied that any person (d) has concealed the particulars of his income or deliberately furnished inaccuarate particulars of such income, he may direct that such person shall pay by way of penalty, (iii) in the cases referred to in clause (c), in addition to any tax payable by him, a sum which shall not be less than twenty per cent, but which shall not exceed one and a half times the amount of the tax, if any, which would have been avoided if the income as returned by such person had been accepted as the correct income." The argument was that since a minimum in the quantum of the penalty was prescribed under the Act that took away the discretion which the concerned Officer had under the repealed Act in the matter of imposing the penalty, and therefore the petitioner is being subjected to a greater penalty. I am not impressed by the argument. The decision reported in Satwant Singh v. State of Punjab (A. I. R.1960 S. C. 266) although it deals with imposition of fine on conviction, indirectly throws light upon this question. It is observed in the judgment: "The fine which could have been imposed upon the accused under S.420, Penal Code was unlimited. I am not impressed by the argument. The decision reported in Satwant Singh v. State of Punjab (A. I. R.1960 S. C. 266) although it deals with imposition of fine on conviction, indirectly throws light upon this question. It is observed in the judgment: "The fine which could have been imposed upon the accused under S.420, Penal Code was unlimited. A law which provided for a minimum sentence of fine on conviction could not be read as one which imposed a greater penalty than that which might have been inflicted under the law at the time of the commission of the offence where for such an offence there was no limit as to the extent of fine which might be imposed. Under Art.20 of the Constitution all that has to be considered is whether the expost facto law imposes a penalty greater than that which might be inflicted under the law in force at the time of the commission of the offence. It could not be said that S.10 of the Ordinance 29 of 1943 imposed any such penalty and therefore was in contravention of the provisions of Art.20." (See the Head-note) The maximum penalty being the same in both the enactments, I think there is no substance in the contention that the petitioner is being subjected to a greater penalty under the Act because a minimum is specified in S.271 of the Act. Quite apart from this, I do not think that Art.20(1) has any application even if it be assumed that there has been an enhancement in the quantum of the penalty to be imposed under the Act. Penalty is nothing but compensation for damages collected by the State for attempting to evade the provisions of the Act. (See Sivagaminatha Moopanar & Sons v. Income Tax Officer (I955); 28 I. T. R.601). The objects of S.52 and 28 of the repealed Act were different. The object of the former was to vindicate public justice by punishing the offender, whereas the object of the latter was to render evasion unprofitable and to secure to the State compensation for damages caused by attempted evasions. They were mutually exclusive and but for S.28(4) there would have been no bar to launching a prosecution for an offence under S.52, even though a penalty has been imposed on the assessee on the same facts. They were mutually exclusive and but for S.28(4) there would have been no bar to launching a prosecution for an offence under S.52, even though a penalty has been imposed on the assessee on the same facts. That these are mutually exclusive remedies appears from what Brandeis J., said in Helvering v. Mitchell (303 U. S.390). "Congress may impose both a criminal and a civil sanction in respect to the same act or omission.... The remedial character of sanctions imposing additions to a tax has been made clear by this Court in passing upon similar legislation. They are provided primarily as a safeguard for the protection of the revenue and to reimburse the Government for the heavy expense of investigation and the loss resulting from the tax payer's fraud... The fact that the Revenue Act of 1928 contains two separate and distinct provisions imposing sanctions and that these appear in different parts of the statute, helps to make clear the character of that here invoked. The sanction of fine and imprisonment ...for wilful attempts in any manner to evade or defeat any income tax introduced into the Act under the heading'penalties' is obviously a criminal one. The sanction of 50 per centum addition if any part of any deficiency is due to fraud with intent to evade tax,... introduced into the Act under the heading 'Additions to the Tax' was clearly intended as a civil one. This sanction and other additions to the tax are set forth in supplement M, entitled 'interest and additions to the tax'." And also from what Jackson, J said in Spies v. United States (317 U. S.492): "The penalties imposed by Congress to enforce the tax laws embrace both civil and criminal sanctions The former consist of additions to the tax upon determinations of fact made by an administrative agency and with no burden on the Government to prove its case beyond a reasonable doubt. The latter consist of penal offences enforced by the criminal process in the familiar manner. Invocation of one does not exclude resort to the other." No conviction for any offence is involved in the imposition of a penalty. Art, 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. Art, 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 may be inflicted upon such conviction. A penalty, therefore, would come within the purview of Art.20 (1) only if the earlier part of the clause is attracted, i. e. there must have been a conviction for an offence Unless there is a conviction, no question of the latter part of the Article applying will arise. Alt hough the concealment of the particulars of the income was made an offence under S.52 of the repealed Act and is also made an offence under S.277 of the Act, I cannot say that the penalty imposed under S.28 of the repealed Act or under S.271 of the Act was or is imposed on the basis that it was or is an offence. For the offence punishment was or is prescribed such as imprisonment, fine or both. The imposition of penalty on the basis of an act or omission by an assessee is not because the act or omission constitutes an offence, but because the act or omission would constitute an attempt at evasion. Therefore penalty is exacted not because an act or omission is an offence but because it is an attempt at evasion of tax on the part of the assessee. Art.20 (1) of the Constitution can have no application to a case where a penalty is imposed not as punishment for an offence but for some other collateral purpose. A heavier penalty for failure to pay tax would not have attracted the application of the corresponding Article of the Constitution of the United States. (See Banker's Trust Co. v. Blodgett 260 U. S.647). A heavier penalty for failure to pay tax would not have attracted the application of the corresponding Article of the Constitution of the United States. (See Banker's Trust Co. v. Blodgett 260 U. S.647). In that case, in answer to the contention 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 Art.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 over-rule this contention of the learned Advocate Ceneral. 7. The writ petition fails, and it is dismissed. No costs. Dismissed.