Commissioner of Wealth Tax, Amritsar Vs.
Suresh Seth [1981] INSC 84 (7 April 1981)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) PATHAK, R.S.
CITATION: 1981 AIR 1106 1981 SCR (3) 419 1981
SCC (2) 790 1981 SCALE (1)729
CITATOR INFO :
D 1984 SC1194 (28) O 1986 SC 293
(13,15,16,18)
ACT:
Wealth Tax Act, 1957-Scope of section 18(1)
(a) of the Act-Whether the offence relating to the omission to file the Wealth
Tax Returns was a continuing offence-Penalty has to be computed in accordance
with the law in force on the last day on which the return in question has to be
filed-The 1964 and 1969 Amendments to the Wealth Tax Act has no retrospective
effect.
HEADNOTE:
The assessee-respondent filed his Wealth Tax
returns for the assessment years 1964-65 and 1965-66 on March 18, 1971, while
he was required by section D 14(1) of the Act to file the return for the
assessment year 1964-65 on or before June 30, 1964 and the return for the
assessment year 1965-66 on or before June 30, 1965. The Wealth Tax officer
completed the assessment for the said years on March 22, 1971 and also
commenced proceedings for levying penalty under section 18(1) (a) of the Act
for the late submission of returns. The Wealth Tax officer levied the penalties
for different periods at different rates, as provided by the 1964 and 1969
Amendments. treating the failure to file the return in time as a
"continuing offence". The orders levying penalties were upheld in
appeal by the Appellate Assistant Commissioner and the Income Tax Appellate
Tribunal, Amritsar Bench, Amritsar.
A consolidated reference made by the Tribunal
at the instance of the assessee was answered by the High Court of Punjab in
favour of the assessee after rejecting the contention of the department that
the default or failure to file the return in time was a continuing default and
that the penalty had to be computed for the period prior to April 1, 1965 in
accordance with section 18 as it stood prior to its amendment by the Wealth-tax
(Amendment) Act, 1964, for the period between April 1, 1965 to March 31, 1969
in accordance with section 18 of the Act as amended by the Wealth-tax
(Amendment) Act, 1964 and for the period between April 1, 1969 to March 18,
1971 (on which date the returns were filed) in accordance with section 18 of
the Act as amended by the Finance Act, 1969. Aggrieved by the decision of the
High Court, the Department has filed these appeals under Article 136 of the
Constitution. G Dismissing the appeals, the Court
HELD 1:1. Where the default complained of is
one falling under section 18(1) (a) of the Wealth Tax Act, the penalty has to
be computed m accordance with the law in force on the last day on which the
return in question had to be filed. Neither the amendment made in 1964 nor the
amendment made in 1969 has retrospective effect. [434 C-D] 420 1:2. Section 18
of the Wealth Tax Act does not require the assessee to file a return during
every month after the last day to file it is over. Non-performance of any of
the acts mentioned in section 18(1) (a) of the Act gives rise to a single
default and to a single penalty, the measure of which, however, is geared up to
the time lag between the last date on which the return has to be filed and the
date on which it is filed. The default, if any committed is committed on the last
date allowed to file the return. The default cannot be one committed every
month thereafter. [433 G-H, 434 A] 1:3. The words "for every month during
which the default continued" indicate only the multiplier to be adopted in
determining the quantum of penalty and do not have the effect of making the
default in question a continuing one. Nor do they make the amended provisions
modifying the penalty applicable to earlier defaults in the absence of
necessary provisions in the amending Acts. The principle underlying section 6
of the General Clauses Act is clearly applicable to these cases. [434 B-C] 2:1.
A liability in law ordinarily arises out of an act of commission or an act of
omission. When a person does an act which law prohibits him from doing it and attaches
a penalty for doing it, he is stated to have committed an act of commission
which amounts to a wrong in the eye of law.
Similarly when a person omits to do an act
which is required by law to be performed by him and attaches a penalty for such
omission, he is said to have committed an act of omission which is also a wrong
in the eye of law. Ordinarily a wrongful act or failure to perform an act
required by law to be done becomes a completed act of commission or of
omission, as the case may be, as soon as the wrongful act is committed in the
former case and when the time prescribed by law to perform an act expires in
the latter case and the liability arising therefore gets fastened as soon as
the act of commission or of omission is completed. The extent of that liability
is ordinarily measured according to the law in force at the time of such
completion. In the case of acts amounting to crimes the punishment to be
imposed cannot be enhanced at all under our Constitution by any subsequent
legislation by reason of Article 20(I) of the Constitution which declares that
no person shall be 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. In other cases, however, even though the liability may be enhanced it
can only be a subsequent law (of course subject to the Constitution which
either by express words or by necessary implication provides for such
enhancement. [429 G-H, 430 A-D] 2:2. The distinctive nature of a continuing
wrong is that the law that is violated makes the wrongdoer continuously liable
for penalty. A wrong or default which is complete but whose effect may continue
to be felt even after its completion is, however, not a continuing wrong or
default. [430 D-E] 2:3. The court should not be eager to hold that an act or
omission is a continuing wrong or default unless there are words in the statute
concerned which make out that such was the intention of the legislature. In the
instant case whenever the question of levying penalty arises what has to be
first considered is whether the assessee has failed without reasonable cause to
file the return as re- 421 quired by law and if it is held that he has failed
to do so then penalty has to be levied in accordance with the measure provided
in the Act. When the default is the filing of a delayed return the penalty may
be correlated to the time lag between the last day for filing it without
penalty and the day on which it is filed and the quantum of tax or wealth
involved in the case for purposes of determining the quantum of penalty but the
default however is only one which takes place on the expiry of the last day for
filing the return without penalty and not a continuing one. The default in
question does not, however, give rise to a fresh cause of action every day.
[430 E-H] 2:4. Where the wrong complained of is the omission to perform a
positive duty requiring a person to do a certain act the test to determine
whether such a wrong is a continuing one is whether the duty in question is one
which requires him to continue to do that act. Breach or a covenant to keep the
premises in good repair, breach of a continuing guarantee obstruction to a
right of way, obstruction to the right of a person to the unobstructed flow of
water, refusal by a man to maintain his wife and children whom he is bound to
maintain under law and the carrying on of mining operations or the running of a
factory without complying with the measures intended for the safety and
well-being of workmen may be illustrations of continuing breaches or wrongs
giving rise to civil or criminal liability, as the case may be, de die in diem.
[433 A-D] Hole v. Chard Union, [1894] 1 Ch. D. 293, quoted with approval.
State v. A. Bhiwandiwalla, A. I. R. 1955 Bom.
161; The State v. Kunja Behari Chandra and Ors. A.I.R. 1954 Patna 371,
approved, Balkrishna Savalram Pujari and Ors. v. Shree Dayaneshwar Maharaj
Sansthan and Ors., [1959] Supp. 2 S.C.R. 476, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 768-769 of 1978.
Appeals by Special Leave from the Judgment
and order dated 28.1.1977 of the Punjab and Haryana High Court in Income Tax
Reference No. 29 of 1975.
B.B. Ahuja and Miss A. Subhashini for the
Appellant.
G.C. Sharma, E.D. Helms, R.S. Sharma and K.B.
Rohtagi for the Respondent.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. The Commissioner of Wealth Tax, Amritsar has filed the above
appeals by special leave against the judgment of the High Court of Punjab and
Haryana in a reference made under section 27(1) of the Wealth-tax Act, 1957
(hereinafter 422 referred to as 'the Act') answering in favour of the assessee
the following two questions:
"1. Whether, on the facts and in the
circumstances of the case, the Tribunal was right in law in holding that the
offence relating to the omission to file the Wealth tax returns was a
continuing offence?
2. Whether, on the facts and in the
circumstances of the case, the Tribunal was right in law upholding the
penalties of Rs. 5382/- and Rs. 7759/- levied by the department on the assessee
under section 18(1)(a) of the Wealth-tax Act, 1957, for the assessment years
1964-65 and 1965-66 respectively ?" The assessee, the respondent in these
appeals filed his wealth tax returns for the assessment years 1964-65 and
1965-66 on March 18, 1971 while he was required by section 14(1) of the Act to
file the return for the assessment year 1964-65 on or before June 30, 1964 and
the return for the assessment year 1965-66 on or before June 30, 1965. The
Wealth-tax Officer completed the assessments for the aforementioned years on
March 22, 1971 determining the total wealth at Rs. 1,45,800/- for the
assessment year 1964-65 as against the declared wealth of Rs. 1,38,550/- and at
Rs.
1,65,200/- for the assessment year 1965-66 as
against the declared wealth of Rs. 1,59,127/- and also commenced proceedings
for the levying penalty under section 18(1)(a) of the Act for late submission
of returns. Ultimately the penalties were levied as follows:
"Assessment year 1964-65:
(i) For the period from 1.7.64 to 31.3.69:
Penalty at 2% p.m. subject to maximum of 50%
of the wealth-tax payable under section 18(1)(a) before its amendments on
1.4.69 by the Finance Act, 1969: Rs. 115/- (ii) For the period from 1.4.69 to
18.3.71:
Penalty at 1/2% of the net wealth for each
month of the default under section 18(1)(a) as amended by the Finance Act,
1969: Rs. 5,267/- ------- Rs. 5,382/- 423 Assessment year 1965-66:
(i) For the period from 1.7.65 to 30.3.69:
Penalty at 2% p.m. subject to maximum of 50%
of the wealth-tax payable under section 18(1)(a) before its amendment on 1.4.69
by the Finance Act, 1969: Rs.163/- (ii) For the period from 1.4.69 to 18.3.71:
Penalty at 1/2% of the net wealth for each
month of default under section 8(1)(a) as amended on 1.4.69 by the Finance Act,
1969: Rs. 7,596/- ------- Rs. 7,759/- The above orders levying penalties were
upheld in appeal by the Appellate Assistant Commissioner and the Income-tax
Appellate Tribunal, Amritsar Bench, Amritsar. At the instance of the assessee a
consolidated reference was made by the Income-tax Appellate 'Tribunal to the
High Court referring the above two questions for its opinion. The High Court
answered the said questions in favour of the assessee after rejecting the
contention of the department that the default or failure to file the return in
time was a continuing default and that the penalty had to be computed for the
period prior to April 1, 1965 in accordance with section 18 as it stood prior
to its amendment by the Wealth- tax (Amendment) Act, 1964, for the period
between April 1, 1965 to March 3], 1969 in accordance with section 18 of the
Act as amended by the Wealth-tax (Amendment) Act, 1964 and for the period
between April 1, ]969 to March 18, 1971 (on which date the returns were filed)
in accordance with sec.
18 of the Act as amended by the Finance Act,
1966. Aggrieved by the decision of the High Court, the Department has filed
these appeals under Article 136 of the Constitution .
Before dealing with the contentions of the
parties, it is appropriate to set out the provisions of the Act which have a
bearing on the question involved in the present appeals as they stood during
the relevant periods:
Prior to April 1, 1965, sub-sections (1) and
(3) of section 14 of the Act stood as follows:- 424 "14. Return of
wealth-(1) Every person whose net wealth on the valuation date was of such
amount as to render him liable to wealth-tax under this Act shall, before the thirtieth
day of June of the corresponding assessment year, furnish to the Wealth-tax
officer a return in the prescribed form and verified in the prescribed manner
setting forth his net wealth as on the valuation date;
(2)...............
(3) The Wealth-tax officer may, if he is
satisfied that it is necessary so to do, extend the date for the delivery of
return under this section." After April 1, 1965:
"14. (1) Every person, if his net wealth
or the net wealth of any other person in respect of which he is assessable
under this Act on the valuation date was of such an amount as to render him
liable to wealth-tax under this Act, shall, before the thirtieth day of June of
the corresponding assessment year, furnish to the Wealth-tax officer a return
in the prescribed form and verified in the prescribed manner setting forth the
net wealth as on the valuation date.
(2)...............
(3) The Wealth-tax officer may, if he is
satisfied that it is necessary so to do, extend the date for the delivery of
the return under this section." Section 15 of the Act which has not
undergone any change since the commencement of the Act reads:
"15. Return after due date and amendment
of return-If any person has not furnished a return within the time allowed
under section 14 or having furnished a return under that section discovers any
omission or a wrong statement therein, he may furnish a return or a revised
return, as the case may be, at any time before the assessment is made."
The relevant parts of section 18 of the Act as they stood during the three
periods referred to above read as follows:- 425 Prior to April 1, 1965
"18. (1) If the Wealth-tax officer, Appellate Assistant Commissioner,
Commissioner or Appellate Tribunal in the course of any proceedings under this
Act is satisfied that any person- (a) has without reasonable cause failed to
furnish the return of his net wealth which he is required to furnish under
sub-section (1) or sub-section (2) of section 14 or section 17 or has without
reasonable cause failed to furnish it within the time allowed and in the manner
required; or (b) ......
(c) .........
he or it may, by order in writing, direct
that such person shall pay by way of penalty- (i) in the case referred to in
clause (a), in addition to the amount of wealth-tax payable by him, a sum not
exceeding one and a half times the amount of such tax, and .. " Between
April 1, 1965 and March 31, 1969 "18. (1) If the Wealth-tax officer,
Appellate Assistant Commissioner, Commissioner or Appellate Tribunal in the course
of any proceedings under this Act is satisfied that any person- (a) has without
reasonable cause failed to furnish the return of his net wealth which he is
required to furnish under sub-section (a) of section 14 or by notice given
under sub-section (2) of section 14 or section 17 or has without reasonable
cause failed to furnish it within the time allowed and in the manner required
by sub-section (1) of section 14 or by such notice, as the case may be;
or (b) ............
(c) ............
426 he or it may, by order in writing, direct
that such person shall pay by way of penalty- (i) in the cases referred to in
clause (a), in addition to the amount of wealth-tax, if any, payable by him, a
sum equal to two per cent of the tax for every month during which the default
continued, but not exceeding in the aggregate fifty per cent of the tax;
After April 1, 1969 and as on March 18, 1971
on which date the returns were filed "18. (1) If the Wealth-tax officer,
Appellate Assistant Commissioner, Commissioner or Appellate Tribunal in the
course of any proceedings under this Act is satisfied that any person- (a) has
without reasonable cause failed to furnish the return which he is required to
furnish under sub- section (1) of section 14 or by notice given under
sub-section (2) of section 14 or section 17, or has without reason able cause
failed to furnish within the time allowed and in the manner required by
sub-section (1) of section 14 or by such notice, as the case may be; or (b)
..........
(c) ..........
he or it may, by order in writing, direct
that such person shall pay by way of penalty- (i) in the cases referred to in
clause (a), in addition to the amount of wealth-tax, if any, payable by him, a
sum, for every month during which the default continued, equal to one-half per
cent of- (A) the net wealth assessed under section 16, as reduced by the amount
of net wealth on which in accordance with the rates of wealth tax specified in
Paragraph A of Part I of the Schedule or Part II of the Schedule, the
wealth-tax chargeable is nil; or (B) the net wealth assessed under section 17,
where assessment has been made under that section, as reduced by- 427 (1) the
net wealth, if any, assessed previously under section 16 or section 17 or (2)
the amount of net wealth on which in accordance with the rates of wealth-tax
specified in Paragraph A of Part I of the Schedule or Part II of the Schedule,
the wealth tax chargeable is nil, whichever is greater, but not exceeding, in
the aggregate, an amount equal to the net wealth assessed under section 16, or,
as the case may be, the net wealth assessed under section 17, as reduced in
either case in the manner aforesaid;........" Now let us analyse the above
provisions of law. Section 14 of the Act which has not undergone any material
change from the commencement of the Act in so far as the question involved in
these appeals is concerned requires a person the value of whose wealth is such
as would attract the liability to pay tax to file a return of his wealth as on
the valuation date in the prescribed manner before the Wealth- tax Officer on
or before the thirtieth of June of the assessment year or on or before any date
upto which the Wealth-tax officer has extended the time to file the return.
Section 15 of the Act, however, enables such
a person to file a return at any time before the assessment is made. The
distinction between section 14 and section 15 of the Act lies in the fact that
whereas under section 14 a duty is imposed on the assessee to file a return
within the prescribed date, section 15 enables him to file a return before the
assessment is made even though the last date prescribed by section 14(1) is
over. Section 18 of the Act deals with three types of penalties for certain
specified acts or omissions on the part of the assessee referred to in clauses
(a), (b) and (c) of sub-section (1) thereof. We are concerned in this case with
the question of levy of penalty in respect of omissions referred to in clause
(a) of section 18(1) of the Act. There are four kinds of omissions referred to in
that clause-(i) failure to furnish the return which the assessee is required to
furnish under sub-section (i) of section 14; (ii) failure to furnish the return
as required by a notice issued under section 14(2) or section 17, (iii) failure
to furnish the return as required by section 14(1) within the time allowed and
in the prescribed manner and (iv) failure to furnish the return as required by
a notice issued under section 14(2) or section 17 within the time allowed and
in the prescribed manner. Each one of these omissions expose the assessee to
the levy of penalty unless reasonable cause is shown for not performing 428 the
duty. In clause (i) of section 18(1) of the Act, the penalty leviable for any
of the omissions referred to in section 18(1)(a) is set out but the measure of
penalty imposable has varied from time to time. Prior to April 1, 1965 the
penalty imposable was a sum not exceeding one and a half times the amount of
wealth tax payable by the assessee during the assessment year in question. Within
the outer limit referred to above, The officer concerned or the Tribunal as the
case may be could impose any amount as penalty having regard to all the
relevant circumstances of the case including perhaps the time that had elapsed
from the last day allowed to file the return. Between April 1, 1965 and March
31, 1969 the measure of penalty was regulated by section 18 of the Act as
amended in 1964. During that period the penalty imposable was a sum equivalent
to two per cent of the tax for every month during which the default continued
but not exceeding in the aggregate fifty per cent of the tax. The penalty
leviable during this period was less onerous than it was before April 1, 1965.
Then came the amendment made by the Finance Act of 1969. After April 1, 1969 by
reason of the amendment introduced by the Finance Act of 1969 the penalty
imposable was altered to a sum for every month during which the default
continued equal to one- half per cent of the net wealth calculated in
accordance with the amended provisions in section 18. The penalty leviable
during this period was more drastic than what it was before. One significant
difference between the law as it existed prior to April 1, 1965 and the law as
it existed during the subsequent two periods is that whereas during the period
prior to April I, 1965 there was no specific reference in clause (i) of section
18 (a) to the time lag between the last date on which the return had to be
filed and the date on which it was actually filed, the said factor was expressly
required to be taken into consideration after April 1, 1965 while determining
the penalty payable by the assessee. Another significant factor which requires
to be borne in mind is that neither the Wealth-tax (Amendment) Act, 1964 nor
the Finance Act, 1969 by which section 18 of the Act was amended expressly
stated that the amended provisions of section 18 would be applicable to an
assessee who had failed to file the return in respect of any preceding
assessment year and the said default had continued after the amendment came
into force except using the phrase "for every month during which the
default continued", in that part of section 18 which prescribed the
measure of penalty.
The contention of the Department is that
whatever may have been the position of law before April 1, 1965, on and after
that date 429 the default committed by an assessee in not filing a return as
required by section 14(1) of the Act amounted to a continuing wrong which
attracted the penalty as provided by the law in force at the time when such
default continued. In other words it is contended that in this case since the
assessee who had to file a return after April 1, 1965 for assessment year
1965-66 had not f led the same till March 13, 1971 penalty had to be computed
for the period upto April 1, 1969 under the provisions of section 18 of the Act
as it stood during that period and for the subsequent period additional penalty
should be levied in accordance with section 18 as amended by the Finance Act,
1969. Relying upon the decision of the Kerala High Court in Commissioner of
Wealth-tax, Kerala v. Smt. V. Pathummabi it is argued that amendments made in
1964 and 1969 brought about a qualitative change in the nature of the default
contemplated under section 18 and that what could have been a completed default
before April 1, 1965 became a continuing default. Even assuming that this
argument is correct it has to be held that the decision of the High Court in so
far as the default committed by the assessee in not filing the return in respect
of the assessment year 1964-65 is concerned is not erroneous. What remains to
be considered is whether the decision in respect of the default committed by
the assessee in not filing the return due on June 31), 1955 for the assessment
year 1965-66 is liable to be interfered with.
To repeat, the relevant part of section 18 of
the Act can be divided into two parts-the first part contained in clause (a) of
section 18(1) setting out the gist of the default and the second part
prescribing the measure of penalty. The former part has more or less remained
the same from the commencement of the Act and it is only the latter part which
has undergone changes. The question is whether by reason of the changes in the
latter pari, there has been a change in the nature of the wrong referred to in
section 18 (1) (a) of the Act.
A liability in law ordinarily arises out of
an act of commission or an act of omission. When a person does an act which law
prohibits him from doing it and attaches a penalty for doing it, he is stated
to have committed an act of commission which amounts to a wrong in the eye of
law.
Similarly when a person omits to do an act
which is required by law to be performed by him and attaches a penalty for such
omission, he is said to have 430 committed an act of omission which is also a
wrong in the eye of law. Ordinarily a wrongful act or failure to perform an act
required by law to be done becomes a completed act of commission or omission,
as the case may be, as soon as the wrongful act is committed in the former case
and when the time prescribed by law to perform an act expires in the latter
case and the liability arising therefrom gets fastened as soon as the act of
commission or of omission is completed. The extent of that liability is
ordinarily measured according to the law in force at the time of such
completion. In the case of acts amounting to crimes the punishment to be
imposed cannot be enhanced at all under our Constitution by any subsequent
legislation by reason of Article 20 (I) of the Constitution which declares that
no person shall be 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. In other cases, however, even though the liability may be enhanced it
can only be done by a subsequent law (of course subject to the Constitution)
which either by express words or by necessary implication provides for such
enhancement. In the instant case the contention is that the wrong or the
default in question has been altered into a continuing wrong or default giving
rise to a liability de die in diem, that is, from day to day. The distinctive
nature of a continuing wrong is that the law that is violated makes the wrong
doer continuously liable for penalty. A wrong or default which is complete but
whose effect may continue to be felt even after its completion is, however, not
a continuing wrong or default.
It is reasonable to take the view that the
court should not be eager to hold that an act or omission is a continuing wrong
or default unless there are words in the statute concerned which make out that
such was the intention of the legislature. In the instant case whenever the
question of levying penalty arises what has to be first considered is whether
the assessee has failed without reasonable cause to file the return as required
by law and if it is held that he has failed to do so then penalty has to be
levied in accordance with the measure provided in the Act. When the default is
the filing of a delayed return the penalty may be correlated to the time lag
between the last day for filing it without penalty and the day on which it is
filed and the quantum of tax or wealth involved in the case for purposes of
determining the quantum of penalty but the default however is only one which
takes place on the expiry of the last day for filing the return without penalty
and not a continuing one. The default in question does not, however, give rise
to a fresh cause of action every day. Explaining the expression 431 'a continuing
cause of action' Lord Lindley in Hole v. Chard Union observed:
"What is a continuing cause of action ?
Speaking accurately, there is no such thing; but what is called a continuing
cause of action is a cause of action which arises from the repetition of acts
or omissions of the same kind as that for which the action was brought."
In the same decision, Lord Justice A. L. Smith who concurred with the above
view said:
"If once a cause of action arises, and
the acts com plained of are continuously repeated, the cause of action
continues and goes on de die in diem. It seems to me that there was a
connection in the present case between the series of acts before and after the
action was brought; they were repeated in succession, and became a continuing
cause of action. They were an assertion of the same claim-namely, a claim to
continue to pour sewage into the stream-and a continuance of the same alleged
right. In my opinion, there was here a continuing cause of action within the
meaning of the rule." The distinction between a continuing offence and an
offence which is not a continuing one is well brought out in the decision of
the High Court of Bombay in State v. A. H. Bhiwandiwalla. In that case, the
accused-respondent had been charged with two offences namely, (a) failure to
apply for registration of his factory and to give notice of occupation and (b)
running the factory without a licence issued under the Factories Act, 1948. The
accused had a plea of limitation against the prosecution. In that context the
High Court observed:
"In civil law, we often refer to a
continuing or recurring cause of action. Similarly, even in criminal law the
expression "continuing offence" is frequently used. As observed by
Beaumount C. J. in-'Emperor v. Chhotalal Amarchand', AIR 1937 Bom 1 (FB) the
expression "continuing offence" is not a very happy expression. It
assumes, says the learned Chief Justice- 432 ".. that you can have a
continuing offence in the sense in which you can have a continuing tort, or a
continuing breach of contract, and I doubt, myself whether the assumption is
well founded, having regard to the provisions of the Criminal Procedure Code as
to the framing of charges and as to the charges which can be tried at one and
the same trial. It is quite clear that you could not charge a man with
committing an offence 'de die in diem' over a substantial period." Even
so, this expression has acquired a well- recognised meaning in criminal law. If
an act committed by an accused person constitutes an offence and if that act
continues from day to day, then from day to day a fresh offence is committed by
the accused so long as the act continues. Normally and in the ordinary course
an offence is committed only once. But we may have offences which can be
committed from day to day and it is offences falling in this latter category
that are described as continuing offences." Accordingly the High Court of
Bombay held in Bhiwandiwalla's case (supra) that the failure to apply for
registration of the factory under the Factories Act and to give notice of
occupation thereof was not a continuing offence but the running of the factory
without a licence issued thereunder was a continuing offence.
Section 39 of the Indian Mines Act, 1923
which came up for consideration before the Patna High Court in The State v.
Kunja Behari Chandra & Ors. on which reliance was placed by the Revenue is
a case of continuing offence. Section 39 provided:
"39. Whoever contravenes any provision
of this Act or of any regulation, rule or bye-law or of any order made
thereunder for the contravention of which no penalty is hereinafter provided
shall be punishable with fine which may extend to one thousand rupees, and in
the case of a continuing contravention, with a further fine which may extend to
one hundred rupees for every day on which the offender is proved to have
persisted in the contravention after the date of the first conviction."
433 In this case the language of the section itself made it obvious that its
violation resulted in a continuing offence.
The true principle appears to be that where
the wrong complained of is the omission to perform a positive duty requiring a
person to do a certain act the test to determine whether such a wrong is a
continuing one is whether the duty in question is one which requires him to
continue to do that act. Breach of a covenant to keep the premises in good
repair, breach of a continuing guarantee, obstruction to a right of the way,
obstruction to the right of a person to the unobstructed flow of water, refusal
by a man to maintain his wife and children whom he ii bound to maintain under
law and the carrying on of mining operations or the running of a factory
without complying with the measures intended for the safety and well-being of
workmen may be illustrations of continuing breaches or wrongs giving rise to
civil or criminal liability. as the case my be, de die in diem.
In Balkrishna Savalram Pujari & Ors. v.
Shree Dayaneshwar Maharaj Sansthan & Ors. Gajendragadkar, J. (as he then
was) observed:
"It is the very essence of a continuing
wrong that it is an act which creates a continuing source of injury and renders
the doer of the act responsible and liable for the continuance of the said
injury. If the wrongful act causes an injury which is complete, there is no
continuing wrong even though the damage resulting from the act may continue.
If, however, a wrongful act is of such a character that the injury caused by it
itself continue, then the act constitutes a continuing wrong. In this
connection it is necessary to draw a distinction between the injury caused by
the wrongful act and what may be described at the effect of the said injury."
Section 18 of the Act with which we are concerned in this case, however, does
not require the assessee to file a return during every month after the last day
to file it is over. Non-performance of any of the acts mentioned in section
18(1)(a) of Act gives rise to a single default and to a single penalty, the
measure of which, 434 however, is geared up to the time lag between the last
date on which the return has to be fled and the date on which it is filed. The
default, if any committed is committed on the last date allowed to file the
return. The default cannot be one committed every month thereafter. The words
for every month during which the default continued' indicate only the
multiplier to be adopted in determining the quantum of penalty and do not have
the effect of making the default in question a continuing one. Nor do they make
the amended provisions modifying the penalty applicable to earlier defaults in
the absence of necessary provisions in the amending Acts. The principle
underlying section 6 of the General Clauses Act is clearly applicable to these
cases. It may be stated here that the majority of the High Courts in India have
also taken the same view.
In the result we hold that where the default
complained of is one falling under section(l)(a) of the Act, the penalty has to
be computed in accordance with the law in force on the last day on which the
return in question had to be filed. Neither the amendment made in 1964 nor the
amendment made in 1969 has retrospective effect.
The appeals therefore fail and are dismissed
with costs. Hearing fee one set.
S.R. Appeals dismissed.
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