S.N.P. Singh, C.J.

1. At the instance of the Commissioner of Income Tax, Bihar, Patna, these two references under Section 256(1) of the Income- tax Act, 1961 (hereinafter referred to as "1961 Act"), has been made by the Income Tax Appellate Tribunal, Patna Bench, for decision of the following question of law :

"Whether, on the facts and circumstances of the case, the levy and demand of penalty under Section 273(b) of the Act of 1961 on the basis of the reassessment under Section 34 of the Act of 1922 after giving deduction for penalty levied under Section 18A(9) of the Act of 1922 on the basis of the original assessment under Section 23(3) of the Act of 1922 is legal and valid "

2. The relevant facts of Tax Case No. 22 of 1970 are these. For the assessment year 1957-58, Sri Ramchandra Singh, the assessee, was for the first time assessed on a total income of Rs. 70,500. After the completion of the assessment, the Income Tax Officer imposed a penalty of Rs. 5,000 under Section 18A(9) read with Section 28(1)(c) of the Indian Income Tax Act, 1922 (hereinafter referred to as "1922 Act"). The penalty was imposed because the assessee had not filed an estimate of his income under section 18A(3). When the matter finally went up in appeal to the Appellate Tribunal, the quantum of penalty was reduced to Rs. 1,000. Subsequently, the Income Tax Officer proceeded to reopen the assessment under Section 34 of the 1922 Act. He assessed Sri Ramchandra Singh on a total income of Rs. 98,110 which was later on reduced by the Appellate Assistant Commissioner by Rs. 19,704 on appeal by the assessee. In view of the fresh assessment, the Income Tax Officer again started a proceeding against the assessee under Section 18A(9) for non-filing of the estimate of his income as required under Section 18A(3) The Income Tax Officer thereafter levied a penalty of Rs, 1,600 on the assessee. When the matter was taken up before the Appellate Assistant Commissioner, be was of the view that for the same default the assessee could not be penalised twice over. He, therefore, vacated the order of the Income Tax Officer levying the revised penalty on the assessee. The revenue came up in appeal before the Tribunal. The Tribunal held that the Appellate Assistant Commissioner was justified in cancelling the penalty and confirmed his order. The Commissioner of Income Tax thereupon filed an application before the Tribunal for making a reference under Section 256(1) of the 1961 Act, and the reference has been made accordingly.

3. The relevant facts of Tax Case No. 26 of 1970 are these. For the assessment year 1957-58, Sri Jeet Bahadur Singh, the assessee, was assessed for the first time on a total income of Rs. 68,213. After the completion of the assessment, the Income Tax Officer imposed a penalty of Rs. 4,800 under Section 18A(9) read with Section 28(1)(c) of the 1022 Act, because the assessee had not filed an estimate of his income as required under Section 18A(3). When the matter went up in appeal before the Appellate Tribunal, the quantum of penalty was reduced to Rs. 1,000. Subsequently, the Income Tax Officer reopened the assessment under Section 34 of the 1922 Act. He assessed Sri Jeet Bahadur Singh on a total income of Rs. 95,625. The amount was subsequently reduced by Rs, 19,704, on appeal by the assesses, by the Appellate Assistant Commissioner; In view of the fresh assessment made on the assessee, the Income Tax Officer initiated a proceeding under Section 18A(9) for non-filing of the estimate as required under Section 18A(3) of the 1922 Act. The Income Tax Officer thereafter levied a penalty of Rs. 1,450 on the assessee. When the matter was taken in appeal before the Appellate Assistant Commissioner, he was of the view that for the same default the assessee could not be penalised twice over. He, therefore, vacated the order of the Income Tax Officer levying the revised penalty on the assessee. The revenue went up in appeal before the Tribunal. The Tribunal, agreeing with the Appellate Assistant Commissioner, dismissed the appeal. The Commissioner of Income Tax thereafter made an application before the Tribunal for making a reference under Section 256(1) of the 1961 Act and accordingly the reference has been made.

4. It may be stated at the outset that before the Appellate Assistant Commissioner as well as before the Tribunal a contention was raised on behalf of the two assessees that the rule of double jeopardy would be applicable in their cases, and they could not be penalised twice for the same offence. The Appellate Assistant Commissioner and the Tribunal accepted this contention on behalf of the assessees and took the view that the rule of double jeopardy was applicable on the facts of the two cases and the assessees could not be penalised twice for the same offence. In my opinion, both the Appellate Assistant Commissioner and the Tribunal have given a wrong approach to the matter. The rule of double jeopardy applies to criminal cases and that rule cannot be made applicable in respect of penalties for the various defaults under the taxation statute. The point, however, which falls for consideration is whether any penalty could be imposed upon the assessee for non-submission of returns on the basis of reassessment under Section 34 of the 1922 Act or under Section 147 of the 1961 Act, In order to decide this question it will be necessary to refer to some of the provisions of the 1922 Act us well as of the 1961 Ant. Section 18A of the 1922 Act was inserted by Act 11 of 1944, Sub-section (3) of section 18A read as follows :

"Any person who has not hitherto been assessed shall, before the I5th day of March in each financial year, if his total income of the period which would be the previous year for an assessment for the financial year next following is likely to exceed six thousand rupees, send to the Income Tax Officer an estimate of the tax payable by him on that part of his income to which the provisions of Section 18 do not apply of the said previous year calculated in the manner laid down in Sub-section (1), and shall pay the amount, on such of the dates specified in that sub-section as have not expired, by instalments which may be revised according to the proviso to Sub-section (2)."

5. Sub-section (9) of section 18A which made provision for imposition of penalty for failure to furnish particulars of income reads thus:

"If the Income Tax Officer, in the course of any proceedings in connection with the regular assessment, is satisfied that any assessee-

(a) has furnished under Sub-section (2) or Sub-section (3) estimates of the tax payable by him which he knew or had reason to believe to be untrue, or

(b) has without reasonable cause failed to comply with the provisions & of Sub-section (3),

the assessee shall be deemed, in the case referred to in Clause (a), to % have deliberately furnished inaccurate particulars of his income, and in the case referred to in Clause (b), to have failed to furnish the return of his total income ; and the provisions of Section 28, so far as may be, shall apply accordingly:

Provided that the amount of penalty leviable shall, in the case referred to in Clause (a), be a sum not exceeding one-and-a-half times the amount by which the tax actually paid during the year under the provisions of this section falls short of the tax that should have been paid by the assessee under Sub-section (1) or eighty per cent, of the tax determined on the basis of the regular assessment as modified in the manner provided in Sub-section (6), whichever is the less, and, in the case referred to in Clause (b), one-and-a-half times the said eighty per cent."

6. It will be noticed that the words "regular assessment" have been used in Sub-section (9) of section 18A. The expression "regular assessment" has not been defined in Section 2 of the 1922 Act. It is, however, manifest from the provision of Sub-section (5) of section 18A that "regular assessment" means assessment under Section 23 of that Act. I may now refer to the relevant portion of Section 34 of the 1922 Act. Sub-section (1) of Section 34 reads as follows :

"34. (1) If-

(a) the Income Tax Officer has reason to believe that by reason of the omission of failure on the part of an assessee to make a return of his income under Section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to Income Tax have escaped assessment for that year, or have been under-assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been computed, or

(b) notwithstanding that there has been no omission or failure as mentioned in Clause (a) on the part of the assessee, the Income Tax Officer has in consequence of information in his possession reason to believe that income, profits or gains chargeable to Income Tax have escaped assessment for any year, or have been under-assessed, or assessed at too low a rate, or have been made the subject of excessive relief under this Act, or that excessive loss or depreciation allowance has been computed,

he may in cases falling under Clause (a) at any time within eight years and in cases falling under Clause (b) at any time within four years of the end of that year, serve on the assessee, or, if the assessee is a company, on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under Sub-section (2) of Section 22 and may proceed to assess or reassess such income, profits or gains or recompute the loss or depreciation allowance ; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section:........."

7. It is clear from the above provision of Sub-section (1) of Section 34 that an assessment or reassessment contemplated thereunder cannot be held to be a regular assessment. Similar provision has been made in Section 147 of the 1961 Act. In Section 2(40) of this Act "regular assessment" has been defined as assessment made under Section 143 or Section 144. Section 273 of the 1961 Act is similar to Section 18A(9) of the 1922 Act, and it reads as follows;

"If the Income Tax Officer, in the course of any proceedings in connection with the regular assessment, is satisfied that any assessee-

(a) has furnished under Section 212 an estimate of the advance tax payable by him which he knew or had reason to believe to be untrue, or

(b) has without reasonable cause failed to furnish an estimate of the advance tax payable by him in accordance with the provisions of subsection (3) of Section 212,

he may direct that such person shall, in addition to the amount of tax, if any, payable by him, pay by way of penalty a sum-

(i) which, in the case referred to in Clause (a), shall not be less than ten per cent, but shall not exceed one and a half times the amount by which the tax actually paid during the financial year immediately preceding the assessment year under the provisions of Chapter XVII-C falls short of-

(1) seventy-five per cent, of the tax determined on regular assessment as modified under the provisions of Section 215, or

(2) where a notice under Section 210 was issued to the assessee, the amount payable thereunder, whichever is less ; and

(ii) which, in the case referred to in Clause (b), shall not be less than ten per cent, but shall not exceed one and a half times the amount on which interest is payable under Section 217."

8. It will be noticed that in Section 273 also the words "regular assessment" have been used. It is clear from the various provisions of the 1922 Act as well as the 1961 Act that a penalty can be imposed for non-furnishing of the estimate of advance tax only in connection with the regular assessment under Section 23 of the 1922 Act or regular assessment under Section 143 or Section 144 of the 1961 Act. As the proceeding for assessment or reassessment under Section 34 of the 1922 Act or under Section 147 of the 1961 Act is not a proceeding in connection with the regular assessment, no penalty can be imposed for non-furnishing of an estimate of the advance tax payable by the assessee. I am fortified in my view by a Bench decision of the Kerala High Court in Gates Foam & Rubber Co. v. Commissioner of Income Tax : [1973]90ITR422(Ker) . On behalf of the revenue reliance was placed on the decision of the Supreme Court in N.A. Malbary and Bros. v. Commissioner of Income Tax : [1964]51ITR295(SC) . In that case the assessee was a firm which carried on business at Surat and had a branch at Bangkok. In its return for the assessment year 1951-52, it did not include the profits of the Bangkok business. It did not also comply with the notice of the Income Tax Officer for the production of the accounts relating to the Bangkok branch. The Income Tax Officer estimated ed the profits of the Bangkok branch at Rs. 37,500 and completed the the assessment on January 31, 1952, and on the same day he initiated proceedings for the imposition of penalty for concealment of income. The assessee offered its explanation, but its explanation was rejected and a penalty of Rs 20,000 was imposed in January 22, 1954. In the meantime in the assessment proceedings for the next year, the assessee produced the account books of the Bangkok branch, which disclosed that the assessee had made a profit of Rs. 1,25.520 for the assessment year 1951-52, The Income Tax Officer issued a notice under Section 34 of the 1922 Act in respect of the assessment year 1951-52 and the assessee submitted a return showing the correct profits. The Income Tax Officer issued a notice under Section 28(3) and levied a second penalty of Rs, 68,501 for concealment of income in the original return. The Appellate Tribunal quashed the penalty of Rs. 20,000 but confirmed the penalty of Rs. 68,501. It was contended that the second order imposing penalty was illegal because in respect of the same concealment the Income Tax Officer had no jurisdiction to make the second order while the first stood. It was held by the Supreme Court that the penalty under Section 28 had to be correlated to the amount of tax which would have been evaded if the assessee had got away with the concealment and when the Income Tax Officer ascertained the true facts and realised that a much higher penalty could have been imposed he had jurisdiction to recall the earlier order Imposing penalty on the basis of the estimated income and pass another order imposing the higher penalty. It was further observed that the jurisdiction to make the second order was not lost because he had omitted to recall the earlier order, although the two orders could not be enforced simultaneously or stand together. In my opinion, the decision in that case is of no assistance to the revenue because the facts were different and penalty had been imposed under Section 28(3) of the 1922 Act and not under, Section 18A(9), which has a different scope,

9. For the foregoing reasons, I answer the question in the negative, in favour of the assessees and against the revenue. As the assessees have not appeared in the two references there will be no order as to costs.

S.K. Jha, J.

10. I agree.