Madhya Pradesh High Court
Dulichand Gulzari Lal Jain vs Union Of India & Ors. on 11 September, 1996
Equivalent citations: (1997)140CTR(MP)337
Author: A. K. Mathur
Bench: A. K. Mathur
JUDGMENT
A. K. MATHUR, C.J. :
The petitioners by this writ petition, have challenged the validity of s. 69D of the IT Act being unconstitutional. The petitioners have also prayed that the exclusion of the loans taken on hundi and interest paid thereon from the total income of the assessee may be ordered.
2. The petitioner No. 1 is a registered firm and the petitioner No. 2 is one of the partners.
The petitioners are carrying on business in cloth. The regular books of accounts have been maintained. For the purpose of account, Diwali year is followed. During the accounting year Diwali 1977-78 relevant to asst. yr. 1979-80, the ITO, A-Ward, Jabalpur, found that the assessee had taken hundi loans in cash from various parties after 1st April, 1977, in the following manner :
S. No. Name of party Date of Hundi Loan Amounts Rs.
1.
Dr. Sureshchand Jain, Jawaharganj, Jabalpur 10-7-1978 2,000
2. Mohanlal Gangaram, Ootegaon 15-10-1978 3,000
3. Smt. Jhunnibai w/o Mulayamchand 21-7-1978 2,000
4. Smt. Rajklumari Jain 25-7-1978 1,000
5. Smt. Champalal Jain 23-8-1978 3,500
6. Shri Kallulal Mohanlal 9-9-1978 3,500
7. Shri Danpatlal Nathulal 13-9-1978 3,000
8. Shri Santosh Kumar Deochand 18-9-1978 10,000
9. Mahendra General Stores 11-10-1978 2,000
10. Shri Shambuprasad Kewalprasad 25-9-1978 10,000
11. Shri Shambuprasad Kewalprasad 9-10-1978 4,000
12. Smt. Kasturibai Shikarchand (she has also given Rs. 5,000 by cheque on 11-7-1978) 9-10-1978 1,000
13. Shri Sushilkumar Vinodkumar 2-10-1978 2,000
14. Shri Kukumchand Barelal 30-9-1978 4,000 51,000 The hundi khokas, i.e., discharged hundis were taken on record by ITO. In reply to the query by the ITO as to why the hundi loans to not added in the total income as they are not through account payee cheque, it was stated that the credits were all genuine confirmatory letters from the creditors furnished. It was also stated that the money had to be taken in cash because of the exigencies of business and in some cases, the creditors had no bank account. The ITO did not accept the explanation. He added the entire amount to the total income of the assessee. In terms of s. 69D of the Act, which came into force from 1st April, 1977, the AO while disposing of the explanation submitted by the assessee, held that the question whether the loans are genuine or not does not arise, as the provisions of the Act has to be complied with strictly, and it admits of no exception. The ITO accordingly added these loans amounting to Rs. 51,000 and interest of Rs. 3,318, total Rs. 54,318 to the total income of the assessee and assessed them to tax. The income determined in the case of the firm was allocated to the partners and the partners were also assessed on the share income which included the loans treated as income under s. 69D.
3. The petitioners preferred an appeal against the assessment order. The appellate authority rejected the appeal. Second appeal to the Tribunal has also been rejected on 25th March, 1985. Then the assessee moved an application before the Tribunal for making a reference to the High Court, but the same was rejected. Therefore, the petitioners have filed this present petition challenging the validity of s. 69D of the Act.
4. It may be relevant to mention that s. 69D of the IT Act was added in the IT Act by the Taxation Laws (Amendment) Act, 1975. (Act No. 41 of 1975) w.e.f. 1st April, 1977.
5. The learned counsel for the petitioners submitted that the said provision is ultra vires of Art. 14 of the Constitution as arbitrary and is also violative of Art. 19(1)(g), as it interferes with the right of the petitioners freedom to trade.
6. Shri V. K. Tankha, learned counsel for the Revenue, has submitted that the provision nowhere violates the right of the petitioners under Arts. 14 or 19(1)(g) of the Constitution and s. 69D is a regulatory measure and the purpose of incorporating this provision is to check the evasion of the tax and circulation of the black money by hundis as it is difficult to regulate such money transaction, therefore, such stringent provision was introduced.
7. In order to appreciate the contentions of the learned counsel, it will be necessary to refer to the provision of s. 69D of the IT Act, which reads as under :
"Sec. 69D : Amount borrowed or repaid on hundi. - Where any amount is borrowed on a hundi from, or any amount due thereon is repaid to, any person otherwise than through an account payee cheque drawn on a bank, the amount so borrowed or repaid shall be deemed to be the income of the person borrowing or repaying the amount aforesaid for the previous year in which the amount was borrowed or repaid, as the case may be :
Provided that, if in any case any amount borrowed on a hundi has been deemed under the provisions of this section to be the income of any person, such person shall not be liable to be assessed again in respect of such amount under the provisions of this section on repayment of such amount.
Explanation. - for the purposes of this section, the amount repaid shall include the amount of interest paid on the amount borrowed."
A bare perusal of s. 69D clearly shows that it lays down that any amount so borrowed on hundi from any person or any amount thereon is repaid to any person otherwise than through an account payee cheque drawn on the bank, the amount so borrowed or repaid, shall be deemed to be the income of the person borrowing or repaying the amount for previous year in which the amount was borrowed or repaid, as the case may be. The proviso lays down that the income which has been deemed to have been income in that section, will not be liable to be assessed again in respect of such amount under the provision of this section or repayment of such amount. The Explanation further provides that the amount repaid shall include the amount of interest paid on the amount borrowed.
8. Shri V. K. Tankha, learned counsel for the Revenue has submitted that similar provision exists in s. 40A(3) which also provides that any expenditure for a sum of Rs. 2,500 (Rs. 10,000 now by virtue of 1987 amendment), shall not be allowed to be deducted if not made by a crossed cheque drawn on the bank or by a crossed bank draft. The learned counsel has submitted that the attempt on the part of the legislature has been increasingly to check the evasion of tax and amassing the black money. Therefore, in order to see that all the transactions are transparent, the legislature is insisting that the transaction should be through the medium of the bank so that such transaction can be examined properly. In this connection, the learned counsel has invited our attention to the case of Attar Singh Gurmukh Singh vs. ITO (1991) 191 ITR 667 (SC) wherein s. 40A(3) of the IT Act, 1961, came up for challenge being ultra vires of Arts. 14 and 19(1)(g) of the Constitution of India and while upholding the validity of this Act, their Lordships observed :
"In our opinion, there is little merit in this contention. Sec. 40A(3) must not be read in isolation or to the exclusion of r. 6DD. The section must be read along with the rule. If read together, it will be clear that the provisions are not intended to restrict the business activities. There is no restriction on the assessee in his trading activities. Sec. 40A(3) only empowers the AO to disallow the deduction claimed as expenditure in respect of which payment is not made by crossed cheque or crossed bank draft. The payment by crossed cheque or crossed bank draft is insisted on to enable the assessing authority to ascertain whether the payment was genuine or whether it was out of the income from undisclosed sources. The terms of s. 40A(3) are not absolute. Considerations of business expediency and other relevant factors are not excluded. Genuine and bona fide transactions are not taken out of the sweep of the section. It is open to the assessee to furnish to the satisfaction of the AO the circumstances under which the payment in the manner prescribed in s. 40A(3) was not practicable or would have caused genuine difficulty to the payee .........................................
If the payment is made by a crossed cheque drawn on a bank or a crossed bank draft, then it will be easier to ascertain, when deduction is claimed, whether the payment was genuine and whether it was out of the income from disclosed sources. In interpreting a taxing statute, the Court cannot be obvious of the proliferation of black money which is under circulation in our country. Any restraint intended to curb the chances and opportunities to use or create black money should not be regarded as curtailing the freedom of trade or business."
Shri V. K. Tankha has also invited our attention to various other judgments with reference to s. 40A(3), i.e., Sajowanlal Jaiswal vs. CIT (1976) 103 ITR 706 (Ori) U.P. Hardware Store vs. CIT (1976) 104 ITR 664 (All) and Attar Singh Gurmukh Singh vs. ITO (1982) 136 ITR 589 (P&H) The aforesaid reasoning is applicable in the present case also. The whole idea behind checking this payment by way of hundi is that it does not lend transparency to the transaction whereas in the transaction through the bank loan, there is transparency as the transactions can be verified.
9. In this connection, our attention was also invited to s. 269SS of the Act regarding taking or accepting certain loans and deposits. Sec. 269SS reads as under :
"Sec. 269SS. - No person shall, after the 30th day of June, 1984, take or accept from any other person (hereinafter in this section referred to as the depositor), any loan or deposit otherwise than by an account payee cheque or account payee bank draft, if, -
(a) the amount of such loan or deposit or the aggregate amount of such loan and deposit, or
(b) on the date of taking or accepting such loan or deposit, any loan or deposit taken or accepted earlier by such person from the depositor is remaining unpaid (whether repayment has fallen due or not), the amount or the aggregate amount remaining unpaid;
(c) the amount or the aggregate amount referred to in cl. (a) together with the amount or the aggregate amount referred to in cl. (b), ten thousand rupees or more :
Provided that the provisions of this section shall not apply to any loan or deposit taken or accepted from, or any loan or deposit taken or accepted by, -
(a) Government;
(b) any banking company, post office savings bank or co-operative bank;
(c) any corporation established by a Central, State or Provincial Act;
(d) any Government company as defined in s. 617 of the Companies Act, 1956 (1 of 1956);
(e) such other institution, association or body or class of institutions, associations or bodies which the Central Government may, for reasons to be recorded in writing, notify in this behalf in the Official Gazette.
[The following second proviso shall be inserted by the Direct Tax Laws (Amendment) Act, 1987, w.e.f. 1st April, 1989] :
Provided further that the provisions of this section shall not apply to any loan or deposit where the person from whom the loan or deposit is taken or accepted and the person by whom the loan or deposit is taken or accepted are both having agricultural income and neither of them has any income chargeable to tax under this Act.
Explanation : For the purposes of this section, -
(i) banking company means a company to which the Banking Regulation Act, 1949 (10 of 1949), applies and includes any bank or banking institution referred to in s. 51 of that Act;
(ii) "co-operative bank" shall have the meaning assigned to it in part v of the Banking Regulation Act, 1949 (10 of 1949);
(iii) loan or deposit means loan or deposit of money."
The validity of s. 269SS has already been upheld by the Madras High Court in the case of K.R.M.V. Ponnuswamy Nadar Sons (Firm) vs. Union of India (1990) Taxation 96(3)-446 (Mad).
10. Here also loan transactions have to be through bank cheques so that they can be verified. Thus, there is anxiety on the part of legislature to see that all transactions should be open through banking system so that authenticity of same can be verified. Therefore, in view of the above discussions, we are of the opinion that s. 69D of the Act does not suffer from any vice of offending Art. 14 or 19(1)(g) of the Constitution of India. Hence, there is no merit in this petition and the same is dismissed. The amount of security if any, shall be refunded to the petitioners. No order as to costs.