Applicability of Section 269T

This query is : Resolved

Querist : Anonymous

Querist : Anonymous (Querist)

30 October 2010

One firm has taken a vehilcle loan for financing the purchase of a vehicle. The vehicle is sold and as a result of which the firm repays the loan amount by way of cash from a financing company. Whether the provisions will be covered by S 269 T of the Income-tax Act, 1961.

Learned members views are solicited. thanks in Advance

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Guest (Expert)

30 October 2010 CHAPTER XX-B

REQUIREMENT AS TO MODE OF ACCEPTANCE AND REPAYMENT OF CERTAIN LOAN OR DEPOSIT
[SECTION 269SS AND 269T]

Section 269SS: No person shall take or accept any Loan or Deposit from any person otherwise than by way of an Account Payee Cheque or an Account Payee Draft, if:

(1.) The amount of Loan or Deposit, or
(2.) If any Loan or Deposit was taken earlier and has remained unpaid (whether repayment has fallen due or not), then the amount of such Loan or Deposit together with interest, or
(3.) The aggregate amount of (1.) and (2.)

is Rs. 20,000/- or more.

Exceptions: The provisions of Sec. 269SS do not apply on any Loan or Deposit taken or accepted from or by:-

(a.) Government,
(b.) Any Government Company,
(c.) Any Statutory Corporation,
(d.) Any Banking Company, Post Office Savings Bank or any Co-Operative Bank (i.e. any Bank) and
(e.) Any other Institution as the Central Government may notify,
(f.) A case where, the Lender and the Borrower, both are Agriculturists and have no other income chargeable to tax in India under the Income Tax Act.

Default: Any Loan or Deposit taken or accepted in violation of the provisions of Sec. 269SS shall attract a Penalty U/S 271D, which shall be equivalent to the amount of Loan or Deposit taken or accepted in violation of Sec. 269SS. Penalty will be levied on the person who has taken or accepted the Loan or Deposit in violation of Sec. 269SS.

Points to be noted about Section 269SS:

(i.) Power to impose Penalty is discretionary in nature. If there was a default due to circumstances beyond the control of the assessee, then as per Sec. 273B, no penalty shall be levied. The apex Court in ADIT v/s Kum. A.B. Shanthi (2002), held that if there was a genuine and bonafide transaction and the taxpayer could not get a Loan or Deposit by way of an Account Payee cheque or an Account Payee Draft for some bonafide reason, then Penalty U/S 271D can not be levied.
(ii.) In CIT v/s Noida Toll Bridge Co. Ltd. (2003) (Del.) it was held that if there was no cash loan, no penalty can be levied U/S 271D. Where, Loan was obtained by way of journal entry, it does not amount to violation of Sec. 269SS, hence, no penalty can be levied U/S 271D.
(iii.) Transactions between sister concerns in current accounts for short and temporary period was held not to be a Loan or Deposit in Patiram Jain and Others v/s Union of India (1996) (MP).
(iv.) In Asst. CIT v/s Jag Vijay Auto FinancePvt. Ltd. (2000) (Jaipur) it was held that if the amount was transferred through Transfer Vouchers by the Bank, then the spirit of Sec. 269SS is not violated therefore, no penalty shall be imposed.
(v.) In Shrepak Enterprises v/s Deputy CIT (1998) (Ahemdabad) it was held that the payments received by partners of the firm from the firm do not partake the character of Loan or Deposit. Provisions of Sec. 269SS do not apply to such situations.
(vi.) Assessee established that the Loan was taken in cash in excess of Rs. 20,000/- to avail 2% discount by making payment in time to suppliers of raw materials. The bonafide intention of the assessee was established and therefore, penalty U/S 271D was deleted in CIT v/s Parmanand (2002) (Delhi) and also in CIT v/s Manoj Lalwani (2002) (Rajasthan).
(vii.) If Cash is found to have been credited in the Books of Accounts of the assessee and the amount of such cash credited is in excess of Rs. 20,000/- and the assessee has no explanation for the same, then A.O. can either invoke Sec. 269SS and levy penalty U/S 271D or he can invoke Sec. 68 and assess the unexplained cash credit as the income of the assessee, but he can not invoke both the sections simultaneously.

Section 269T: No Person shall repay any Loan or Deposit, otherwise than by way of an Account Payee Cheque or an Account Payee Draft, if:

(1.) The amount of such Loan or Deposit, together with Interest thereon, if any, or
(2.) If any Loan or Deposit along with interest if any, is remaining unpaid, whether repayment of the same has fallen due or not,

is Rs. 20,000/- or more.

Exceptions: The provisions of Sec. 269T do not apply on repayment of any Loan or Deposit taken or accepted from or by:-

(g.) Government,
(h.) Any Government Company,
(i.) Any Statutory Corporation,
(j.) Any Banking Company, Post Office Savings Bank or any Co-Operative Bank (i.e. any Bank) and
(k.) Any other Institution as the Central Government may notify.

Default: Any Loan or Deposit repaid in violation of the provisions of Sec. 269T shall attract a Penalty U/S 271E, which shall be equivalent to the amount of Loan or Deposit repaid in violation of Sec. 269T. Penalty will be levied on the person who has repaid the Loan or Deposit in violation of Sec. 269T. (No cumulative Penalty shall be levied U/S 271D and U/S 271E).