Income Tax Taxation

Penalty for Breach of Section 269SS of the Income Tax Act, 1961-Judgement

Finance plays a significant role in every business. In many circumstances, the own finances of an individual are not sufficient to fulfill the requirements of his or her business, so he has to take loans or deposits. There are some restrictions imposed by the Income-tax Department under section 269SS.

The assessee argued that there were lack of banking facilities in the area etc. But the court rejected the argument stating that this point cannot be accepted as reasonable cause for accepting deposits in cash exceeding the set prescribed limit that too when the assessee was doing a large scale finance dealing with the public.

Before discussing the case, let us first take a brief on the related sections, which will be discussed below, i.e., Section 269SS, 271D, 273B of the Income Tax Act, 1961.

What is Section 269SS of the Income Tax Act, 1961?

According to Section 269SS  of the Income Tax Act, 1961 any deposit, loan or any specific amount should not be accepted or taken from any person/individual other than an account payee cheque or by an electronic clearing system through a bank account, if-

1. The amount of loan/ deposit / specified sum is Rs. 20,000 or more.
2. The sum total amount of loan, deposit, and the specified sum is Rs. 20,000 or more.
3. In a case a person had already received a loan, deposit or specified sum from the depositor (person giving the loan, deposit or specified sum) but the loan or deposit or specified sum hasn’t been paid back in such case, if the unpaid loan or deposit or-specified sum is Rs. 20,000 or more, or
4. Therefore, in a nutshell, a person cannot accept cash loan or deposit of Rs. Twenty thousand or more from another person.

Penalty under Section 271D of the Income Tax Act, 1961

S. 271D of the Income Tax Act, 1961, sets the penalty which is to be imposed on a taxpayer for accepting or taking any loans, deposits, or any other specified amounts in breach of Section 269SS. As per Section 269SS of the Income Tax Act, 1961 all loans or deposits of over Rs.20, 000 must be taken through banking channels.

The provisions of Section 271D lays down the penalty as enumerated below:

• In case a person takes or accepts any loan or deposit or specified sum, he shall be liable to pay by way of the penalty a sum equal to the amount of the loan or deposit or a specified sum so taken or accepted.
• Any penalty imposed by the Joint Commissioner.

Penalty under Section 273B of the Income Tax Act, 1961

The assessee shall not be levied any penalty if he proves that there was a reasonable cause for the breach of Section 269SS of the Income Tax Act, 1961.

The case before the High Court of Kerala “N.S.S. Karayogam vs. Commissioner of Income Tax.”

C.K. Abdul Rehim and Mrs.Anu Sivaraman, JJ. IT Appeal No.228 of 2019, October 30, 2019

Summary of the Case

Here the judgment was made as per Section 269SS of the Income Tax Act, 1961, read with section 271D and section 273B.

 The assessee, a society defaulted in the mode of accepting payment/deposits in the assessment year 2005-2006. The assessing officer found that the assessee society conducted finance business by violating the provisions laid down in section 269SS of the Income Tax Act, 1961. They accepted deposits/payments in cash from various clients exceeding a sum of Rs. 20,000 and hence imposed a penalty as per Section 271D.

The question that arises here is whether the claim of being unaware about the provisions of laws or an argument made regarding lack of banking facility in the area can be accepted here as reasonable cause for accepting deposits in cash, when the assessee was doing large scale finance business dealing with the public. Whether it should be proved that there existed any reasonable and acceptable cause for not accepting the loans through crossed cheques or demand drafts is a mere proof regarding the genuineness of transaction or intention in accepting cash or that there was no attempt to induct black money into the business. It cannot be considered as a reasonable cause or an extraordinary situation provided in section 273B to avoid penal action under section 271D.

Whether when knowingly an assessee was a company doing finance business of money lending and receiving deposits, the contention of the assessee that both parties to transactions were having agricultural income and, therefore, transactions would fall within the purview of 2nd proviso to section 269SS could be accepted.

Whether there being nothing to indicate that assessee had got any registration as a banking company, or that assessee was a ‘non-banking financing company,’ contention of the assessee that it would fall within the exempted category of banking company contained under 1st proviso to section 269SS could not be accepted

Whether, on facts, the assessee would not be protected by provisions of section 273B and penalty was rightly levied upon assessee under section 271D.

The cases referred to while making Judgments are as follows:

• K.V. George v. CIT [2014](Ker)  (Para 3)
• Listin Stephen v. Dy. CIT 2019 (2) KLT 221 (para 4)
• Asstt. Director of Inspection (Investigation) v. Kumari A.B. Santhi 2002 (2) KLT Online 1007 (SC) (para 6)
• Grihalakshmi Vision v. Addl. CIT 2015 (4) KLT SN 88 (para 6)
• CIT Thrissur v. Al Ameen Educational Trust 2018 (1) KLT Online 3133 (para 6).

Counsels for the Case:

Advocates for Appellant

• Senior Advocate T.M. Sreedharan
• Adv. Smt. Nisha John,
• Adv. V.P Narayan
• Adv. Divya Ravindran
• Adv. R. Bhaskara Krishnan

Advocates for the Respondent

• Senior Advocate P.K. Ravindranatha Menon
• Senior Counsel Jose Joseph

Order Made by Justice C.K. Abdul Rehim

The assessee society had filed this appeal challenging an order of the Income-tax Appellate Tribunal of the Cochin Bench in ITA No. 475/Coch/2018, dated 8-5-2019, where its appeal was dismissed by the appellant challenging an order of the first appellate authority, which is the commissioner of the Income Tax(Appeals), dated 9^th July, 2018. The respondent in this appeal is Revenue.

Facts of the Case

• The appellant society was formed in the year 1951. It is a company which is registered under section 25 of the Companies Act, 1956 (Old provision), now it is Section 8 of the Companies Act, 2013. While preparing the income tax assessment of the appellant with respect to the year 200-2006, the assessing officer found that during the previous year relevant to the assessment year concerned, the assessee had conducted its finance business by violating the provisions contained in Section 269SS of the Income Tax Act, 1961. They accepted deposits in cash from many of its clients, where the sum exceeded the amount of Rs. 20,000.

The assessing authority recommended that the penalty provision to be made as per section 271D of the Income Tax Act. This was initiated by the Additional Commissioner of Income Tax, Alappuzzha Range. To a notice proposing the imposition of penalty, the appellant replied that it is a charitable organization rendering social services to the weaker section of the society, having no income chargeable to tax under provisions of the Act. It is stated that the appellant was under a bona fide belief that the provisions of the Income-tax would not apply to them, being a charitable organisation. It was contended that, under the 2nd proviso to Section 269SS, there exists an exemption because the depositor, as well as the acceptor, has got agricultural income. It was also contended that the violation, if any, was only due to the ignorance, which need to be condoned. At the time of hearing afforded to the appellant, the contentions were reiterated. The original authority found that the transactions in question will not fall within the category provided under the 2nd proviso to Section 269SS of the Income Tax Act. It was held that there occurred a clear contravention of Section 269SS on the part of the assessee, without any reasonable cause and that they are liable to be imposed with penalty under section 271D. The contention based on the ignorance, put forth, was not accepted, by holding that the assessee was doing large scale finance business dealing with the public, extending to crores of rupees. Therefore the ignorance of the provisions of law cannot be put forth as an excuse. It is further found that the contention put forth to the effect that the appellant had no motive to violate the law will not, in any manner, help the assessee to escape from the penal provisions. Therefore penalty to the tune of Rs. 4,74,46,248/- was imposed under section 271D.

 The appellant was unsuccessful in the first appeal filed before the CIT (Appeals). They were also unsuccessful before the Appellate Tribunal in the first round of the second appeal. In an Income-tax Appeal filed for challenging the said order before this court, in ITA No. 19/2014, the matter was demanded for fresh consideration by the Assessing Officer. It was considered before based on the decision reported in K.V. George v. CIT [2014] that the authorities have failed to consider the aspect of ‘reasonable cause’ contemplated under section 273B, on the factual matter that there existed no banking facility in the locality and most of the depositors are pensioners and agriculturists.

 It was also argued that there could be more than one reason as to what was the need to accept the money in cash , also ignoring the provision or stating  non-availability of banking facility in the locality, area etc. Further, the debate was raised to the effect that there was failure to ensure if the entire cash receipts were the subject matter of penalty, were above Rs. 20,000/- or below. This court found that going through the orders of the Assessing Officer and the first appellate authority and Appellate Tribunal. There exists inconsistency in the explanations of the assessee with respect to what was the ‘reasonable cause’ for receiving the amounts in cash in violation of section 269SS. This Court found that, while referring to the scope of section 269SS of the Income Tax Act, 1961 in K.V.George’s case (supra) it was clearly held that, the only consideration would be as to what was the ‘reasonable cause’ for receiving such a big amount of money by way of cash or what was the reason for not receiving the loan or deposit by way of account payee check or demand draft. It was found that the burden is on the assessee to establish such ‘reasonable cause’ in a convincing manner. However, the matter was remitted back by this court to the Assessing Officer for fresh consideration, mainly on the basis that it has to be re-checked as to whether all the transactions are with respect to amounts above Rs. 20,000/-. Incidentally, it was observed that even though there is no specific, consistent stand with respect to the reasonable cause, since the matter is remitted back, no prejudice would be caused to the revenue if an opportunity is given to the assessee to explain such transactions. Therefore the officer was directed to accept the explanation if any offered by the assessee.

Judgment of the Case

• After looking into the whole matter, the original authority had considered the issue afresh. The court here, after finding that the assessee could not establish any ‘reasonable cause’ regarding the acceptance of the deposits in cash, exceeding a permissible limit, imposition of the penalty was also re-affirmed. However, after verification of the transactions of deposit, the amount of penalty was decided again to Rs. 4, 74, 15,591. The appellant challenged the new order in appeal before the first appellate authority and then subsequently before the Tribunal. It was simultaneously found that the assessee failed in discharging the burden by establishing that there existed some ‘reasonable cause’ for not receiving the deposits by way of account payee cheque or demand drafts. Thus, they have failed in proving to the officer with regard to the existence of any ‘reasonable cause’ as considered under section 273B, regarding the interpretation which was contained in K.V. George’s case (supra).

• In front of the Tribunal, it was held that the management of the assessee had no knowledge of the penal provisions and that they had no intention to evade tax or for the introduction of black money in the business in accepting the cash deposits. But the Tribunal relied on the decision of the Court in Listin Stephen v. Dy. CIT 2019 (2) KLT 221 (authored by C.K.Abdul Rehim, J.), where it held that the assessee in the case at hand was unable to prove that there existed forceful circumstances for accepting deposits in cash and therefore there exists no ‘reasonable cause’ as mandated under section 273B of the Act. Accordingly, the second appeal was also dismissed.

Heard by Sri.T.M.Sreedharan, learned Senior Counsel appearing for the appellant and Sri.P.K.Raveendranatha Menon, Senior Standing Counsel for Government of India (Taxes) appearing for the Revenue.

• By referring to the decided cases, it was held that the ‘reasonable cause’ mentioned under section 273B must be a reasonable cause as to why or what was the reason which forced the assessee to accept the loans or deposit in cash. In other words, it needs to be proved that there existed reasonable and acceptable cause for not accepting the loans or deposits through crossed cheques or demand drafts. It was also found that mere proof regarding the genuineness of transaction or the intention in accepting the amounts in cash or that there was no attempt to induct black money into the business etc. cannot be considered as a reasonable cause or as compelling circumstances provided under section 273B to avoid the penal action contemplated under section 271D, with respect to the violation of the provisions contained under section 269SS.

• Analysing the on the basis of the principle and the contention raised all along by the assessee is that it was due to ignorance of the provisions or due to lack of banking facilities in the area, etc., cannot be accepted. Further, the point that both the parties to the transaction were having agricultural income and hence will fall within the purview of the 2nd proviso to Section 269SS cannot also be accepted, because the admitted case here is that the appellant is a company doing finance business of lending money and receiving deposits.

• Lastly, the learned Senior Counsel for the appellant had also raised a debate that the assessee will fall within the exempted category of banking company contained as per the 1st proviso to Section 269SS. The assessee was unable to prove that he has got any registration as per the Banking Regulation Act or not to the effect that the appellant is a non-banking finance company having authorisation from the Reserve Bank of India. Therefore the given argument was not accepted.
•  It is apparent from the Annexure attached to the revised order of the original authority, dated 27-6-2014 that, all the transactions pertaining to the year concerned are listed, and the total amount was computed as Rs. 4,74,15,591. The learned Senior Counsel for the appellant pointed out that the transaction listed under the Annexure includes various amounts that are below the limit of Rs. 20,000/-. If there is any error occurred in the computation of the quantum of penalty, it will be left open to the appellant to seek rectification in that respect before the original authority, who had imposed the penalty.

Subject to the above observations, we do not find that any substantial question of law existing warranting interference with respect to the impugned order passed by the Tribunal. Consequently, the Income-tax appeal fails, and the same was dismissed as limine. The court did not accept any further evidence for making judgment in this case.

Takeaway

In the mentioned case, the loans taken by the appellant did not fall in the agricultural income category.  The assessee is not earning only agricultural income, so the exemption criteria did not work here. The assessee also was not working as a banking company as per the Banking Regulation Act nor as NBFC. So it had to pay the penalty as per provisions laid down in Section 271D of the income tax Act.