Case: Assistant Director of Inspection Investigation Vs. Kum. A.B. Shanthi

K.G. Balakrishnan, J. 1. In both these appeals, the constitutional validity of S.269SS and 271D of the Income Tax Act, 1961 (for short, "the Act"), is challenged. In Criminal Appeal No. 601 of 1992, the learned single Judge of the Madras High Court quashed the prosecution initiated against the respondent by holding that S.269SS is violative of Art.14 of the Constitution and, therefore, the prosecution initiated against the respondent was not legal. The learned single Judge granted certificate under Art.134A of the Constitution and the present appeal has been filed by the Department.2. In Civil Appeal No. 4478 of 2000, the appellant had challenged the constitutional validity of S.269SS and 271D of the Act before the High Court. The learned single Judge dismissed the writ petition. Thereupon the appellant filed an appeal before the Division Bench. The Division Bench in Writ Appeal No. 5447 of 1999 affirmed the order of the learned single Judge. The judgment of the Division Bench is now challenged before us in this appeal. 3. S.269SS was inserted in the Income Tax Act by Finance Act, 1984 with effect from 1-4-1984, but the same was made operative from 1-7-1984. The Income Tax Department, in course of searches carried out by them from time to time recovered large amounts of unaccounted cash from certain tax payers and often the tax payers gave explanation for their unaccounted cash to the effect that they had borrowed loans or received deposits made by other persons. Sometimes, it was noticed, that the unaccounted income was also brought into the books of accounts in the form of loans and deposits and later they would obtain confirmatory letters from other persons in support of their explanation. The Department was not able to unearth the source of such unaccounted cash. Therefore, in order to plug the loopholes and to put an end to the practice of giving false and spurious explanation by tax payers, a new provision was inserted in the Income Tax Act debarring persons from taking or accepting from any other person any loan or deposit otherwise than by account payee cheque or account payee bank draft, if the amount of such loan or deposit or the aggregate amount of such loan or deposit is Rs. 10,000/- or more. The amount of Rs. 10,000/- was later revised as Rs. 20,000/- with effect from 1-4-1989. 4. S.269SS of the Act, 1981 reads as follows : "S.269SS. Mode of taking or accepting certain loans and deposits.- No person shall, after the 30th day of June, 1984, take or accept from any other person (hereafter 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; or (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), is twenty 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 cooperative 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 : 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) "cooperative 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." 5. S.276DD was inserted in the Act by the Finance Act, 1984 which came into effect from 1-4-1984 and which reads as under : "S.276DD. Failure to comply with the provisions of S.269SS.- If a person without reasonable cause or excuse, takes or accepts any loan or deposit in contravention of the provisions of S.269SS, he shall be punishable with imprisonment for a term which may extend to two years and shall also be liable to fine equal to the amount of such loan or deposit." Subsequently, S.271D, which is the penal clause in the Act which provides for imposition of penalty for failure to comply with the provisions of S.269SS was introduced with effect from 1-4-1989 omitting S.276DD with effect from the same date. In the original S.276DD, in case of imposition of punishment, the term of imprisonment was also prescribed which could extend to two years. But, subsequently, by the introduction of S.271D, the punishment of imprisonment was taken away and the failure to comply with the provisions of S.269SS could only be visited with a penalty of fine equal to the amount of loan or deposit to be taken or accepted. S.271D as incorporated with effect from 1-4-1989 reads as follows : "271D. Penalty for failure to comply with the provisions of S.269SS.- (1) If a person takes or accepts any loan or deposit in contravention of the provisions of S.269SS, he shall be liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit so taken or accepted. (2) Any penalty imposable under sub-section (1) shall be imposed by the Deputy Commissioner." 6. The main attack against S.269SS of the Act is made on the basis that it violate Art.14 of the Constitution. The contention of the appellants - counsel in civil appeal is that taking a loan or receiving a deposit is a single transaction wherein a lender and borrower are involved and by the impugned section the borrower alone is sought to be penalized and the lender is allowed to go scot free. It is contended that if the intention of the Legislature is to unearth black money, it is really the black money of the lender that is involved in the transaction and, therefore, the policy behind the enactment to find fault with the borrower is illegal and violative of Art.14 of the Constitution vis a vis the lender. It is also contended that classification made by Parliament is an artificial one and has no nexus with the objects sought to be achieved by the enactment. 7. The contention of the appellants counsel has no force. The object of introducing S.269SS is to ensure that a tax payer is not allowed to give false explanation for his unaccounted money, or if he has given some false entries in his accounts, he shall not escape by giving false explanation for the same. During search and seizures, unaccounted money is unearthed and the tax payer would usually give the explanation that he had borrowed or received deposits from his relatives or friends and it is easy for the so called lender also to manipulate his records later to suit the plea of the tax payer. The main object of S.269SS was to curb this menace. As regards the tax legislations, it is a policy matter, and it is for the Parliament to decide in which manner the legislation should be made. Of course, it should stand the test of constitutional validity. 8. A Constitution Bench of this Court in S. K. Dutta, I.T.O. v. Lawrence Singh Ingty, 1968 (68) ITR 272 : AIR 1968 SC 658 , held : " It in not in dispute that taxation laws must also pass the test of Art.14. That has been laid down by this court in Moopli Nair v. State of Kerala 1961 (3) SCR 77. But as observed by this Court in East India Tobacco Co. v. State of Andhra Pradesh 1963 (1) SCR 404 : AIR 1962 SC 1733 , in deciding whether the taxation law is discriminatory or not in is necessary to bear in mind that the State has a wide discretion in selecting persons or objects and not others; it is only when within the range of its selection, the law operates unequally, and that cannot be justified on the basis of any valid classification, that it would be violative of Art.14, it is well settled that a State does not have to tax everything in order to tax something. It is allowed to pick and choose districts, objects, persons, methods and even rates for taxation if it does so reasonably." 9. The above dictum applies in full force as regards the present case. The object sought to be achieved was to eradicate the evil practice of making of false entries in the account books and later giving explanation for the same. To a great extent, the problem could be solved by the impugned provision. 10. The very same provision was earlier challenged in another writ petition before the High Court of Madras and the Division Bench of the Madras High Court had upheld the constitutional validity of S.269SS in K. R. M. V. Ponnuswamy Nadar Sons v. Union of India, (1992) 196 ITR 431 (Mad) decided on Sept. 11, 1989. Despite this decision of the Division Bench, the learned single Judge quashed the proceedings initiated against the respondent under S.269SS of the Income Tax Act. 11. A Division Bench of the Gujarat High Court in Sukhdev Rathi v. Union of India, (1995) 211 ITR 157 (Guj), also upheld the constitutional validity of S.269SS. Speaking for the Bench, Acting Chief Justice G. T. Nanavati (as he then was) held : "A borrower by adopting the device of giving a false explanation or making false entries or by obtaining confirmatory letters is found evading payment of tax. Thus, the borrower as a class is found to be indulging in such practices. By making such false entries or by giving explanations or by creating false evidence. It is the borrower who was found to be evading payment of tax. In the case of a lender, we fail to appreciate how while lending money by not making payment by a cheque or a draft, he would evade payment of income tax. Therefore, though the transaction of loan can be regarded as a single transaction, and the borrower and the lender can be said to be equal integral parts, when we view them from the angle of tax evasion, we find that they cannot be regarded as equal or similarly situated. Compared to the class consisting of lenders, the class consisting of borrowers can be said to be in a position to evade tax by adopting the device, for curbing which provisions have been made in Chapter XXB by inserting S.269SS and other sections." 12. In view of the aforesaid circumstances, we do not think that S.269SS is, in any way, violative of Art.14 of the Constitution and consequently quashing of the proceedings by the learned single Judge of the Madras High Court for this reason is not legally sustainable. 13. Another contention urged by the appellants counsel in Civil Appeal No. 4478 of 2000 is that the Parliament had no legislative competence to enact S.269SS. The source of power for enactment of S.269SS is traceable to Entry 82 in List I of the 7th Schedule and this according to the appellants counsel can relate only to tax on income other than agricultural income and the expression "income" in that entry has to be interpreted according to its natural and grammatical meaning and if that be so, the Union has no legislative power to enact S.269SS. 14. Entry 82 in List of the 7th Schedule reads as follows : "Taxes on income other than agricultural income." 15. The contention of the appellants counsel is that the amount which is received as loan or deposit need not necessarily be the "Income" of the tax payer and, therefore, any legislation made by treating the loan or deposit as "income" is not a valid constitutional legislation. It is settled law that the heads of legislation given in the list should not be constructed in a narrow or pedantic way. If any Legislature makes any ancillary or subsidiary provision which incidentally transgresses over its jurisdiction for achieving the object of such legislation, it would be a valid piece of legislation. The entries in a legislative list should be given their fullest meaning and the widest amplitude and be held to extend to all ancillary and subsidiary matters which can fairly and reasonably be said to be comprehended in them. It is only when a legislature which has no power to legislate, or the legislation is camouflaged in such a way as to appear to be within its competence when it knows it is not, then alone it can be said that the legislation so enacted is a colourable legislation and that there is no legislative competence. The law relating to taxation can very well be enacted under Entry 82 in List I of the 7th Schedule. If any legislation which intended to achieve the collection of Income Tax and to make it easier and systematic is enacted, such legislation would certainly be within the competence of the Legislature. 16. In Union of India v. A. Sanyasi Rao and others,1996 219 ITR 330 : AIR 1996 SC 1219 , S.44AC and 206C of the Income tax Act were challenged. It was held by this Court : "The heads of legislation in the lists should not be construed in a narrow and pedantic sense, but should be given a large and liberal interpretation. The word "income" occurring in Entry 82 in List I of the Seventh Schedule to the Constitution should be construed liberally and in a very wide manner and the power to legislate will take in all incidental and ancillary matters including the authorization to make provision to prevent evasion of tax, in any suitable manner." 17. When the principle in a statute is challenged on the ground of colourable legislation, what has to be proved to the satisfaction of the Court is that though the Act ostensibly is within the legislative competence of the Legislature in question, in substance and in reality, it covers a field which is outside its legislative competence (See : Jaora Sugar Mills (P) Ltd. v. State of M.P., AIR 1966 SC 416 ). 18. Applying the above principle, it cannot be said that S.269SS was enacted in respect of a subject which is outside the scope of the Income Tax Act or that this section relates to a topic not within the competence of the Legislature. This Court in P. N. Krishna Lal v. Govt. of Kerala, 1995 Supp (2) SCC 187 : 1995 AIR SCW 1325, held : "An entry in the Seventh Schedule to the Constitution is not a power given to the legislature but is field of its legislation. The legislature derives its power under Art.246 and other related articles in the Constitution. The language of an entry should be given the widest meaning fairly capable to meet the need of the Government envisaged by the Constitution. Each general word should extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended within it. When the vires of an enactment is impugned, there is an initial presumption of its constitutionality. If there exists any difficulty in ascertaining the limits of the legislative power, it must be resolved, as far as possible, in favour of the legislature, putting the most liberal construction on the legislative entry so that it is intra vires. Narrow interpretation should be avoided and the construction to be adopted must be beneficial and cover the amplitude of the power. The broad liberal spirit should inspire those whose duty it is to interpret the Constitution to find out whether the impugned Act is relatable to one or the other entries in the relevant list. The allocation of the subjects of the entries in the respective lists is not done by way of a scientific or logical definitions but it is a mere enumeration of broad and comprehensive categories. 19. Therefore, we do not think that S.269SS is either violative of Art.14 of the Constitution, or it was enacted without legislative competence.20. The next contention urged by the counsel for the appellant is that original S.276DD is draconian in nature as penalty imposed for violation of S.269SS is imprisonment which may extend to two years and shall also be liable to fine equal to the amount of loan or deposit. This section was subsequently omitted and a new S.271D was enacted. The penalty of imprisonment was deleted in the new section. The new S.271D provides only for fine equal to the amount of loan or deposit taken or accepted. 21. It is important to note that another provision, namely S.273B was also incorporated which provides that notwithstanding anything contained in the provisions of S.271D, no penalty shall be imposable on the person or the assessee, as the case may be, for any failure referred to in the said provision if he proves that there was reasonable cause for such failure and if the assessee proves that there was reasonable cause for failure to take a loan otherwise than by account payee cheque or account payee demand draft, then the penalty may not be levied. Therefore, undue hardship is very much mitigated by the inclusion of S.273B in the Act. If there was a genuine and bona fide transaction and if for any reason the tax payer could not get a loan or deposit by account payee cheque or demand draft for some bona fide reasons, the authority vested with the power to impose penalty has got discretionary power.22. In that view of the matter, we do not think that S.269SS or 271D or the earlier S.276DD is unconstitutional on the ground that it was draconian or expropriatory in nature.

Decision reasoning: 1[ds]7. The contention of the appellants counsel has no force. The object of introducing S.269SS is to ensure that a tax payer is not allowed to give false explanation for his unaccounted money, or if he has given some false entries in his accounts, he shall not escape by giving false explanation for the same. During search and seizures, unaccounted money is unearthed and the tax payer would usually give the explanation that he had borrowed or received deposits from his relatives or friends and it is easy for the so called lender also to manipulate his records later to suit the plea of the tax payer. The main object of S.269SS was to curb this menace. As regards the tax legislations, it is a policy matter, and it is for the Parliament to decide in which manner the legislation should be made. Of course, it should stand the test of constitutionalis settled law that the heads of legislation given in the list should not be constructed in a narrow or pedantic way. If any Legislature makes any ancillary or subsidiary provision which incidentally transgresses over its jurisdiction for achieving the object of such legislation, it would be a valid piece of legislation. The entries in a legislative list should be given their fullest meaning and the widest amplitude and be held to extend to all ancillary and subsidiary matters which can fairly and reasonably be said to be comprehended in them. It is only when a legislature which has no power to legislate, or the legislation is camouflaged in such a way as to appear to be within its competence when it knows it is not, then alone it can be said that the legislation so enacted is a colourable legislation and that there is no legislative competence. The law relating to taxation can very well be enacted under Entry 82 in List I of the 7th Schedule. If any legislation which intended to achieve the collection of Income Tax and to make it easier and systematic is enacted, such legislation would certainly be within the competence of the Legislature.It is important to note that another provision, namely S.273B was also incorporated which provides that notwithstanding anything contained in the provisions of S.271D, no penalty shall be imposable on the person or the assessee, as the case may be, for any failure referred to in the said provision if he proves that there was reasonable cause for such failure and if the assessee proves that there was reasonable cause for failure to take a loan otherwise than by account payee cheque or account payee demand draft, then the penalty may not be levied. Therefore, undue hardship is very much mitigated by the inclusion of S.273B in the Act. If there was a genuine and bona fide transaction and if for any reason the tax payer could not get a loan or deposit by account payee cheque or demand draft for some bona fide reasons, the authority vested with the power to impose penalty has got discretionary power.22. In that view of the matter, we do not think that S.269SS or 271D or the earlier S.276DD is unconstitutional on the ground that it was draconian or expropriatory in nature.