269SS special query

[Guest]

If i accepted a loan in kind [some precious metal not authorized as currency of the country ] then whether it gets covered under  Section 269SS??

 A/d to me it shouldn't be as it's supported by the various case laws one of them is Asstt. Cit vs Ruchika Chemicals & Investment (P) Ltd.

Clause (iii) of Explanation to  Section 269SS clarifies the purport of 'loan or deposit' as loan or deposit of money. When this Explanation is read with the main section it brings to light that only the transactions of loans or deposits which are covered within the ambit of this section are that of 'money'. If the loan or deposit transaction is not that of money, then it would go out of the purview of Section 269SS and resultantly no penalty under section 271D can be imposed. The term 'money' has not been defined in this section. It was fairly admitted by-both the sides that the term 'money' is not defined anywhere in the Income Tax Act, 1961. No authority is required to be cited for the proposition that if a term or an expression is not defined in the Act, then the meaning to be assigned to it is as is understood in common parlance. The Hon'ble Supreme Court had the occasion to consider the meaning of term 'money' in Kasturi and Sons Ltd. (supra), in the context of section 41(2) and it was laid down as under :

'It is obvious that the legislature has deliberately used the word 'moneys'. Wherever the legislature intended to refer to payment in kind other than cash or money, it has taken care to provide specifically therefore. For example, in section 41(1) itself, the legislature has used the expression, 'whether in cash or in any other manner whatsoever'. There are several sections in the Act which refer to benefits other than cash through the value thereof can be ascertained in terms of cash or benefits which are convertible in cash (see sections 17, 23(3), 28(iv),40A(2)(a), 93(4)(c)), For example, section 28(iv) speaks of the value of any benefit or perquisite, whether convertible into money or not, arising from business or profession When the legislature has instead of using any word such as 'benefit' used only the term 'money', it can refer only to money as understood in the ordinary common parlance.'

The Shorter Oxford English Dictionary defines 'money' as a current coin; metal stamped in pieces as a medium of exchange and measure of value, b. Hence, anything serving the same purposes as coin, late ME. c. in mod. use applied indifferently to coin and to such promissory documents representing coin (esp, bank-notes) as are currently accepted as a medium of exchange'.

The Law Lexicon by Sh. P. Ramantha Iyer defines 'money' as under :

Money (moneta)-That metal, be it gold or silver, which receives authority by the prince's impress to be current; for as wax is not a seal without a print, so metal is not money without impression. (Co. Ltd. 207). Money is said to be the common measure of all commerce, through the world, and consists principally of three parts, the material whereof it is made, being silver or gold; the denomination or intrinsic value, given by the king, by virtue of his prerogative; and the King's stamp thereon. (1 Hale's Hist. P.H. 188).

The definition of the term 'money' in these dictionaries and as laid down by Apex Court is a pointer to the fact that 'money' means 'cash'. When clause (iii) of the Explanation is read with main section, the natural coroliary that follows is that the restriction contained in section 269SS is against accepting loan or deposit in cash alone. The other modes of loans or deposits including creation of credit through transfer entries are outside the scope of section 269SS

in the same way above transac will be outside the perview of sec 269ss........

Q2:::if in the above trans only if i accept currency of any country as loan & melt it & sell it the market [hidden transaction of melting & selling it] & then repay in cash .269ss will be attracted....

Suppose i hv taken some silver bar [250 gms]  from a person on repayment date I hv to return to him silver only [that too 250 gms] & some charges[quantity oly like 10 gms for 4 months etc] for keeping or using that silver  .

Now 1^st ques is that whether it attracts 269SS or not?

2^nd ques is whether it wil be treated as valid transactions?

3^rd whether it wil be like some benami trans/diversion of income to kiths & kins?

[Rama Krishana]

You need to check from the facts whether it is in the nature of borrowing or trading. Once you are receiving something which you claim as currency of any country, how can u melt it is sell in the market. This very fact requires to be understood first. Second if it is purchase of currency in lieu of consideration than the nature of transaction as a whole needs through study.

 I appreciate that you have well quoted the extracts from the ITAT decision but your own facts are not clear.

AI Summary

Loan restriction under Section 269SS targets cash loans; in-kind transfers of precious metals may fall outside its scope. Section 269SS is confined to loans or deposits of money in the ordinary sense; in-kind advances such as precious metals are ordinarily outside its prohibition, but where an in-kind receipt is converted into cash or is effectively a purchase of currency the transaction must be analysed on facts to determine whether it falls within the section or constitutes a disguised monetary loan.