Deputy commissioner of Income Tax vs. Dhanalakshmi Bank Ltd.

ITA NOS.883 TO 885/1990;7&8(COCH.) OF 1991 & 271 (COCH.) OF 1991

Section 24 Banking Regulation Act,1949- Maintenance of a percentage of assets. —

[(2A) A scheduled bank, in addition to the average daily balance which it is, or may be, required to
maintain under section 42 of the Reserve Bank of India Act, 1934 (2 of 1934) and every other banking
company, in addition to the cash reserve which it is required to maintain under section 18, shall
maintain in India, assets, the value of which shall not be less than such percentage not exceeding forty
per cent. of the total of its demand and time liabilities in India as on the last Friday of the second
preceding fortnight as the Reserve Bank may, by notification in the Official Gazette, specify from
time to time and such assets shall be maintained, in such form and manner, as may be specified in
such notification.]

[(3) For the purpose of ensuring compliance with the provisions of this section, every banking
company shall, not later than twenty days after the end of the month to which it relates, furnish to the
Reserve Bank in the prescribed form and manner a monthly return showing particulars of its assets
maintained in accordance with this section, and its demand and time liabilities in India at the close of
business on each alternate Friday during the month, or if any such Friday close of business on each
alternate Friday during the month, or if any such Friday is a public holiday, at the close of business on
the preceding working day: Provided that every Regional Rural Bank shall also furnish a copy of the
said return to the National Bank.

(4) (a) If on any alternate Friday or, if such Friday is a public holiday, on the preceding working day,
the amount maintained by a banking company at the close of business on that day falls below the
minimum prescribed by or under clause (a) of sub-section (2A) such banking company shall be liable
to pay to the Reserve Bank in respect of that day's default, penal interest for that day at the rate of
three per cent. per annum above the bank rate on the amount by which the amount actually maintained
falls short of the prescribed minimum on that day; and

(b) If the default occurs again on the next succeeding alternate Friday, or, if such Friday is a public
holiday, on the preceding working day, and continues on succeeding alternate Fridays or preceding
working days, as the case may be, the rate of penal interest shall be increased to a rate of five per cent.
per annum above the bank rate on each such shortfall in respect of that alternate Friday and each
succeeding alternate Friday or preceding working day, if such Friday is a public holiday, in which the
default continues.

(5) (a) Without prejudice to the provisions of sub-section (3), the Reserve Bank may require a banking
company to furnish to it a return in the form and manner specified by it showing particulars of its
assets maintained in accordance with this section and its demand and time liabilities in India, as at the
close of business on each day of a month; and

(b) Without prejudice to the provisions of sub-section (4), on the failure of a banking company to
maintain as on any day, the amount so required to be maintained by or under clause (a) of sub-section
(2A) the Reserve Bank may, in respect of such default, require the banking company to pay penal
interest for that day as provided in clause (a) of sub-section (4) and if the default continues on the next
succeeding working day, the penal interest may be increased as provided in clause (b) of sub-section
(4) for the concerned days.

(6) (a) The penalty payable under sub-section (4) and sub-section (5) shall be paid within a period of
fourteen days from the date on which a notice issued by the Reserve Bank demanding payment of the
same is served on the banking company and in the event of failure of the banking company to pay the
same within such period, the penalty may be levied by a direction of the principal civil court having
jurisdiction in the area where an office of the defaulting banking company is situated, such direction
to be made only upon an application made by the Reserve Bank in this behalf to the court; and

(b) When the court makes a direction under clause (a), it shall issue a certificate specifying the sum
payable by the banking company and every such certificate shall be enforceable in the same manner
as if it were a decree made by the court in a suit.

(7) When under the provisions of clause (b) of sub-section (4), penal interest at the increased rate of
five per cent., above the bank rate has become payable by a banking company, if thereafter the
amount required to be maintained on the next succeeding alternate Friday, or if such Friday is a public
holiday, the next preceding working day, is still below the prescribed minimum, every director,
manager or secretary of the banking company, who is knowingly and wilfully a party to the default,
shall be punishable with fine which may extend to five hundred rupees and with a further fine which
may extend to five hundred rupees for each subsequent alternate Friday or the preceding working day,
as the case may be, on which the default continues.

(8) Notwithstanding anything contained in this section, if the Reserve Bank is satisfied, on an
application in writing by the defaulting banking company, that the banking company had sufficient
cause for its failure to comply with the provisions of clause (a) of sub-section (2A), the Reserve Bank
may not demand the payment of the penal interest. Explanation .—In this section, the expression
“public holiday” means a day which is a public holiday under the Negotiable Instruments Act, 1881
(26 of 1881).]

Section 131 Income Tax Act- Section 131 of the Income Tax Act, 1961 gives power to Tax
Authorities to issue summons or to force attendance of any person for being examined on oath or to
compel production of books of account and other documents if any proceeding is pending. However,
notice u/s 131 (1A) can be issued even if no proceeding is pending.

Facts: The AO made an addition of Rs. 90,000 as the branch manager could not identify the persons
who deposited the amounts, and also for the reason that the persons who are said to have introduced
the depositors have denied the fact of introduction of the depositors. One of the persons introduced
was Sri. C.P. Simon. Summons issued under Section 131 of the IT Act, 1961, were returned with the
endorsement "not known" and the other introducer Sri A.A. Jose appeared and stated that he has not
introduced anybody to the assessee-bank for the purpose of depositing money. The AO also found
that the signatures varied with regard to the same deposit viz., the signature of the person at the time
of depositing the money is entirely different from the signature of the person at the time of receipt of
the money after an interval of few days. For all these reasons, the AO came to the conclusion that the
assessee has failed to identify the depositors to prove the genuineness of the deposits. He accordingly
made the impugned addition.

Procedural history: These appeals are by the Revenue and pertain to the asst. yrs. 1984-85 to 1989-
90. The first ground urged in the appeal by the Revenue for the asst. yrs. 1984-85 is common to the
remaining assessment years and for those years this is the only ground. The ground is directed against
the order of the first appellate authority deleting the disallowance made by the IAC (Asst.) in respect
of the interest paid to the Reserve Bank of India (RBI) on the ground that the expenditure cannot be
considered as having been incurred for any infraction of law and it is not in the nature of penalty
relying on the decisions in the cases of Corporation Bank, Bangalore and Syndicate Bank, Manipal.
The case of the Revenue is that the above decisions have not been accepted by the Department and
references have been filed before the High Court. It was contended before the first appellate authority
that the payment was not for any infraction of law and hence it was contended that it was an allowable
expenditure. For the above proposition, the assessee also placed reliance on the decision of the
Bangalore Bench of the Tribunal in the case of Syndicate Bank, Manipal v. ITO in ITA No.
750/Bang/1985 dt. 15th March, 1989, relating to the asst. yr. 1985-86. The first appellate authority
allowed the claim. While doing so, the first appellate authority placed reliance on the decision of the
Hon'ble Supreme Court in the case of Mahalakshmi Sugar Mills Co. v. CIT (1980) 123 ITR 429 (SC)
and also the decision of the Bangalore Bench of the Tribunal cited (supra). Aggrieved by the orders of
the first appellate authority, the Revenue is in appeal before the Tribunal.

Issue: Whether the word “penalty” used in Sub section (6)(a) of Section 24 of the Banking Regulation
Act,1949 is penalty interest or not?

Holding: After hearing the rival submissions and going through the orders of the Revenue authorities
and the decisions reilied on by the contending parties it was held that mens rea is not relevant as far
as penalty for infraction of law is concerned, still if the assessee has, without any action from its side,
crossed the border of permissible limit, such action cannot be treated as a criminal action liable
to penalty, or for that matter infraction of law. In banking parlance, it is an additional interest, termed
as "Penal interest." In the instant case of the assessee, the assessee failed to maintain the ratio of cash
reserve and statutory liquidity prescribed by the Banking Regulation Act, 1949. For such default
assesse is liable to pay penal interest. It is true that there is no creditor-lender relationship between
the RBI and the assesse. Still the RBI is the controlling body. It has to keep a check on the assessee
and to guard the interests of the depositors. It is for this purpose that the RBI prescribed certain limit
with regard to cash reserve and security reserve ratio. Penal interest is automatic in nature and
without any further action on the part of the assesse the consequence follows. We are unable to agree
with the learned Departmental Representative that the word "penalty" used in Sub-section (6)(a)
of Section 24 of the Banking Regulation Act, 1949, would not lead to the conclusion
that interest paid by the assessee is not interest, but penalty for infraction of law. For imposing
any penalty, the assessee by action or inaction has to contribute something. Falling short of the
percentage of assets by cash or reserve may be unintentional. By levy of the penalty interest the
assessee is checked from falling into the trap. Section 24(4)(a) and (b) of the Banking Regulation Act,
1949, use the words "rate of penal interest". It is interest only. The appeal by the Revenue for the
asst. yr. 1984-85 on both grounds fails and the appeals for the asst. yrs. 1985-86 to 1989-90 on the
common ground also fail. In the result, all the appeals by the Revenue fail and are dismissed.

Analysis: The ground is directed against the order of the first appellate authority deleting the
disallowance made by the IAC in respect of the interest paid to the Reserve Bank of India on the
ground that the expenditure cannot be considered as having been incurred for any infraction of law
and it is not in the nature of penalty relying on the decisions in the cases of Corporation Bank,
Bangalore and Syndicate Bank, Manipal. The assessee contended before the first appellate authority
that the said amount was paid to the Reserve Bank of India for non-maintenance of CRR and SLR as
required by the Banking Regulations Act of the Reserve Bank of India. The learned Departmental
Representative submitted that if a banking company fails to maintain cash reserve or security reserve
at the prescribed percentage, then as per s. 24(4)(a) of the Banking Regulation Act, 1949, such
banking company will be liable to pay to the RBI in respect of that day s default, penal interest for
that day at 3 per cent per annum above the bank rate on the amount by which the amount actually
maintained falls short of the prescribed minimum. The learned Departmental Representative, for this
purpose, laid emphasis on sub-s.(a) of s. 24, which reads as under: The penalty payable under sub-s.
and sub-s. shall be paid within a period of fourteen days from the date on which a notice issued by the
Reserve Bank demanding payment of the same is served on the banking company and in the event of
failure of the banking company to pay the same within such period, the penalty may be levied by a
direction of the principal civil Court having jurisdiction in the area where an office of the defaulting
banking company is situated, such direction to be made only upon an application made by the Reserve
Bank in this behalf to the Court. This Banking Regulation Act, 1949 was promulgated by the RBI as
empowered by s. 42 is as follows: Cash reserves of scheduled banks to be kept with the Bank Every
bank included in the Second Schedule shall maintain within the Bank an average daily balance the
amount of which shall not be less than three per cent of the total of the demand and time liabilities in
India of such bank as shown in the return referred to in sub-s.: Provided that the bank may, by
notification in the Gazette of India increase the said rate to such higher rate as may be specified in the
notification so however that the rate shall not be more than twenty per cent of the total of demand and
time liabilities. According to the learned Departmental Representative the provisions of the Banking
Regulation Act, 1949, and RBI Act, 1934, make abundantly clear that what the defaulting banking
company pays for the failure to maintain the cash reserve or security reserve at the minimum
prescribed percentage, is penal in nature. In the case of savings bank and current account, the bank
insist on proper introduction because the transactions are continuous and frequent.