Section 69D of the Income-tax Act, 1961--Clarification regarding - Income Tax - 221/1977

Section 69D of the Income-tax Act, 1961--Clarification regarding Circular No. 221 Dated 6/6/1977 From Secretary, Central Board of Direct Taxes. To All Commissioners of Income-tax. Subject: Section 69D of the Income-tax Act, 1961--Clarification regarding. Sir, Reference is invited to Board's Circular No.208 (F.No.208/7/76-ITA.II)* dated 15th November, 1976, in which the provisions of section 69D of the Income-tax Act, 1961, were explained. 2. A "hundi" in common commercial parlance, denotes an indigenous form of bill of exchange, by and large in vernacular language, which is being used by the mercantile community in India. The hundis can be broadly classified as, (i) Darshani hundis (sight or demand hundis), and (ii) Muddati hundis (Usance hundis payable after a stipulated period of time mentioned therein). Darshani hundis are of different varieties, viz., (i) Shahjog hundis, (ii) Dhanijog hundis, (iii) Namjog hundis, (iv) Dekharanarjog hundis, (v) Farmanijog hundis, and (vi) Jokhmi hundis. 3. It has been represented to the Board that a Darshani hundi created solely for the purpose of remittances of funds or financing inland trade or for operating accounts through indigenous banking channels, does not involve borrowal of amounts and as such does not fall within the scope of section 69D. There are more than two parties in a Darshani hundi. Normally four parties are involved in the case of a Darshani hundi, viz., (i) the rakhya (the holder or purchaser), (ii) the drawer (an indigenous banker or a vyapari), (iii) the drawee (normally an indigenous banker but can also be a vyapari), and (iv) the payee. If the payee is also the rakhya the parties will be three. Darshani hundi is payable at sight, i.e., immediately on presentation. A Muddati (Usance) hundi, generally involving two parties, is payable after a stipulated period of time mentioned in the hundi. 4. The matter has been considered by the Board. We have been advised that the provisions of section 69D are not applicable to Darshani hundi transactions mentioned hereinafter: (i) (a) 'A', who is the rakhya, obtains on payment from 'B', the drawer, a hundi drawn on 'C', the drawee, in favour of 'D', the payee. (b) 'A', the rakhya having a running account or an overdraft account with 'B', obtains from him a hundi drawn on 'C', the drawee, in favour of 'D', the payee. (ii) (a) 'A', a purchaser of goods from 'B', draws a hundi on 'C', the drawee in favour of 'B' or a third party 'D' for the purpose of payment of the price of goods purchased or for settling the account. (b) For such purposes 'B' can also draw a hundi on 'A' either in his own favour or in favour of a third party 'D'. (iii) 'A' has an account with an indigenous banker 'C' who has granted a credit facility to 'A' and handed over a hundi book to him. 'A' draws amounts through such hundis payable either to self, or bearer or third party. Such an arrangement arises out of the credit facility already granted and, therefore, no debtor-creditor relationship has arisen between the parties because of the drawal of a hundi. 5. Normally borrowal on hundi arises when a person gets money by execution of a hundi but in the instances cited above the hundi is given in the nature of a security and there is no borrowal on such hundis. Thus in cases of transactions referred to at (i), (ii) and (iii) of para. 4, section 69D is not applicable. The settlement of account between any of the parties to such a Darshani hundi can thus be otherwise than through an account payee cheque within the meaning of section 69D. 6. This circular covers Darshani hundi transactions of the types referred to at (i), (ii) and (iii) of para. 4 above. However, it could not be said that there could be no borrowal on Darshani hundi. The transactions not of the type referred to above on Darshani hundis have to be examined with reference to the facts and circumstances of such cases so as to determine whether or not there is a borrowal on such hundis. 7. The contents of this circular may please be brought to the notice of all the officers working in your charge for their information and necessary action. Yours faithfully, Sd. J.P. Sharma, SECRETARY, CENTRAL BOARD OF DIRECT TAXES. * See [1977] 107 ITR (St.) 195.