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TMI Blog1984 (12) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... wing the order of the Tribunal in IT Appeal No. 377 (Mad.) of 1981 cited supra. We have heard the departmental representative and perused the material on record. The facts and arguments before us are similar to those considered by the Tribunal in the above order. The department wants to keep the matter alive, since the Tribunal's decision was not acceptable to it. Following the above Tribunal's order, we would uphold the Commissioner (Appeals)'s order and dismiss the revenue's appeal. Per Shri P. S. Dhillon, Judicial Member --- I have gone through the order of my learned brother, Shri C.R. Nair, Accountant Member, who dismissed the appeal of the revenue. But I am not in a position to agree with him because I am holding that the revenue's appeal is to be allowed. Therefore, I state my reasons as under. 2. The assessee is a registered firm. The previous year, relevant for the assessment year 1979-80, ended on 31-10-1978. During the year of account, the assessee borrowed or repaid loans on hundis from the parties mentioned in the assessment order and thereby claimed that the amounts borrowed by it amounting to Rs. 57,375 are not the subject-matter of section 69D, in view of the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mother tongue of minority community, the Anglo-Indians, who are the citizens of India and, therefore, there is no basis for taking it as foreign language. Apart from this, the Bombay Bench of the Tribunal, where the Judicial Member was a party and spoke for the Bench, had taken a view that the borrowals from the creditors by the assessees on the Government stamp paper written in English is hundi for the purpose of section 69D. Reliance can be placed on the decision in the case of Samir Glass Traders v. ITO [IT Appeal No. 26 (Dom.) of 1981], decided by Bench 'A' in the assessment year 1978-79 on 28-12-1981. 6. As I have stated above, English is not a foreign language in view of the provisions of the Constitution and, therefore, the decision of the Madras Bench supra cannot be followed, as the Tribunal considered that English is a foreign language, in holding that such borrowals on the hundi stamp papers in English are not the subject-matter of section 69D. Therefore, I further hold that the decision of the Bombay Bench is in accordance with the provisions of the Constitution and as such it is this decision which is to be followed. In this view of the matter, I am of the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anguages of India recognised in the Schedule to the Constitution as well as official language of Central Government and that of mother tongue of the minority community, Anglo-Indian, recognised as such by the Constitution of India, hence, hundi for the purpose of section 69D of the Act ?" THIRD MEMBER ORDER Per Shri Ch. G. Krishnamurthy, Senior Vice President --- This is a matter that has come before me as the Third Member on a point of difference of opinion between my learned brothers, who first heard the matter. Interestingly, there has been a difference of opinion as to the point of difference of opinion. The learned Judicial Member put the difference of opinion thus: " Whether an instrument written in English on the Government paper is vernacular, English being one of the languages of India recognised in the Schedule to the Constitution as well as official language of Central Government and that of mother tongue of the minority community, Anglo-Indian, recognised as such by the Constitution of India, hence, hundi for the purpose of section 69D of the Act ?" while the learned Accountant Member put the difference of opinion thus : " Whether, on the facts and in the circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee's own case for the earlier year. 4. But, the learned Judicial Member was of a different opinion. He referred to an argument said to have been addressed by the learned departmental representative before the Bench that the Bombay Benches of the Tribunal have taken a different view and that decision was more rational and reasonable and that decision should have been followed in preference to the view expressed by the Madras Bench in the assessee's own case and there was also a reference to the constitutional validity of the order passed by the Bombay Bench of the Tribunal as against the order of the Madras Bench of the Tribunal going against the Constitution. Then, he referred to the various arguments said to have been discussed in the Bombay case, which, I feel, are not necessary to repeat here, and preferred to follow the view expressed by the Bombay Benches. The pertinent observations made by him in this regard are as follows : " As I have stated above, English is not a foreign language in view of the provisions of the Constitution and, therefore, the decision of the Madras Bench supra cannot be followed as the Tribunal considered that English is a foreign language, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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