IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 WP(C).No. 34006 of 2005(W) -------------------------- PETITIONER(S): --------------- SURYA VINAYAK INDUSTRIES LTD., REPRESENTED BY ITS DIRECTOR, SANJIV AGARWAL, PLOT NO.55, SUVITHA KUNJ, PITHAMPURA, DELHI- 110 034. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENT(S): --------------- 1. FOREST RANGE OFFICER, MARAYOOR. 2. CONSERVATOR OF FORESTS, HIGH RANGE CIRCLE, KOTTAYAM. ADDL. RESPONDENTS IMPLEADED: 3. UNION OF INDIA REPRESENTED BY SECRETARY, DEPARTMENT OF FINANCE, NEW DELHI. 4. BRANCH MANAGER, STATE BANK OF TRAVANCORE, MUNNAR BRANCH IMPLEADED VIDE ORDER DATED 14.12.2005 IN I.A.18415/2005 ADV. SRI.T.P.SAJID, ACGSC FOR R3 SRI.SATHISH NINAN FOR R4 SRI.SANTHOSH MATHEW FOR R4 G.P.SMT. SUDHA DEVI N. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 34006 of 2005(W) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE AUCTION CONDITIONS. EXT.P2 COPY OF THE COMMUNICATION ISSUED BY R1 TO THE PETITIONER. EXT.P3 COPY OF THE TELEGRAM SENT BY THE PETITIONER TO R1. EXT.P4 COPY OF THE LETTER SENT BY THE PETITIONER TO R1. /TRUE COPY/ P.S. TO JUDGE cl P.R.RAMACHANDRA MENON, J. .............................................. W.P(C).NO.34006 OF 2005 ............................................. Dated this the 26th day of September, 2011. JUDGMENT The petitioner has approached this Court seeking to issue a writ of mandamus directing the respondents to reverse the debit of Rs.67,000/= made to the account of the first respondent towards the transaction charges in respect of withdrawal of the sale value deposited by the petitioner and to have the same credited in the account of the petitioner. 2. The petitioner is stated as a manufacturer of Sandalwood oil and allied products, having the factory situated outside the State. The petitioner sought to participate in the sale of Sandalwood pursuant to Ext.P1 tender and he turned to be the successful bidder in respect of 37 lots in the sale effected on 8.6.2005. The sale was confirmed on 30.7.2005. In compliance with the tender conditions, the petitioner satisfied the balance amount of Rs.6,70,00,000/= by placing necessary DD including all the charges concerned. While so, on 9.11.2005 the first respondent issued Ext.P2 communication to the petitioner W.P(C).NO.34006 OF 2005 : 2 : stating that they had debited a sum of Rs.67,000/- from the account of the petitioner towards 'transaction charges' for withdrawal of the amount remitted by the petitioner in the bank towards balance sale consideration. The case of the petitioner is that, there is no rhyme or reason for appropriating the same from the account of the petitioner, as no such power or authority is vested with the respondents, either under Ext.P1 tender conditions or under any of the provisions of law, as the beneficiary of the transaction is none other than the respondents who have withdrawn the amount from the bank concerned. 3. Heard the learned Government Pleader and also the learned counsel appearing for additional 4th respondent bank. Obviously, an amount of Rs.67,000/= was deducted from the account of the petitioner, as given in Ext.P2, towards the 'transaction charges'. The learned counsel for the petitioner with reference to the relevant provisions including the Finance Act, 2005 submits that the term 'Banking Cash Transaction Tax' has been defined under Section 94(3) which means tax leviable on the taxable banking transactions under the provisions of Chapter VII, W.P(C).NO.34006 OF 2005 : 3 : while Taxable Banking Transaction stands defined under sub section (8) which reads as follows: “(a) a transaction, being withdrawal of cash (by whatever mode) exceeding ten thousand rupees on any single day by a person from any scheduled bank; or (b) a transaction, being purchase of a ban k draft or banker's cheque or any other financial instrument on payment of cash exceeding ten thousand rupees on any single d ay by a person from any scheduled bank; or ( c ) a transaction, being receipt of cash from any scheduled bank exceeding ten thousand rupees on any single day by a person on encashment of term deposit, whether on maturity or otherwise, from that bank.” 4. With regard to the liability cast upon the person concerned to satisfy the said amount, the learned counsel submits that, by virtue of the mandate under Section 95(2) (i), it is open to the person who withdraws the cash from any scheduled bank. The said provision reads as follows: “95(2) The banking cash transaction tax referred to in sub-section (1) shall be payable - (i) in respect of taxable banking transaction referred to in sub-clause (a) of clause (8) of W.P(C).NO.34006 OF 2005 : 4 : section 94, by the person who withdraws the cash from any scheduled bank”. 5. The learned counsel submits that the petitioner has not withdrawn any amount from the bank, but on the other hand has remitted necessary charges for purchasing the bank draft as contemplated under Section 95(2)(ii)(b) of the Finance Act, 2005. It is also brought to the notice of this Court that, Clause 9(3) of Ext.P1 tender conditions stipulates that the aforesaid liability is the look out of the respondents. The said provision reads as follows: “(3) The full sales tax, Forest Development Tax and other dues as per rules in force at the time of confirmation of the sale should be remitted along with 1st remittance of balance value”. 6. The learned Government Pleader appearing for the respondents submits that the petitioner is liable to satisfy the entire dues in view of the liability cast under para-9(3) of Ext.P1 tender conditions itself. However, on going through the contents of Ext.P1 and so also the relevant provisions of the Finance Act, 2005, this Court is unable to support W.P(C).NO.34006 OF 2005 : 5 : the stand of the respondents to have appropriated the amount of Rs.67,000/= towards the taxable banking transaction charges, which in fact was to be effected by the person who has withdrawn the amount from the account as provided under Section 95(2)(i). So also, Ext.P1 tender condition clearly provides and permits the petitioner to effect the balance deposit by way of demand draft in favour of the Forest Range Officer, Marayoor, payable at the State Bank of Travancore, Munnar; while no further amount is stated as payable by the successful bidder under any other head. Undisputedly, the petitioner has satisfied the entire amount towards the balance consideration, by effecting the deposit through the SBT. No where in Ext.P1 has been prescribed that, if the petitioner was resorting to avail, the service rendered by the SBT (instead of effecting the deposit in the Government Treasury), he will have to satisfy any other amount, over and above the balance bid amount (ie banking transaction charges - to an extent of 0.1% as stipulated under the Finance Act, 2005). Above all, no counter affidavit has been filed on the part of respondents disputing the specific averments raised in the W.P(C).NO.34006 OF 2005 : 6 : writ petition, with reference to the specific terms of Ext.P1 tender and the relevant provisions applicable to the case in hand. 7. In the above circumstances, this Court finds that the petitioner is entitled to succeed. Respondents 1 and 2 are directed to reverse the debit of Rs.67,000/= made to the account of the first respondent towards the 'part transaction charges' for withdrawal of the sale value deposited by the petitioner and shall give credit to the same in the account of the petitioner. It is also open to the said respondents to effect the refund by other appropriate methods passing necessary orders. In any view of the matter, the refund shall be effected to the petitioner, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The writ petition is allowed. No costs. P.R.RAMACHANDRA MENON, JUDGE. cl