IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 WP(C).No. 23659 of 2008(N) ---------------------------------- PETITIONER(S): ------------------- TECHNO ENGINEERING CORPORATION C-3102, JAWAHARLAL NEHRU STADIUM, KALOOR KOCHI-682017, REP. BY ITS MANAGING PARTNER SRI.V.R.NAIR, BY ADV. SRI.E.P.GOVINDAN RESPONDENT(S): -------------------- 1. THE COMMERCIAL TAX OFFICER, (WC&LT) COMMERCIAL TAXES, ERNAKULAM. 2. BHARAT SANCHAR NIGAM LTD., A GOVT.OF INDIA UNDER TAKING REP. BY THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION ERNAKULAM. 3. EXECUTIVE ENGINEER, ELECTRICAL DIVISION BSNL LTD., TRIVANDRUM, 4. EXECUTIVE ENGINEER, CENTRAL PUBLIC WORKS DEPARTMENT, TRIVANDRUM. 5. EXECUTIVE ENGINEER, CPWD, ERNAKULAM 6. DEPUTY GENERAL MANAGER HINDUSTHAN INSECTICIDES, UDYOGAMANDAL ERNAKULAM. 7. STATE OF KERALA, REP. BY SECRETARY TAXES DEPARTMENT, GOGVERNMENT SECRETARIAT TRIVANDRUM. R1, R7 BY GOVT.PLEADER SRI.V.K.SHAMSUDEEN R2-3 BY ADV. SRI.MATHEWS K.PHILIP,SC, BSNL R4,5 BY ADV.SRI.PHILIP MATHEW, CGC R6 BY ADVS. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.ANIL D. NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs WP(C).No. 23659/2008(N) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE REVISED ASSESSMENT ORDER DATED 23/03/2004 FOR THE YEARS 1994-95 PASSED BY THE FIRST RESPONDENT. P1(a):COPY OF THE ASSESSMENT ORDER DATED 23/03/2004 FOR THE YEARS 1995-96 PASSED BY THE 1ST RESPONDENT. P2: COPY OF THE ASSESSMENT ORDER DATED 19/02/2001 FOR THE YEARS 1996-97. P2(a):COPY OF THE ASSESSMENT ORDER DATED 06/12/2001 FOR THE YEARS 1997-98. P3: COPY OF THE APPELLATE ORDER DATED 30/12/2000 IN STA.758/2001 FOR THE YEARS 1994-95 & 1995-96. P3(a):COPY OF THE APPELLATE ORDER DATED 29/10/2002 IN STA.758/2001 FOR THE YEARS 1996-97. P4: COPY OF THE DECLARATIONS IN FORM 21 C. P5: COPY OF THE LETTER DATED 11/03/2005 ISSUED BY THE PETITIONERS. P5(a):COPY OF THE ACKNOWLEDGE RECEIPT FOR PROVING THE DELIVERY OF EXT.P5. P6: COPY OF THE REMINDER LETTER DATED 06/05/2005 ISSUED BY THE PETITIONER. P6(a):COPY OF THE ACKNOWLEDGE CARD. P7: COPY OF THE REMINDER LETTER DATED 02/12/2005 ISSUED BY THE PETITIONER TO THE THIRD RESPONDENT. P7(a):COPY OF THE REMINDER LETTER DATED 12/04/2007 BY THE PETITIONER. P7(b):COPY OF THE REMINDER LETTER DATED 14/01/2008 BY THE PETITIONER. P7(c):COPY OF THE REMINDER LETTER DATED 05/04/2008 BY THE PETITIONER. P8: COPY OF THE LETTER DATED 03/12/2005 ISSUED BY THE PETITIONER TO THE FORTH RESPONDENT. P8(a):COPY OF THE LETTER DATED 12/04/2007 ISSUED BY THE PETITIONER. svs ..............2/-... ...2... P8(b):COPY OF THE LETTER DATED 14/01/2008 ISSUED BY THE PETITIONER. P8(c):COPY OF THE LETTER DATED 05/04/2008 ISSUED BY THE PETITIONER TO THE FORTH RESPONDENT. P9: COPY OF THE LETTER DATED 03/12/2005 ISSUED BY THE PETITIONER TO THE FIFTH RESPONDENT. P9(a):COPY OF THE LETTER DATED 12/04/2007 ISSUED BY THE PETITIONER. P9(b):COPY OF THE LETTER DATED 12/12/2007 ISSUED BY THE PETITIONER TO THE FIFTH RESPONDENT. P9(c):COPY OF THE LETTER DATED 05/04/2008 ISSUED BY THE PETITIONER TO THE FIFTH RESPONDENT. P10: COPY OF THE LETTER DATED 23/06/2008 ISSUED BY THE PETITIONER TO THE FIRST RESPONDENT. RESPONDENT'S EXHIBITS: R1(a):COPY OF THE MODIFIED ASSESSMENT ORDER FOR THE YEAR 1996-97 PASSED ON 12/01/2010. R2(a):COPY OF THE RESPECT OF THE PERIOD OF 94-95, 96-97 AND 97-98. R2(b):COPY OF THE IN RESPECT OF THE PERIOD OF 94-95, 96-97 & 97-98. R2(c):COPY OF THE DEDUCTION CERTIFICATE. R5(1):COPY OF THE LETTER DATED 05/03/1998 SENT TO THE SALES TAX OFFICER, 1ST CIRCLE, ERNAKULAM BY THE 5TH RESPONDENT. R5(2):COPY OF THE LETTER NO.51(4)/KCED/99/1272 DATED 06/05/1999 SENT TO THE SALES TAX OFFICER (WCT & LT), OFFICE OF DEPUTY COMMISSIONER, SALES TAX COMPLEX, ERNAKULAM. R5(3):COPY OF THE STATEMENT SENT TO THE SALES TAX OFFICER (REVENUE) TRIVANDRUM BY THE 4TH RESPONDENT. /TRUE COPY/ P.A. TO JUDGE svs P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P (C) No. 23659 OF 2008 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 10th day of December, 2010 JUDGMENT The issue involved in this Writ Petition is, whether the action on the part of the concerned respondents, in not giving credit to the various amounts deducted from the amounts payable to the petitioner in connection with the works contract towards the tax liability is liable to be justified and whether the petitioner is not entitled to have refund of the amount allegedly stated as made in excess of the actual due. 2. The prayers raised in the Writ Petition are as follows : (i) To issue a writ of mandamus or any other appropriate writ order or direction directing the first respondent to refund the excess amount of Rs. 2,75,234/- collected and remitted by the awarders in accordance with Ext.P4 declarations. (ii) To issue a writ of mandamus or any other appropriate writ order or direction directing the respondents 2 to 6 to refund the amount of Rs.5,93,873/- collected from the petitioners if not remitted in the Government treasury. (iii) To issue a writ of mandamus or any other appropriate writ order or direction directing the respondents 3, 4 & 5 to issue Form 21 C certificate in accordance with rule 22 A (2) of the KGST Rules for the amount of tax deducted by them from the petitioners bills. W.P. (C) No. 23659 of 2008 2 (iv) To issue a writ of mandamus or any other appropriate writ order or direction directing the first respondent to implement Ext P3 appellate order expeditiously (v) To issue appropriate writ order or direction directing the respondent to pay 10 % interest to the petitioners in accordance with Section 44 (4) of the KGST Act read with rule 45 of the KGST Rules. (vi) To issue such other writ order or direction as this Honourable Court may deem fit in the facts and circumstances of the case. 3. The issue pertains to the assessment years 1994 - '95 to 1996 - '97. The assessments were originally finalized by the concerned assessing authority; aggrieved of which, the petitioner preferred appeals before the concerned appellate authority. In respect of the assessment years 1994 -'95 and 1995 - '96, Ext. P3 appellate order was passed; while in respect of the remaining assessment year i.e 1996 - '97, Ext. P3 (a) order was passed directing the concerned authority to issue revised assessment orders. Pursuant to the appellate orders as above, Exts. P1 and P1 (a) modified assessment orders were passed by the first respondent in respect of the assessment years 1994 - '95 and 1995 – '96, while Ext. R1 (a) order was issued in respect of the assessment year 1996 - '97. 4. The learned counsel for the petitioner submits that, the petitioner, who is a works contractor, had undertaken various works with the BSNL, CPWD Ernakulam and Thiruvananthapuram and also with the Hindusthan W.P. (C) No. 23659 of 2008 3 Insecticides Limited and by virtue of the relevant provisions of law, the said awarders/respondents were liable to effect the deduction of tax at source and to have it remitted to the concerned account of the departmental authorities. It is further stated that, in respect of some of the transactions though certificates/declarations in from No 21 (C) have been issued, they were defective and hence were not accepted by the department and returned to the petitioner, mainly for lack of clarity or want of details in the 'last column', as to the manner of payment stated as effected. In respect of the remaining work, no such declarations were even given, despite many a request in this regard. The learned counsel submits that, it was in the said circumstance that the petitioner was constrained to approach this Court, mainly seeking for a direction to be given to the respondent Nos. 2 to 6 to issue the relevant certificates in respect of the deductions made and to direct the first respondent to reckon the said deduction and to refund the excess amount collected from the petitioner. 5. The concerned respondents have filed separate counter affidavits, rebutting the allegations and averments raised in the Writ Petition. 6. The learned Government Pleader submits that, the assessment finalized by the first respondent is perfectly in conformity with the actual facts and figures. Taking note of the directions given by the appellate authority, the matter was reconsidered and it was found that no statutory W.P. (C) No. 23659 of 2008 4 declaration in Form 21 (C) was submitted by the petitioner and since no such proceeding formed part of the record, no amount, allegedly debited from the amounts paid to the petitioner by the Awarder of the contract, could be given effect to and that absolutely no blame can be put on the shoulders of the first respondent in this regard. With regard to the prayers 2 and 3, the learned Government Pleader submits that, the same is not connected with the first respondent. With regard to the 4th prayer, the learned Government Pleader submits that, the first respondent has already implemented Ext P3, passing the modified assessment order produced and marked as Ext. P1/P1(a) and as such, nothing further remains with regard to the said prayer. 7. The learned standing counsel appearing for the second respondent submits, with reference to the counter affidavit filed and also with reference to the documents produced and marked Exts. R2(a) (b) and (c), that, the said respondent deducted various amounts from the bills payable to the petitioner and the said amounts have been duly credited to the relevant account of the departmental authorities, in respect of the tax advance. The allegation made by the petitioner that no certificate/declaration was given is vehementally denied, stating that, such certificates have already been issued. The learned counsel also submits that, notwithstanding the issuance of the said certificates, if the petitioner W.P. (C) No. 23659 of 2008 5 approaches the said respondent (pointing out the specific instances), the matter can be considered and fresh certificate/duplicate can be issued with regard to the amounts already deducted. Similar stand is taken by the other concerned respondents as well, asserting that, they have also issued the relevant certificates with respect to the deductions made from the amounts payable to the petitioner. 8. The only question that remains to be considered is whether there is any fault on the part of the concerned respondents in issuing the relevant certificates or in having caused the deducted amounts to be credited to the accounts of the department, enabling the petitioner to avail the benefit of the deduction. 9. The learned counsel for the petitioner submits that, despite the lapses, if any, on the part of the petitioner, since the concerned respondents admit that various amounts have already been deducted from the amounts payable to the petitioner and that they have effected necessary deposits, the correctness of which is disputed from the part of the first respondent/department, it is a matter to be considered whether there is any double payment, causing the petitioner to enshoulder any such undue liability in respect of the very same cause of action. If the petitioner has already suffered the tax liability by virtue of the deductions made by the concerned respondent, he is entitled to have the relevant certificate to be W.P. (C) No. 23659 of 2008 6 issued and produced before the concerned authorities. This Court also takes note of the averments made by the petitioner in paragraph 6 of the Writ Petition, as pointed out by the learned Government Pleader, that the case of the petitioner was that no such certificate was ever issued by the concerned respondent to be produced before the first respondent, which supports the stand taken by the first respondent, that no such certificate was ever produced before passing the modified assessment orders. 10. Considering the particular facts and circumstances, this Court finds that, the matter could be disposed of by directing the petitioner to approach the respondents 2 to 6 by filing an application for issuance of 'duplicate copies' of the certificates in Form 21 (C) with regard to the deductions already made, as stated in the counter affidavit, so as to enable the petitioner to pursue the statutory remedy by filing proper appeals before the concerned authority against the modified assessment orders Ext. P1/P1(a) and Ext. R1 (a). Accordingly the petitioner is permitted to approach the concerned respondent by filing necessary representation within two weeks from the date of receipt of a copy of this judgment; on which event, the same shall be considered and the respondents 2 to 6 shall issue the necessary Form 21 (C) or duplicates, as the case may be, to the petitioner in respect of the deductions stated as made, as stated in the counter affidavit, within one month thereafter. It is open to the W.P. (C) No. 23659 of 2008 7 petitioner to challenge Ext. P1 /P1 (a) and R1 (a) assessment orders by filing necessary appeals before the concerned appellate authority, on the strength of such certificates within one month thereafter. This Court does not propose to express anything on the merits. The Writ Petition is disposed of accordingly. P. R. RAMACHANDRA MENON, JUDGE kmd