{"id":11991,"date":"2009-12-23T00:00:00","date_gmt":"2009-12-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ekm-co-op-house-construction-vs-kerala-co-op-tribunal-on-23-december-2009"},"modified":"2016-08-27T20:55:54","modified_gmt":"2016-08-27T15:25:54","slug":"ekm-co-op-house-construction-vs-kerala-co-op-tribunal-on-23-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ekm-co-op-house-construction-vs-kerala-co-op-tribunal-on-23-december-2009","title":{"rendered":"Ekm Co.Op.House Construction … vs Kerala Co.Op.Tribunal on 23 December, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Ekm Co.Op.House Construction … vs Kerala Co.Op.Tribunal on 23 December, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nOP.No. 31396 of 2000(K)\n\n\n\n1. EKM CO.OP.HOUSE CONSTRUCTION SO.LTD\n                      ...  Petitioner\n\n                        Vs\n\n1. KERALA CO.OP.TRIBUNAL\n                       ...       Respondent\n\n                For Petitioner  :DR.K.P.SATHEESAN\n\n                For Respondent  :SRI.K.JAGADEESCHANDRAN NAIR\n\nThe Hon'ble MR. Justice P.R.RAMACHANDRA MENON\n\n Dated :23\/12\/2009\n\n O R D E R\n              P.R. RAMACHANDRA MENON, J.\n                 -----------------------------------------------\n                         O.P. No. 31396 of 2000\n                         ---------------------------------\n            Dated, this the 23rd day of December, 2009\n\n\n                              J U D G M E N T\n<\/pre>\n
       Whether deduction of a sum of Rs.80,000\/- from the amount<\/p>\n
payable to the third respondent is in conformity with the stipulation<\/p>\n
under Section 194C of the IT Act, forms the basic issue involved in this<\/p>\n
Original Petition. There is also an incidental issue as to the denial of<\/p>\n
the claim for interest on the balance amount retained at the hands of the<\/p>\n
third respondent, as part of the ‘developmental charges’ for the period<\/p>\n
from 01.10.1987.\n<\/p>\n
       2. The petitioner is a Co-operative House Construction Society<\/p>\n
registered under the relevant provisions of the           Kerala Co-operative<\/p>\n
Societies Act, 1967.      In the course of business of the Society, as<\/p>\n
provided under the By-laws, the Society intended to purchase a total<\/p>\n
extent of nearly 40 acres of land belonging to the respondent Nos. 3 to<\/p>\n
6 and four others situated in Thrikkakkara Panchayath, to have it<\/p>\n
properly laid out and sold to the prospective buyers who intended to<\/p>\n
construct residential building therein. In fact, the third respondent, who<\/p>\n
is a co-owner of the property is the Power of Attorney holder of the other<\/p>\n
respondents. By virtue of the terms of Ext. P3 agreement executed<\/p>\n
OP No.31396 of 2000
\n                                    2<\/span><\/p>\n
between the petitioner and the third respondent, it was stipulated that the<\/p>\n
land which was essentially a paddy field would be developed by the third<\/p>\n
respondent and the same would be purchased by the petitioner on sale<\/p>\n
by the said respondents for a sale consideration at the rate of Rs. 500\/- per<\/p>\n
cent, besides the ‘development charges’ payable at the rate of Rs. 1430\/-<\/p>\n
per cent. As part of the advance development charges, a sum of Rs. 10<\/p>\n
lakhs was also paid by the petitioner to the third respondent, to be adjusted<\/p>\n
towards the development charges at the rate of Rs.250\/- per cent.<\/p>\n
       3.    Despite the specific understanding that the entire property<\/p>\n
would be developed and sold by the third respondent on or before<\/p>\n
31.10.1985, only an extent of about 14.23 acres was developed and sold,<\/p>\n
executing necessary sale deeds. Pursuant to the request made by the<\/p>\n
third respondent for extension of time till 30.04.1986, it was granted by the<\/p>\n
petitioner Society on the specific condition that, interest at the rate of 12%<\/p>\n
per annum shall be levied on the balance, out of the total Rs. 40 lakhs<\/p>\n
already paid as ‘advance development charges’ (i.e. Rs.644182\/- as on<\/p>\n
the relevant date) as borne by Ext. P4. Even after the extension of time till<\/p>\n
30.04.1986, development and execution of sale deeds could be completed<\/p>\n
only in respect of a total area of about 28.34 acres. The third respondent<\/p>\n
sought for further time till 31.12.1986, which was also considered and<\/p>\n
sanctioned by the Society, subject to levy of interest on the balance<\/p>\n
advance amount paid towards the development charges, at the rate of 12%<\/p>\n
OP No.31396 of 2000
\n                                     3<\/span><\/p>\n
per annum.\n<\/p>\n
       4.    On 31.12.1986, the third respondent executed a set of ‘five’<\/p>\n
sale deeds for a total extent of       about 5.41 acres, however, without<\/p>\n
developing the property as agreed and as such, the third respondent was<\/p>\n
eligible to get only a sum of Rs.2,70,490\/- towards sale consideration in<\/p>\n
respect of said extent of land at the rate of Rs.500\/- per cent. In fact, the<\/p>\n
total amount paid to the third respondent towards the development charges<\/p>\n
as per Ext. P3 agreement during the period from 31.01.1985 to 30.04.1986<\/p>\n
was Rs.40,00,300.59\/- . As per Section 194C(1) of the Income Tax Act,<\/p>\n
the petitioner being a Co-operative Society was stated as bound to deduct<\/p>\n
2% of the said amount (Rs.80,000\/-) towards Income Tax and remit the<\/p>\n
same to the Department, which was           deducted and remitted by the<\/p>\n
petitioner Society, as borne by Ext. P5 certificate issued under Section 203<\/p>\n
of the Income Tax Act.\n<\/p>\n
       5.    Besides the said amount of Rs,80,000\/- to be deducted from<\/p>\n
the amount of Rs.40 lakhs paid to the third respondent, a further sum of<\/p>\n
Rs. 24824.50\/- was payable by the third respondent towards interest at the<\/p>\n
rate of 12% per annum, on the outstanding balance of advance<\/p>\n
development charges       paid till 31.12.1986 in respect of the extended<\/p>\n
period of performance of the agreement. After giving credit to the said<\/p>\n
amount of Rs.80,000\/- and 24824.50\/-, only a sum of Rs.1,65,665.50\/- was<\/p>\n
liable to be paid to the third respondent to make the total as Rs. 2,70,490\/-<\/p>\n
OP No.31396 of 2000
\n                                    4<\/span><\/p>\n
so as to constitute the sale consideration of the extent of 5.41 acres of<\/p>\n
undeveloped land, at the rate of Rs.500\/- per cent, sold by the third<\/p>\n
respondent on 31.12.1986, which          accordingly was satisfied by the<\/p>\n
petitioner and it was in the said circumstances that the third respondent<\/p>\n
executed ‘five’ sale deeds in respect of the said extent. But, since the third<\/p>\n
respondent did not choose to fulfil the entire liability under Ext. P3<\/p>\n
agreement by executing necessary sale deeds in respect of the remaining<\/p>\n
extent of 4.72 acres of land, the petitioner was constrained to approach<\/p>\n
the second respondent by fling ARC 390 of 1987 for necessary reliefs,<\/p>\n
particularly to execute sale deeds in respect of the said extent and also to<\/p>\n
allow adjusting of the balance advance of Rs. 1,25,891\/- and interest<\/p>\n
thereon    at   the   rate  of   12%     from   01.01.1987    in   the   sale<\/p>\n
consideration\/development charges.\n<\/p>\n
       6.     The case was resisted by the third respondent mainly stating<\/p>\n
that the concerned respondents were not liable to suffer any income tax<\/p>\n
deduction effected by the Society; that they had not agreed to have any<\/p>\n
such deduction and that the sale deeds in respect of the balance extent<\/p>\n
(remaining undeveloped) could be executed if development charges and<\/p>\n
land value were paid, as agreed.\n<\/p>\n
       7.     After considering the rival contentions and the available<\/p>\n
materials on record, the second respondent passed Ext.P2 award on<\/p>\n
27.12.1997 holding that the third respondent was bound to execute the<\/p>\n
OP No.31396 of 2000
\n                                      5<\/span><\/p>\n
sale deed in favour of the Society for 4 acres and 71.639 cents at a land<\/p>\n
value of Rs.500\/- per cent. However, the said verdict was made subject to<\/p>\n
two conditions as follow:\n<\/p>\n
                (i) Rs.80,000\/- deducted towards Income tax from
\n          the amount payable to the 3rd respondent towards
\n          development charges and remitted to Government shall
\n          be returned with 12% interest from 31.12.1986.\n<\/p><\/blockquote>\n
                (ii) On execution of the sale deed the land value
\n          can be deducted from the outstanding advance balance.
\n          But interest thereon will stand disallowed, as there is no
\n          agreement for levy of interest.<\/p><\/blockquote>\n
       The above conditions were stated as very much detrimental to the<\/p>\n
interest of the Society and hence Ext.P2 Award was subjected to challenge<\/p>\n
by filing appeal before the first respondent. But the first respondent, as per<\/p>\n
Ext.P1 judgment, declined interference in the Appeal, which in turn is<\/p>\n
subjected to challenge in this Original Petition.\n<\/p>\n
       8.     The principal issue as to the eligibility of the petitioner Society<\/p>\n
to get the remaining land of 4 acres and 71.639 cents of land, by way of<\/p>\n
sale deeds to be executed by the 3rd respondent for a sale consideration of<\/p>\n
Rs.500\/- per cent, giving credit to the balance development charges left at<\/p>\n
the hands of the said respondent as advance, stands confirmed in view of<\/p>\n
the Ext.P2 Award passed by the second respondent and upheld by the first<\/p>\n
respondent Tribunal vide Ext.P1. Admittedly, the direction given by the<\/p>\n
original authority and confirmed by the appellate authority in this regard has<\/p>\n
not been subjected to challenge from the part of the respondents and as<\/p>\n
OP No.31396 of 2000
\n                                        6<\/span><\/p>\n
such, it has become final. The remaining issue is only with regard to the<\/p>\n
condition imposed by the second respondent in Ext.P2 Award directing the<\/p>\n
petitioner to return the sum of Rs.80,000\/- deducted by the petitioner from<\/p>\n
the amounts payable to the 3rd respondent towards the ‘development<\/p>\n
charges’ and remitted to the income tax authorities (with interest at the rate<\/p>\n
of 12% per annum from 31.12.1986) and also as to the denial of interest on<\/p>\n
the balance amount left at the hands of the respondents forming part of the<\/p>\n
advance given as development charges.\n<\/p>\n
       9.     Obviously, the direction to repay the sum of Rs.80,000\/-<\/p>\n
deducted by the petitioner and remitted to the Income Tax account of the<\/p>\n
3rd respondent was on the basis of the stipulation under Section 194C (1)<\/p>\n
of the Income Tax Act. The said provision stipulates as follows:-<\/p>\n
      S.194C (1) Any person responsible for paying any sum to any
\n      resident (hereafter in this section referred to as the contractor) for
\n      carrying out any work (including supply of labour for carrying out
\n      any work) in pursuance of a contract between the contractor and a
\n      specified person shall, at the time of credit of such sum to the
\n      account of the contractor or at the time of payment thereof in cash
\n      or by issue of a cheque or draft or by any other mode, whichever is
\n      earlier, deduct an amount equal to–\n<\/p><\/blockquote>\n
       (i)    one per cent where the payment is being made or credit is
\n      being given to an individual or a Hindu undivided family;\n<\/p><\/blockquote>\n
       (ii)   two per cent where the payment is being made or credit is
\n      being given to a person other than an individual or a Hindu
\n      undivided family, of such sum as income tax on income comprised
\n      therein.<\/p><\/blockquote>\n
       It is the case of the petitioner that by virtue of the above provision,<\/p>\n
OP No.31396 of 2000
\n                                    7<\/span><\/p>\n
the petitioner being a Co-operative Society, there is a statutory duty to<\/p>\n
deduct the amount payable to the contractor at the rate of 2% towards the<\/p>\n
income tax payable by the latter. It was accordingly, that the amount of<\/p>\n
Rs.80,000\/- (2% of Rs.40,00,000\/- given as advance development<\/p>\n
charges) was deducted and remitted to the Income Tax Department, to the<\/p>\n
credit of the 3rd respondent and the necessary certificate was issued under<\/p>\n
Section 203 of the Act, as borne by Ext.P5. The above contention was<\/p>\n
however not accepted by the second respondent, while passing Ext.P2<\/p>\n
order, observing that the development work carried out by the 3rd<\/p>\n
respondent based on ‘Ext.P3 agreement’ was in fact given on contract, to<\/p>\n
one `Prince Enterprises’ as per ‘Ext.R1 agreement’ executed by the 3rd<\/p>\n
respondent and that the actual income tax payable in respect of the<\/p>\n
transaction was remitted as per Ext.R2 challan No.7 dated 03.04.1987.<\/p>\n
Observing that the same transaction has already suffered tax at two<\/p>\n
instances, the second respondent (accepting the contention of the 3rd<\/p>\n
respondent) ordered that the sum of Rs.80,000\/- deducted by the petitioner<\/p>\n
and remitted to the Income Tax department was to be repaid with interest<\/p>\n
at the rate of 12% per annum from 31.12.1986. With regard to the other<\/p>\n
claim, as to the payment of interest on the balance amount retained at the<\/p>\n
hands of the 3rd respondent, as part of the advance development charges,<\/p>\n
it was held as not covered by Ext.P3 agreement and hence rejected.<\/p>\n
      10.    After considering the challenge raised in the appeal, the first<\/p>\n
OP No.31396 of 2000
\n                                      8<\/span><\/p>\n
respondent Tribunal, as per Ext.P1 order, confirmed Ext.P2 with regard to<\/p>\n
the first condition to return the deducted sum of Rs.80,000\/- with interest,<\/p>\n
however on a different ground.        It was observed by the Tribunal that<\/p>\n
Section 194C (1) is applicable only in the case of payments to be effected<\/p>\n
to the contractor. In the instant case, it was held by the Tribunal that the 3rd<\/p>\n
respondent or the owner of the land has developed his own land, by<\/p>\n
incurring the necessary expenditure, which cost was being compensated<\/p>\n
by the petitioner and that undeveloped land also was liable to be conveyed<\/p>\n
for the agreed sale consideration of Rs.500\/- per cent, if there was any<\/p>\n
violation on the part of the respondent\/owner to develop the land. As such,<\/p>\n
it was held that the ‘deduction’ made by the petitioner\/appellant was quite<\/p>\n
unauthorized. With regard to the other direction in Ext.P2 Award (as to the<\/p>\n
return of balance, if any, after adjusting the sale consideration on execution<\/p>\n
of sale deed with respect to the extent of land), it was observed that there<\/p>\n
was no dispute or challenge; however omitting to consider the fact that the<\/p>\n
claim was with respect to the eligibility to get interest at the rate of 12% per<\/p>\n
annum on the advance development charges retained at the hands of the<\/p>\n
3rd respondent.\n<\/p>\n
       11.   Learned counsel for the petitioner submits that the finding and<\/p>\n
reasoning given by the first and second respondents are not correct or<\/p>\n
sustainable. With regard to the second claim regarding the interest on the<\/p>\n
balance of advance development charges paid by the petitioner, the<\/p>\n
OP No.31396 of 2000
\n                                    9<\/span><\/p>\n
reasoning given by the second respondent is that, it does not form part of<\/p>\n
Ext.P3 agreement, which does not appear to be correct. In fact, the claim<\/p>\n
arose admittedly for the reason that the development and conveyance of<\/p>\n
the property was not effected by the 3rd respondent within the stipulated<\/p>\n
time ending on 31.10.1985 and the 3rd respondent himself had sought for<\/p>\n
extension of time till 30.04.1986 which was allowed by the petitioner\/<\/p>\n
appellant Society as per Ext.P4 letter dated 20.11.1985, subject to the<\/p>\n
condition that interest was paid on the outstanding amount at the rate of<\/p>\n
12% per annum. Since further extension was sought for by the respondent<\/p>\n
till 31.12.1986, it was also granted by the petitioner Society on the same<\/p>\n
terms as mentioned in Ext.P4. This aspect was omitted to be considered<\/p>\n
on merits by the first respondent while passing Ext.P1 verdict, wherein it<\/p>\n
was simply observed that, with regard to the claim for adjustment of the<\/p>\n
balance advance development charges to be set off against the sale<\/p>\n
consideration, there was no dispute as such. This hence requires to be<\/p>\n
reconsidered and the claim in this regard is liable to be adjudicated on the<\/p>\n
basis of the actual facts and figures so as to determine the correct<\/p>\n
quantum involved.\n<\/p>\n
       12.   With regard to the direction to repay the sum of Rs.80,000\/-<\/p>\n
(deducted and remitted to the Income Tax Department) with interest at the<\/p>\n
rate of 12% per annum from 31.12.1986, the petitioner has got a case that<\/p>\n
the reliance placed by the second respondent on Ext.R1 and R2 is not<\/p>\n
OP No.31396 of 2000
\n                                   10<\/span><\/p>\n
correct or sustainable since the said documents were not produced with<\/p>\n
notice to the petitioner and that the 3rd respondent had no case that the<\/p>\n
transaction had already suffered tax, or that, the 3rd respondent was not<\/p>\n
liable to have any such deduction.     It is the specific contention of the<\/p>\n
petitioner that the amount deducted as above, was with the specific<\/p>\n
knowledge and consent of the 3rd respondent, since the said amount was<\/p>\n
set off towards the sale consideration payable to the 3rd respondent in<\/p>\n
respect of the sale of 5 acres and 40.980 cents of land (sold without<\/p>\n
development, at the rate of Rs.500\/- per cent) for a total sale consideration<\/p>\n
of Rs.2,70,490\/- besides giving credit to the interest payable on the<\/p>\n
outstanding balance development charges paid in advance.              It was<\/p>\n
accordingly, that the 3rd respondent executed 5 sale deeds on 31.12.1986<\/p>\n
without raising any protest and as such, the said respondent is estopped<\/p>\n
from raising any challenge in this regard. More so when, the deduction<\/p>\n
effected by the petitioner is stated as based on the statutory duty under<\/p>\n
Section 194 C(1).\n<\/p>\n
       13.   The factual position as narrated above, if correct, there<\/p>\n
appears to be a double payment in respect of the same cause of action as<\/p>\n
evidenced by Ext.P5 certificate and also Ext.R2 challan receipt whereby,<\/p>\n
there is an unlawful enrichment to the Income Tax department. Whether<\/p>\n
any such double payment has actually been obtained by the said<\/p>\n
department or whether the petitioner Society was bound to effect deduction<\/p>\n
OP No.31396 of 2000
\n                                     11<\/span><\/p>\n
in the instant case, because of the peculiar nature of transaction covered<\/p>\n
by Ext.P3 agreement, was a matter which ought to have been decided by<\/p>\n
the respondents 1 and 2 only after getting the views of the Income Tax<\/p>\n
Department as well. This is for the obvious reason that, if there is any<\/p>\n
double payment as above, the excess payment is liable to be reimbursed<\/p>\n
by the said department to the concerned party.\n<\/p>\n
       14.   In the said circumstances, the matter requires to be<\/p>\n
reconsidered after hearing the Income Tax Department as well.<\/p>\n
Accordingly impugned orders (Ext.P1 and P2) are set aside to the extent<\/p>\n
they are challenged and the matter is remanded to the first respondent<\/p>\n
Tribunal, for consideration of both the above issues afresh; on the question<\/p>\n
as to the claim for interest and also as to whether the deduction of the<\/p>\n
amount by the petitioner leading to issuance of Ext.P5 certificate was<\/p>\n
correct or sustainable and whether there is any double payment in respect<\/p>\n
of the same transaction\/cause of action and if so, as to the consequential<\/p>\n
steps to have the relative rights and liabilities settled. The Tribunal shall<\/p>\n
also consider the claim of the petitioner for interest on the basis of the<\/p>\n
enlargement of time sought for vide Ext.P3 application, on the basis of<\/p>\n
which Ext.P4 sanction was given and also the subsequent proceedings,<\/p>\n
whereby further extension of time was granted by the petitioner. It is made<\/p>\n
clear that the finding rendered by the second respondent and upheld by the<\/p>\n
first respondent, fixing the liability of the 3rd respondent to convey the<\/p>\n
OP No.31396 of 2000
\n                                     12<\/span><\/p>\n
remaining extent of 4 acres and 71.639 cents of land forming the subject<\/p>\n
matter of Ext.P3 agreement for the sale consideration of Rs.500\/- per cent,<\/p>\n
would stand in tact and the remand ordered hereby, is in no way to affect<\/p>\n
the same.\n<\/p>\n
      Considering the fact that the matter is more than two decades old,<\/p>\n
the first respondent Tribunal is directed to finalise the proceedings as<\/p>\n
above, as expeditiously as possible, at any rate within four months from the<\/p>\n
date of receipt of a copy of this judgment.\n<\/p>\n<\/p>\n
                                      P.R. RAMACHANDRA MENON,
\n                                              JUDGE.\n<\/p>\n
dnc<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Ekm Co.Op.House Construction … vs Kerala Co.Op.Tribunal on 23 December, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM OP.No. 31396 of 2000(K) 1. EKM CO.OP.HOUSE CONSTRUCTION SO.LTD … Petitioner Vs 1. KERALA CO.OP.TRIBUNAL … Respondent For Petitioner :DR.K.P.SATHEESAN For Respondent :SRI.K.JAGADEESCHANDRAN NAIR The Hon’ble MR. Justice P.R.RAMACHANDRA MENON Dated :23\/12\/2009 O […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-11991","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nEkm Co.Op.House Construction ... vs Kerala Co.Op.Tribunal on 23 December, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ekm-co-op-house-construction-vs-kerala-co-op-tribunal-on-23-december-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ekm Co.Op.House Construction ... vs Kerala Co.Op.Tribunal on 23 December, 2009 - 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