Wp(C)/30034/2009 Of Kerala State Nirmiti Kendra v. The Commissioner Of Income Tax & Others

PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC MONDAY, THE 31ST DAY OF DECEMBER 2012/10TH POUSHA 1934 WP(C)No.30034 of 2009 (Y) --------------------------- PETITIONER(S)/PETITIONER: ------------------------ KERALA STATE NIRMITI KENDRA, NIRMITI HOUSE, P.T.P NAGAR, THIRUVANANTHAPURAM REPRESENTED BY ITS ADMINISTRATION MANAGER/FINANCIAL ADVISOR. BY ADV. SRI.M.K.SHASHI KUMAR RESPONDENT(S): -------------- 1. THE COMMISSIONER OF INCOME TAX THIRUVANANTHAPURAM. THIRUVANANTHAPURAM. 2. THE INCOME TAX OFFICER (TDS) AYAKAR BHAVAN, KOWDIAR, THIRUVANANTHAPURAM. 3. UNION BANK OF INCOME PERURKKADA BRANCH, T.C. 5/1089, MADOLIL R.J.TOWERS, OPP.THANKAMMA STADIUM, PEROORKADA PO THIRUVANANTHAPURAM. R.J.TOWERS, OPP.THANKAMMA STADIUM, PEROORKADA PO THIRUVANANTHAPURAM. *ADDL.R4 STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM. TAXES DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM. *ADDL.R5 UNION OF INDIA, REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, CENTRAL SECRETARIATE, TAXES DEPARTMENT, CENTRAL SECRETARIATE, NORTH BLOCK, NEW DELHI. (*IMPLEADED AS PER ORDER DATED 9.12.2009 IN I.A.No.15276/2009 (*IMPLEADED AS PER ORDER DATED 9.12.2009 IN I.A.No.15276/2009 R1 & R2 BY ADV.SRI.JOSE JOSEPH, SC, FOR INCOME TAX R3 BY ADV.SRI.A.S.P.KURUP, SC, UBI R3 BY ADV.SRI.A.S.P.KURUP, SC, UBI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARDON 31-12-2012, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: SS --------------------------- APPENDIX PETITIONERS EXHIBITS EXT.P1TRUE COPY OF THE REGISTRATION CERTIFICATE No.451/89 DATED 5.6.1989.No.451/89 DATED 5.6.1989. EXT.P2TRUE COPY OF THE RELEVANT PORTION OF THE NOTIFICATION ISSUED UNDER SECTION 194 A(iii)(f) OFTHE INCOME TAX ACT REPORTED IN THE A.N.AIYAR'S INDIAN TAX LAWS 2002. NOTIFICATION ISSUED UNDER SECTION 194 A(iii)(f) OFTHE INCOME TAX ACT REPORTED IN THE A.N.AIYAR'S INDIAN TAX LAWS 2002. EXT.P3TRUE COPY OF THE LETTER DATED 23.5.2007 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT BANK.THE PETITIONER TO THE 3RD RESPONDENT BANK. EXT.P4TRUE COPY OF LETTER DATED 24.8.2009 DIRECTING THE PETITIONER TO REMIT THE TDS.PETITIONER TO REMIT THE TDS. ADDL.EXT.P5TRUE COPY OF THE G.O.NO.(MS)25/89/Hsg. DATED 29.4.1989.29.4.1989. ADDL.EXT.P6TRUE COPY OF THE LETTER NO.PKDA/GEL/119/10-11DATED 3.6.2010.DATED 3.6.2010. RESPONDENTS EXHIBITS NIL // TRUE COPY \\ P.A. TO JUDGE SS ANTONY DOMINIC, J.==================== W.P.C. No. 30034 OF 2009====================Dated this the 31[st] day of December 2012 JUDGMENT The petitioner is a society registered under theprovisions of the Travancore-Kochi Literary Scientific andCharitable Societies Registration Act, 1955. Ext.P1 is thecertificate of registration. In this writ petition they seek adeclaration that they fall within the purview of the notificationissued by the Government of India under section 194 (A)(iii) (f)of the Income Tax Act and thus entitled to be exempted fromdeduction of tax and source on the interest income received bythem. 2. Section 194 A (iii) (f) states that the provisions of sub Section 1 of Section 194 A shall not apply to such incomecredited or paid to such other association or body which theCentral Government may for reasons to be recorded in writing,notified in this behalf in the Official Gazette. The extract of thenotification relied on by the petitioner is Ext.P2 and the relevantprovision of this notification reads thus: “Any Corporation established by a Central, State orProvincial Act; any company in which all the shares arehold (whether singly or taken together) by theGovernment or the Reserve Bank of India or a corporation owned by that Bank; any undertaking or body including asociety registered under the Societies Registration Act,1860 (XXI of 1860), financed wholly by the Government:SO 3489/22-10-70.” 3. Reading of the above provision of the notification “Any Corporation established by a Central, State orProvincial Act; any company in which all the shares arehold (whether singly or taken together) by theGovernment or the Reserve Bank of India or a corporation owned by that Bank; any undertaking or body including asociety registered under the Societies Registration Act,1860 (XXI of 1860), financed wholly by the Government:SO 3489/22-10-70.” 3. Reading of the above provision of the notification shows that in so far as Societies are concerned, only such ofthose Societies which are registered under the SocietiesRegistration Act 1860 are exempted. In other words, the termsof the notification itself show that a society like the petitionerwhich is registered under the Travancore-Kochi Literary Scientificand Charitable Societies Registration Act 1955 are not exemptedfrom the levy of TDS. 4. A provision for exemption has to be construedstrictly and this court has to confine the scope of the notificationto its words. Words of the notification are clear that theexemption is confined to Societies registered under the SocietiesRegistration Act. If that be so, this court cannot include societieswhich are not included in the notification by way of a declaration.Therefore, the prayer sought in the writ petition has to bedeclined. 5. Be that as it may, Section 197 of the Income TaxAct authorises the assessing officer to grant certificate ascontemplated therein if he is satisfied that the total income of therecipient justifies deduction of tax at a lower rate or without anydeduction of income tax. Therefore, I dispose of this writ petitionleaving it open to the petitioner to approach the assessing officerby making an application under Section 197 of the Income TaxAct. The writ petition is disposed of as above. ANTONY DOMINIC JUDGE kvr/