Wp(C)/5040/2023 Of Malini v. The Chief Commissioner Of Income Tax (Tds), *(Corrected)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH TUESDAY, THE 12 DAY OF SEPTEMBER 2023 / 21ST BHADRA, 1945WP(C) NO. 5040 OF 2023 PETITIONERS: 1MALINI,AGED 47 YEARS, W/O DILEEP, CHARAMAYIL HOUSE, KOTHAMANGALAM VILLAGE, KUTHUKUZHY BHAGOM, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, PIN – 686691. 2ABHINAND,AGED 18 YEARS,S/O DILEEP, CHARAMAYIL HOUSE, KOTHAMANGALAM VILLAGE, KUTHUKUZHY BHAGOM, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, PIN – 686691.3AMRUTHA,AGED 13 YEARS, D/O DILEEP, MINOR, REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN THE 1ST PETITIONER MALINI, CHARAMAYIL HOUSE, KOTHAMANGALAM VILLAGE, KUTHUKUZHY BHAGOM, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, PIN – 686691. BY ADVS. SRI. DR. V.N.SANKARJEE SRI. P. VISWANATHA MENON RESPONDENTS: 1THE CHIEF COMMISSIONER OF INCOME TAX (TDS), *(CORRECTED)KERALA, C.R. BUILDING, I.S. PRESS ROAD, KANAYANNUR TALUK, ERNAKULAM DISTRICT* CORRECTED AS THE COMMISSIONER OF INCOME TAX(TDS), KERALA, C. R. BUILDING, I. S. PRESS ROAD, KANAYANNOOR TALUK, ERNAKULAM DISTRICT, PIN-682018. (AS PER ORDER DATED 09.08.2023 IN I.A.1/2023 IN WP(C)5040/2023, PIN – 682018) 2THE NATIONAL INSURANCE COMPANY LTD.,REGISTERED OFFICE 3, MIDDLE TOWN STREET, KOLKATA, REPRESENTED BY ITS MANAGING DIRECTOR,PIN – 700071. 3THE DIVISIONAL MANAGER,NATIONAL INSURANCE COMPANY LTD., ALUVA DIVISIONAL OFFICE, PUMP JUNCTION, ALUVA, ERNAKULAM DISTRICT, PIN – 683101. BY ADVS. SRI. CHRISTOPHER ABRAHAM, SC - INCOME TAX SMT. LATHA SUSAN CHERIAN SRI. GEORGE A.CHERIAN SRI. GEORGE CHERIAN (SR.) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.09.2023, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: DINESH KUMAR SINGH, J. -------------------------- W.P.(C) No.5040 of 2023 ------------------------- Dated this the 12[th] day of September, 2023 JUDGMENT 1.The present writ petition under Article 226 of theConstitution of India has been filed for a direction to the 1[st]respondent to refund Rs. 5,67,939/- (Rupees Five lakh sixty seventhousand nine hundred and thirty nine only) being the total TDSamount deducted from the amount of compensation awarded tothe three petitioners by the Motor Accidents Claims Tribunal(MACT), Perumbavoor vide the award dated 31.08.2017 passed inO.P.(MV) No.392 of 2014. 2.The petitioners are not the assessees under the provisionsof the Income Tax Act. They don’t even possess PAN Card. The 3[rd]respondent Insurance Company while making the payment ofcompensation to the petitioners had deducted the TDS amount ofRs.1,89,313/- (Rupees One lakh eighty nine thousand threehundred and thirteen only) from each of the three petitioners. 3.The submission of the Learned Counsel for the petitioners isthat the petitioners are not liable to file return of income as they are not the assessees under the provisions of Income Tax Act. It is not in dispute that no amount of income tax is payable on thecompensation awarded by the Motor Accidents Claims Tribunal.TDS is nothing but an advance tax on the income of the assessees.It is deducted at source by the persons making payment to anassessees. When no income tax is payble and the petitioners arenot assessees, there is no question of them filing the returns ontheir income. 3.The submission of the Learned Counsel for the petitioners isthat the petitioners are not liable to file return of income as they are not the assessees under the provisions of Income Tax Act. It is not in dispute that no amount of income tax is payable on thecompensation awarded by the Motor Accidents Claims Tribunal.TDS is nothing but an advance tax on the income of the assessees.It is deducted at source by the persons making payment to anassessees. When no income tax is payble and the petitioners arenot assessees, there is no question of them filing the returns ontheir income. 4.In the above circumstances, I do not find any substance inthe submission of Mr. Christopher Abraham, Learned Counsel forthe 1[st] respondent that unless the petitioners file return of theirincome, their application for return of the TDS amount cannot beprocessed. When the petitioners are neither assessees nor theyhave an income for which the return can be filed, the refund ofTDS amount deducted and deposited by the Insurance Companyon the compensation awarded by the MACT has to be processedon a simple application by the petitioners. Thus I grant liberty tothe petitioners to file an application before the 1[st] respondentwithin a period of ten days from today and the 1[st] respondentCommissioner of Income Tax (TDS), Kerala shall process the saidapplication and refund the TDS amount deducted and deposited by the Insurance Company from the compensation paid to the petitioners. Such refund should be processed within a period of one month after filing the application by the petitioners. With the aforesaid directions the writ petition is finallydisposed of. Svn Sd/- DINESH KUMAR SINGH JUDGE APPENDIX OF WP(C) 5040/2023 PETITIONERS’ EXHIBITS EXHIBIT P1TRUE COPY OF THE AWARD DATED 31.8.2017 IN O.P.(MV) NO.392/2014 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR EXHIBIT P2TRUE COPY OF THE CLAIM FILE NO. P8898 DATED 10.5.2018 OF THE 2ND RESPONDENT ISSUED TO THE 1ST PETITIONER