Kerala High Court
A.Nizamudheen vs State Of Kerala on 11 April, 2024
Author: P Gopinath
Bench: P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 11TH DAY OF APRIL 2024 / 22ND CHAITHRA, 1946
WP(C) NO. 38977 OF 2016
PETITIONER/S:
A.NIZAMUDHEEN
AGED 57 YEARS
PROPRIETOR, THOPPIL CONSTRUCTIONS, ADAYAMON PO,
THOLIKKUZHY, THIRUVANANTHAPURAM.695614.
BY ADV SRI.AJITH KRISHNAN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY,LOCAL SELF
GOVERNMENT DEPARTMENT,GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM.695001.
2 THE PROJECT MANAGER
KOCHI MUNICIPAL CORPORATIONS,JN NURM/KSUDP-PROJECT
IMPLEMENTATIONS UNIT,CORPORATION OFFICE, KOCHI.II.
3 STATE BANK OF TRAVANCORE
REPRESENTED BY CHIEF MANAGER,KILIMANOOR BRANCH,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.P.FAZIL,SC, COCHIN CORPORATION
SRI.JAWAHAR JOSE, STATE BANK OF TRAVANCORE
SRI.P.FAZILSC COCHIN CORPORATION
SRI.D.G.VIPIN
SRI.JAWAHAR JOSE STATE BANK OF TRAVANCORE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P (C) No.38977/2016 -2-
JUDGMENT
The petitioner is an A-class Government Contractor registered with the
Public Works Department. According to the petitioner the petitioner is the
sole proprietor of his concern. The petitioner is aggrieved by the fact that the
2nd respondent had deducted TDS on amounts payable to the petitioner @ 2%
in the place of 1 % in the case of payment to individuals under the provisions
of Section 194 (c) of the Income Tax Act, 1961.
2. The learned counsel for the 2nd respondent would submit that the
petitioner had not produced any document to show that the concern of the
petitioner is a proprietary concern and therefore the provisions of Section
194 (c) (1) (ii) were applied and payments were made after deducing TDS @
2%. It is submitted that a decision can be taken in the matter after affording
to the petitioner an opportunity of being heard.
3. Having heard the learned counsel for the petitioner and the
learned counsel for the 2nd respondent, I am of the view that the learned
counsel is right is contending that if the concern of the petitioner is a
proprietary concern, then the TDS has to be deducted under Section 194 (c)
(1) (i) and not under Section 194 (c) (1) (ii) of the Income Tax Act, in which
case TDS has to be deducted @ 1 % and not @ 2%. However, if the amounts
have been paid over to the Income Tax Department by the 2 nd respondent and
the petitioner has received credit of the same in his assessment for the
respective assessment year or years, then the question of requiring the 2 nd
respondent again pay the differential amount to the petitioner does not arise
for consideration.
4. Therefore, this writ petition is disposed of directing the 2 nd
respondent to consider the case of the petitioner, however if the amounts
payable to the petitioner had been paid over to the Income Tax Department
and the petitioner had received credit of the same, the 2 nd respondent is not
required again to pay the amount to the petitioner. Writ petition is disposed
of with the aforesaid direction. The 2nd respondent shall consider the claim of
the petitioner as directed above within a period of 3 months from the date of
receipt of a certified copy of this judgment.
Sd/-
GOPINATH P.
JUDGE
AMG
APPENDIX OF WP(C) 38977/2016
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE CONTRACTORS REGISTRATION CARD
ISSUED TO THE PETITIONER.
EXHIBIT P2 TRUE COPY OF THE LETTER OF ACCEPTANCE
NO.KSUDP/1536/09/COC DATED 11.2.2011 ISSUED BY THE
2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE CONTRACT AGREEMENT
NO.KSUDP/PIU/13/10-11 ON 16.2.2011 EXECUTED BETWEEN
THE PETITIONER AND 2ND RESPONDENT.
EXHIBIT P4 TRUEU COPY OF THE PART PAYMENT CHEQUE DATED
21.3.2016 ISSUED TO THE PETITIONER.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 18.8.2016.
EXHIBIT P6 TRUE COPY OF THE LETTER NO.KSUDP/1536/09/COC DATED
10.11.2016 ISSUED BY THE 2ND RESPONDENT TO THE
PETITIONER.
EXHIBIT P7 TRUE COPY OF THE LETTER ISSUED TO THE 3RD
RESPONDENT BY THE 2ND RESPONDENT.
