Kerala High Court
M/S. Hotel Varkala Park International vs The Kerala State Beverages (M & M) ... on 6 February, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
WP(C) NO. 4492 OF 2024
PETITIONER:
M/S. HOTEL VARKALA PARK INTERNATIONAL
VARKALA POST, VARKALA VILLAGE THIRUVANANTHAPURAM
DISTRICT - 695 141. REPRESENTED BY ITS PROPRIETRIX
SHEEJA V.S M/S. HOTEL VARKALA PARK INTERNATIONAL
VARKALA POST,
VARKALA VILLAGE THIRUVANANTHAPURAM DISTRICT
RESIDING AT NANDANAM,HOUSE NO.55E,
MG NAGAR,PEROORKADA,
THIRUVANANTHAPURAM DISTRICT,
PIN - 695 005.
BY ADVS.
GEEN T.MATHEW
O.RAMACHANDRAN NAMBIAR
RESPONDENTS:
1 THE KERALA STATE BEVERAGES (M & M)
CORPORATION LTD
A GOVERNMENT OF KERALA UNDERTAKING BEVCO TOWER,
PALAYAM VIKAS BHAWAN POST - THIRUVANANTHAPURAM
DISTRICT REPRESENTED BY ITS CHAIRMAN AND MANAGING
DIRECTOR, PIN - 695 033.
2 THE CHAIRMAN AND MANAGING DIRECTOR
THE KERALA STATE BEVERAGES (M & M) CORPORATION LTD
BEVCO TOWER, PALAYAM VIKAS
BHAWAN POST - THIRUVANANTHAPURAM DISTRICT,
PIN - 695 033.
3 THE MANAGER
KERALA STATE BEVERAGES (M & M) CORPORATION LTD FL 9
WAREHOUSE MENAMKULAM KINFRA APPAREL PARK, ST.
XAVIERS COLLEGE POST - THUMBA, THIRUVANANTHAPURAM
DISTRICT, PIN - 695 586.
BY ADV
NAVEEN T., STANDING COUNSEL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No.4492 of 2024
:2:
JUDGMENT
Dated this the 6th day of February, 2024
The petitioner is a FL-3 Licensee as per Renewed
Licence No.FL3-24/2023-2024/TVPM dated 31.03.2023 in
Thiruvananthapuram District, issued by the Deputy Excise
Commissioner. The licence is valid up to 31.03.2024. The
petitioner is taking liquor stock regularly from the respondents
and towards the purchase of the same, Tax is Collected at
Source by the respondents.
2. The petitioner states that the petitioner was served
with a notice dated 16.12.2023 from the 3 rd respondent stating
that an amount of ₹5,96,689/- (including interest) is to be
remitted immediately within seven days. The petitioner's
Permanent Account Number is AXTPS9216Q and is linked with
Aadhaar. As per Ext.P1, the petitioner enquired with the Income
Tax Office and as per their advice, the petitioner issued a letter
stating that there is no default in Aadhaar - Permanent Account
Number linking and the same is linked as per the portal of the
Income Tax Department. The demand is raised against the
TAN of the respondents and so the amount is to be paid by the
respondents and not by the petitioner. As per Ext.P2, the
petitioner received an e-mail from the respondents stating that
in order to avoid penal actions from IT Department for short
deduction / collection of TDS-TCS, all Warehouses are
reminded that TCS @ 5% and TDS @ 20% should be applied
to all inoperative PANs from 01.01.2024 onwards. As per
Ext.P3, the 3rd respondent again issued a notice directing the
petitioner to deposit ₹1,71,495/- (including interest) in the bank
account of the 3rd respondent within one week from the date of
notice. Until the payment is received, issue of liquor will be
ceased by making necessary changes in the ERP system, it
was stated.
3. As per Ext.P4, the petitioner gave reply to Ext.P3,
challenging the demand. As per Ext.P5, the petitioner received
a Revised Notice directing the petitioner to deposit ₹5,96,689/-
(including interest) within one week failing which the issue of
liquor will be ceased by making necessary changes in the ERP
system. As per Ext.P6, the petitioner received another notice
from the 3rd respondent stating that an amount of ₹3,96,219.06
(including interest) is to be paid within seven days. As per
Exts.P7 and P8, the petitioner filed replies to the Exts.P4 and
P5 notices. Exts.P3, P5 and P6 are arbitrary, malafide, illegal
and hence unsustainable in law, contends the petitioner. The
petitioner's Permanent Account Number and Aadhaar was
already linked and the fact was reported to the respondents by
Ext.P3 reply letter. The petitioner cannot be penalised for the
laches on the part of the respondents in updating the records,
contends the petitioner.
4. Standing Counsel entered appearance on behalf of
the respondents and resisted the writ petition. The Standing
Counsel submitted that the Department of Income Tax issued
notice to the 1st respondent seeking to remit certain amount
towards the short collection of TCS due to default committed by
the petitioner. The 1st respondent had no other go than to make
the remittances. The 1st respondent made remittance to the
Income Tax Department. Such remittance is to be treated as
one made on behalf of the petitioner and the petitioner is legally
liable to make up the payment made by the 1 st respondent
towards short collected of Tax Collected at Source.
5. The Standing Counsel submitted that the short
collections so made would come to ₹11,64,403/-. If the
petitioner has any dispute regarding the levy of TCS, the
petitioner can very well approach the Income Tax Department
and seek refund or adjustment. The Standing Counsel also
made available copies of the notices received from the Income
Tax Department in response to which the payment has been
made.
6. I have heard the learned Counsel appearing for the
petitioner and the learned Standing Counsel representing the
respondents.
7. It is evident that the Department of Income Tax,
Government of India had issued notice of intimation to the 1 st
respondent under Section 200A/206CB of the Income Tax Act,
1961 demanding payment of short collection of Tax Collected at
Source from the petitioner. It is in response to such statutory
notices issued by the Income Tax Department that the 1 st
respondent has made remittances of ₹11,64,403/-. The
petitioner is therefore bound to pay the said amount to the 1 st
respondent. If the petitioner has any grievance regarding the
legality of such collection, the petitioner has to take up the
matter with the Income Tax Department. In the circumstances, I
do not find any reason to quash Ext.P3 notice.
Taking into consideration the facts of the case, the
writ petition is disposed of directing that the petitioner shall
remit the short collection of Tax Collection at Source (TCS)
demanded by the 1st respondent in three equal and consecutive
monthly instalments. The first of such instalments shall be paid
on or before 20.02.2024. The petitioner shall submit an
undertaking agreeing to pay the dues in three equal and
consecutive monthly instalments before the 3 rd respondent. On
receipt of such undertaking, the 1 st respondent shall restore the
login ID of the petitioner.
Sd/-
N. NAGARESH
JUDGE
AMR
APPENDIX OF WP(C) 4492/2024
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE LETTER DATED
21.12.2023 ISSUED BY THE PETITIONER TO
THE 3 RD RESPONDENT.
Exhibit P2 TRUE COPY OF THE EMAIL DATED 30.12.2023
ISSUED BY THE 3 RD RESPONDENT TO THE
PETITIONER.
Exhibit P3 TRUE COPY OF THE NOTICE
NO.KSBC/MKLM/2023 - 24 DATED 09.01.2024
ISSUED BY THE 3 RD RESPONDENT.
Exhibit P4 TRUE COPY OF THE REPLY LETTER DATED
09.01.2024 ISSUED BY THE PETITIONER.
Exhibit P5 TRUE COPY OF THE REVISED NOTICE
NO.KSBC/MKLM/2023 - 24 DATED 20.01.2024
ISSUED BY THE 3 RD RESPONDENT.
Exhibit P6 TRUE COPY OF THE NOTICE DATED
27.01.2024 ISSUED BY THE 3 RD
RESPONDENT.
Exhibit P7 TRUE COPY OF THE REPLY DATED 29.01.2024
FILED BY THE PETITIONER BEFORE THE 3 RD
RESPONDENT.
Exhibit P8 TRUE COPY OF THE REPLY DATED 29.01.2024
FILED BY THE PETITIONER BEFORE THE 3 RD
RESPONDENT.
