[Cites 8, Cited by 0]
Kerala High Court
Vivekanand V.V vs The Commissioner Of Income Tax,Aayakar ... on 5 January, 2026
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
WA NO. 2142 OF 2025 1 2026:KER:185
WA NO. 2146 OF 2025
WA NO. 2147 OF 2025
WA NO. 2148 OF 2025 &
WA NO. 2149 OF 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 5TH DAY OF JANUARY 2026 / 15TH POUSHA, 1947
WA NO. 2142 OF 2025
AGAINST THE JUDGMENT DATED 03.04.2025 IN WP(C) NO.39376 OF
2024 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
SARATH V.S.,
AGED 37 YEARS
MURUKKARATHALA PUTHEN VEEDU, 10-58, PADANTHALUMOODU,
NEAR SREE DHARMA SHASTHA TEMPLE, VILAVANCODE,
KANYAKUMARI, TAMIL NADU, PIN - 629163
BY ADV SHRI.ADARSH SIVADASAN
RESPONDENTS/RESPONDENTS:
1 THE COMMISSIONER OF INCOME TAX,AAYAKAR BHAVAN,
KOWDIAR, THIRUVANANTHAPURAM, PIN - 695003
2 ATTINAD SOFTWARE PVT. LTD.,
REPRESENTED BY ITS DIRECTOR, UNIT 355, NILA BUILDING,
TECHNOPARK, THIRUVANANTHAPURAM, PIN - 695581
BY ADVS.
SRI.NAVANEETH.N.NATH
SRI.P.G.JAYASHANKAR, SC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.01.2026,
ALONG WITH WA.NOs.2146/2025, 2147/2025 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA NO. 2142 OF 2025 2 2026:KER:185
WA NO. 2146 OF 2025
WA NO. 2147 OF 2025
WA NO. 2148 OF 2025 &
WA NO. 2149 OF 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 5TH DAY OF JANUARY 2026 / 15TH POUSHA, 1947
WA NO. 2146 OF 2025
AGAINST THE JUDGMENT DATED 03.04.2025 IN WP(C) NO.26520 OF
2024 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
VIVEKANAND V.V.,
AGED 36 YEARS
VELLAMPARAMBIL HOUSE, PERUVAMKULANGARA, OLLUR P.O.,
THRISSUR, PIN - 680306
BY ADV SHRI.ADARSH SIVADASAN
RESPONDENTS/RESPONDENTS:
1 THE COMMISSIONER OF INCOME TAX,AAYAKAR BHAVAN,
KOWDIAR, THIRUVANANTHAPURAM, PIN - 695003
2 ATTINAD SOFTWARE PVT. LTD.,
REPRESENTED BY ITS DIRECTOR, UNIT 355, NILA BUILDING,
TECHNOPARK, THIRUVANANTHAPURAM, PIN - 695581
BY ADVS.
SRI.NAVANEETH.N.NATH
SRI.P.G.JAYASHANKAR, SC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.01.2026,
ALONG WITH WA.No.2142/2025 AND CONNECTED CASES, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WA NO. 2142 OF 2025 3 2026:KER:185
WA NO. 2146 OF 2025
WA NO. 2147 OF 2025
WA NO. 2148 OF 2025 &
WA NO. 2149 OF 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 5TH DAY OF JANUARY 2026 / 15TH POUSHA, 1947
WA NO. 2147 OF 2025
AGAINST THE JUDGMENT DATED 03.04.2025 IN WP(C) NO.26492 OF
2024 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
MRIDUL RAJ KUNNON,AT KUNNON HOUSE,
AGED 36 YEARS
THALIYIL, KANNUR UNIVERSITY CAMPUS P.O., KANNUR,
KERALA, PIN - 670567
BY ADV SHRI.ADARSH SIVADASAN
RESPONDENTS/RESPONDENTS:
1 THE COMMISSIONER OF INCOME TAX,AAYAKAR BHAVAN,
KOWDIAR, THIRUVANANTHAPURAM, PIN - 695003
2 ATTINAD SOFTWARE PVT LTD.,
REPRESENTED BY ITS DIRECTOR, SITUATED AT UNIT 355, NILA
BUILDING, TECHNOPARK, THIRUVANANTHAPURAM, PIN - 695581
BY ADVS.
SRI.NAVANEETH.N.NATH
SRI.P.G.JAYASHANKAR, SC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.01.2026,
ALONG WITH WA.No.2142/2025 AND CONNECTED CASES, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WA NO. 2142 OF 2025 4 2026:KER:185
WA NO. 2146 OF 2025
WA NO. 2147 OF 2025
WA NO. 2148 OF 2025 &
WA NO. 2149 OF 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 5TH DAY OF JANUARY 2026 / 15TH POUSHA, 1947
WA NO. 2148 OF 2025
AGAINST THE JUDGMENT DATED 03.04.2025 IN WP(C) NO.26493 OF
2024 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
ZALMA JALAL,
AGED 35 YEARS
T.C. 4/1465 (C1), CLIFF VALLEY, YMR JUNCTION, KOWDIAR
P.O., THIRUVANANTHAPURAM, PIN - 695003
BY ADV SHRI.ADARSH SIVADASAN
RESPONDENTS/RESPONDENTS:
1 THE COMMISSIONER OF INCOME TAX,AAYAKAR BHAVAN,
KOWDIAR, THIRUVANANTHAPURAM, PIN - 695003
2 ATTINAD SOFTWARE PVT. LTD.,
REPRESENTED BY ITS DIRECTOR, UNIT 355, NILA BUILDING,
TECHNOPARK, THIRUVANANTHAPURAM, PIN - 695581
BY ADVS.
SRI.NAVANEETH.N.NATH
SRI.P.G.JAYASHANKAR
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.01.2026,
ALONG WITH WA.2142/2025 AND CONNECTED CASES, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WA NO. 2142 OF 2025 5 2026:KER:185
WA NO. 2146 OF 2025
WA NO. 2147 OF 2025
WA NO. 2148 OF 2025 &
WA NO. 2149 OF 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 5TH DAY OF JANUARY 2026 / 15TH POUSHA, 1947
WA NO. 2149 OF 2025
AGAINST THE JUDGMENT DATED 03.04.2025 IN WP(C) NO.39367 OF
2024 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
LITHU T.V.,
AGED 35 YEARS
THIRUVATHIRA, T.C53/415, PONNUMANGALAM, NEMOM P.O.,
THIRUVANANTHAPURAM, PIN - 695020
BY ADV SHRI.ADARSH SIVADASAN
RESPONDENTS/RESPONDENTS:
1 THE COMMISSIONER OF INCOME TAX,AAYAKAR BHAVAN,
KOWDIAR, THIRUVANANTHAPURAM, PIN - 695003
2 ATTINAD SOFTWARES PVT. LTD.,
REPRESENTED BY ITS DIRECTOR, UNIT 355, NILA BUILDING,
TECHNOPARK, THIRUVANANTHAPURAM, PIN - 695581
BY ADVS.
SRI.NAVANEETH.N.NATH
SRI.P.G.JAYASHANKAR, SC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.01.2026,
ALONG WITH WA.2142/2025 AND CONNECTED CASES, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WA NO. 2142 OF 2025 6 2026:KER:185
WA NO. 2146 OF 2025
WA NO. 2147 OF 2025
WA NO. 2148 OF 2025 &
WA NO. 2149 OF 2025
JUDGMENT
Dr. A.K.Jayasankaran Nambiar, J.
These Writ Appeals impugn the judgment dated 03.04.2025 of a
learned Single Judge in WP(C) Nos.26492, 26493, 26520, 39367, and 39376 of
2024. The brief facts necessary for the disposal of these Writ Appeals are as
follows:
2. The Writ Petitions aforementioned were filed by employees of an
entity known as "Attinad Software Pvt. Ltd", who were aggrieved by the
demand of income tax equivalent to the amount of Tax Deducted at Source
(TDS) by the employer entity from out of the salaries paid to them. It was the
contention of the appellants/writ petitioners that their employer, having
deducted amounts towards tax at source from the salaries paid to them, did not
remit the said deducted amounts to the Income Tax Department and
consequently, they were asked to pay the said tax amounts at the time of
finalisation of their individual assessment under the Income Tax Act (for short
'the IT Act').
3. The appellants contend that in view of the specific provision of
Section 205 of the IT Act, which prohibits a direct demand of tax deductible at
source from an assessee, they could not have been made liable to income tax to
the extent of the amount that had already been deducted by their employer at
the time of payment of the salaries to them. Reliance was placed by the
WA NO. 2142 OF 2025 7 2026:KER:185
WA NO. 2146 OF 2025
WA NO. 2147 OF 2025
WA NO. 2148 OF 2025 &
WA NO. 2149 OF 2025
appellants on the following judgments of the Supreme Court in support of their
contention in CIT v. Eli Lilly & Company (India) (P) Ltd. [(2009) 15 SCC
1], Sanjay Sudan v. Asst. CIT [(2023) 452 ITR 107 (Delhi)], CIT v. Om
Praksh Gattani [(2000) 242 ITR 638] and Chintan Bindra v. CIT [(2023
SCC OnLine Del 7539] and the unreported judgment of the Bombay High
Court in Aslam Checkar v. Income Tax Officer (Judgment dated 10.09.2024
in Writ Petition (L) No.2442 of 2024 and connected cases).
4. The learned Single Judge, who considered the Writ Petitions took
note of the provisions of Section 199 and Section 205 of the IT Act and found
that on a joint reading of the two provisions, the prohibition under Section 205
would operate only if there had been a tax deduction at source by the
employer in the manner contemplated under Section 199 of the IT Act. The
learned Judge reasoned that in view of the fact that there was no payment by
the employer to the central government/Income Tax department of the Tax
deducted from the salaries paid to the employee, the Income Tax Department
could not have been asked to grant credit of the TDS to the appellants at the
time of completion of their individual assessments under the IT Act. While
arriving at the said finding, the learned Single Judge placed reliance on a
Division Bench judgment of the Gauhati High Court in CIT v. Om Praksh
Gattani [(2000) 242 ITR 638] as also the Judgment dated 10.09.2024 of the
Bombay High Court in Aslam Checkar v. Income Tax Officer in Writ
Petition (L) No.2442 of 2024 and connected cases to find that since the
amounts deducted as TDS from the salaries paid to them had not been
remitted by the employer to the Central Government/Income Tax Department,
WA NO. 2142 OF 2025 8 2026:KER:185
WA NO. 2146 OF 2025
WA NO. 2147 OF 2025
WA NO. 2148 OF 2025 &
WA NO. 2149 OF 2025
the appellants could not be granted the relief of a direction to the Income Tax
Department to grant credit to the extent of tax deducted from their salaries by
the employer concerned.
5. On going through the reasoning of the learned Single Judge in
the impugned judgment, we find ourselves in complete agreement with the
same. A reading of Section 199 and Section 205 of the IT Act would clearly
suggest that the prohibition under Section 205 is only against calling upon an
assessee to pay the TDS amount directly to the Department. The said
provision, however, begins with the words "where tax is deductible at source
under the forgoing provisions of this Chapter". In our view, as rightly
understood by the learned Single Judge, the prohibition can only arise in
situations where there has been a deduction of tax at source as contemplated
under Sections 192 & 199 of the IT Act. The provisions of Section 199 of the
IT Act clearly indicate that no credit for tax deducted at source can be
granted to an assessee claiming the same unless a deduction of tax at source
has been made in accordance with the provisions of the IT Act and paid to the
Central Government. On the facts of the instant case, what is significant is
that the demand made by the Income Tax Department is not for an amount
equivalent to the TDS from the assessees concerned; the demand in these
cases is of the tax payable by the assessees (appellants) consequent to the
completion of their assessment for the relevant assessment year under the IT
Act. Under normal circumstances, when an assessment is completed against
an assessee similar to the appellants herein, the amounts lying to their credit
by way of tax deducted at source would be adjusted against the tax liability
WA NO. 2142 OF 2025 9 2026:KER:185
WA NO. 2146 OF 2025
WA NO. 2147 OF 2025
WA NO. 2148 OF 2025 &
WA NO. 2149 OF 2025
determined under the respective assessments. In the instant case, the
appellants were called upon to pay the tax equivalent to the tax amount
deducted at source by the employer, only because there was no amount by
way of credit to be adjusted against the tax liability determined against them
in their assessment. In our view, the remedy of the appellants would lie only
in proceeding against their employer for a recovery of the salary amount
short paid to them, under the guise of tax deducted at source.
We also note that the learned Single Judge had while disposing the
Writ Petitions protected the interest of the appellants by observing that if any
amount is recovered from the employer pursuant to steps initiated by the
Income Tax Department against them under the provisions of the IT Act,
credit of any amounts recovered vis-a-vis the appellants shall be given to
them and the demands to the extent of such recovered amount would stand
effaced. In our view, the above relief is the best that the appellants can
aspire for under the scheme of the statute, and hence, we see no reason to
interfere with the impugned judgment of the learned Single Judge. The Writ
appeals, therefore, fail and are accordingly dismissed.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
mns
