Dushyant Naagar vs The Commissioner of Income Tax (TDS)

B.V. Nagarathna, J.—The petitioners have sought a direction to the first respondent to refund a sum of Rs. 5,59,800/- together with interest thereon from 7-10-2013, as requested in their representation, which is at Annexure-H, dated 15-10-2013. Briefly stated facts are that the petitioners had purchased an apartment bearing No. 6 in building No. 2B, "VIVA", Thiswadi, Goa, constructed by the fourth respondent, for a valuable consideration of Rs. 62,20,000/-, a copy of the sale deed is produced as Annexure-A in support of his averment. u/s 194-IA of the income tax Act, 1961 (hereinafter referred to as the "Act", for the sake of brevity), where a sale consideration exceeds Rs. 50,00,000/- (Rupees fifty lakhs), in respect of immoveable properties, the intending purchasers have to deposit a sum equivalent 1% to the sale consideration as an advance tax on behalf of the vendor. In the instant case, accordingly, a sum of Rs. 62,200/- was to be deducted and paid to the vendor of the petitioners within the prescribed time. The petitioners in fact, deposited that amount by uploading Form 26-AS. The said deposit was made on 17-9-2013 on the web portal of the third respondent-Bank and through the Bank account of the petitioner bearing No. 10209764954. While effecting the said payment of account of certain technical glitches, the payment was made ten times of Rs. 62,200/-, which according to the petitioners was an excess payment. The petitioners immediately intimated the third respondent-Bank and also informed the Income Tax Department about it. Thereafter, they made several requests both oral and in writing, seeking refund of the excess payment of Rs. 5,59,800/-, as there were debit entries in the Bank account of the petitioners and hence, according to the petitioners, the amount was credited in the account of the Income Tax Department. There being no response from the Department to the request made by the petitioners, the petitioners have filed this writ petition seeking a direction for refund to the excess payment made by them.

I have heard the learned Counsel for the petitioners and the learned Standing Counsel for respondents 1 and 2 and learned Counsel for the Bank and perused the material on record. The Counsel for the Bank has supported the case of the petitioners.

The difficulty expressed by the learned Counsel for the respondent-Department was that the excess payment effected by the petitioners would have been reflected in the accounts of the fourth respondent and therefore, it would be difficult to reverse those entries at this stage and further, the petitioners would have to seek their remedy vis-a-vis the fourth respondent. It was stated that these transactions having been made electronically, the Department would have no control over the same and it is only at the stage when the returns of the fourth respondent are submitted and assessed, there could be reversal of the entries. However, the fact remains that the actual credit of these amounts have been made in the name of the Income Tax Department. There would be no credit entry in respect of the fourth respondent. Fourth respondent if at all could have taken advantage of these entries shown in Annexure "B", which is Form 26-AS, but that would not in any way result in excess payment being made by the petitioners if credited to the account of the fourth respondent. The excess sums are in fact, with the Department. All that the petitioners are seeking is refund of the excess payments. In this regard, the difficulty expressed by the learned Standing Counsel for the Department is also taken note of. Therefore, while directing the Income Tax Department, to refund the excess amount paid by the petitioners as per Annexure-B-- Form 26-AS, the Department is also directed to note and to make necessary changes vis-a-vis the excess payments made in the account of the fourth respondent. Further, fourth respondent is also directed not to reflect the payment at Sl. Nos. 2 to 10 of Annexure-B in its returns to be filed insofar as the transaction at Annexure-A is concerned. The excess payment lying in the credit of first respondent is directed to be refunded to the petitioners within a period of four weeks from the date of receipt of the certified copy of this order.

It is needless to observe that in view of this direction, both the first respondent and fourth respondent would not reflect the credit made at Sl. Nos. 2 to 10 in Annexure-B in the returns of the fourth respondent as well as in the records of the first respondent. With the aforesaid observations and directions, the writ petitions stand disposed of.