CC No.1277.2016

Filed on 21.09.2016

Disposed on.25.09.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 25^th DAY OF SEPTEMBER 2017

CONSUMER COMPLAINT NO.1277/2016

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                     MEMBER

                                              V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 21.09.2016 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to refund the amount of Rs.85,000/- towards advance Income Tax for the Assessment Year 2006-07 along with interest at 18% p.a and to pay compensation of Rs.1,50,000/- for causing damages, hardship, mental agony, loss and inconvenience and other reliefs. 
2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that the Complainant remitted his advance Income Tax through Opposite Party No.2 vide cheque No.746266, dt.08.02.2006, drawn on State Bank of Mysore, HRBR Layout Branch, Bengaluru and the same is remitted on 08.02.2006, vide Taxpayer’s Counter foil.  The Complainant is entitled for certain amount of refund for the subsequent assessment years.  However from the Income Tax Department, the refund was not coming through.  The Complainant approached his Chartered Accountant and addressed a letter to the Income Tax Officer, Circle 6(1), Bengaluru, vide letter dt.11.09.2013, by his Chartered Accountant and also letter dt.28.10.2014 respectively.  After innumerable complaints and meeting, the officers of the concerned with the Income Tax Department for quite a number years, now in the Month of January 2016, it has come to the notice of the Complainant that the advance Tax paid on 08.02.2006 for a sum of Rs.85,000/- for the Assessment Year 2006-07 was not received by the Income Tax Department and therefore, the Income Tax refund being adjusted for the refund of the subsequent years for the income Tax due to the Year 2006-07 and also interest.  After the Complainant came to know about the non-receipt of the advance income tax for the assessment year 2006-07 for a sum of Rs.85,000/-was surprised and immediately the Complainant brought to the notice of the Corporation Bank, vide letter dt.22.01.2016 for non-remittance of advance Tax for the assessment Year 2006-07 remitted by him through Cheque drawn on State Bank of Mysuru stated supra.  However, the Opposite Party No.2 checked their accounts and on scrutiny, it has come to the notice of the Opposite Party No.2 that this said amount remitted towards advance Tax for the assessment Year 2006-07 has been remitted to the Head of Account No.0023 which pertains to Hotel receipts, instead of Head of Account No.0021 which pertains to the Income Tax.  This irreparable grave mistake committed by the Opposite Party No.2, has resulted in deduction of the Income Tax refund due with interest from the subsequent years refund dues from the Income Tax Department.  The Opposite Party No.2 issued a Computer generated receipt maintained by them.  The Complainant has been making Marathon attempts for refund of the amount remitted through Corporation Bank towards the advance Tax paid for the assessment year 2006-07.  The Complainant is undergoing great mental agony resulting in serious health hazard, due to the mistake committed by the Opposite Party No.2.  The Income Tax Department deducted the entire tax dues and interest for the Assessment Year 2006-07 from the refund of Tax payable by the Income Tax Department to the Complainant for the subsequent Years.  Now the Opposite Party shall pay the entire advance Tax remitted for the assessment Year 2006-07 with interest at the rate of 18% p.a., along with the cost of the litigation and also other incidental expenses incurred by the Complainant.   The Complainant all the efforts made by him with the Opposite Parties through letter correspondences in addition to his personal visits to the Opposite Party and having no fruitful solution.  Having tried and fed up with the attitude, conduct and not getting such concrete solution till this day.   Hence, this complaint. 

3. In response to the notice, the Opposite Parties put their appearance through their counsel and filed their common version.  In the version pleaded that the complaint is false, frivolous and vexatious.  The Opposite Party No.1 is not the necessary party to the complaint on the other hand the Complainant should have make by Income Tax Department as the Opposite Party.  Therefore, the Complaint may be dismissed on non-joinder of necessary parties.  The Complainant remitted his advance income tax through the Opposite Party No.2 vide Cheque No.746266 dt.08.02.2006 drawn on State Bank of Mysore, HRBR Layout Branch, Bangalore.   The Complainant is entitled for certain amount of refund for the subsequent assessment years is not within the knowledge of the Opposite Parties.  The Complainant has stated that he has not received refund amount from the Income Tax Department.  But the Complainant has utterly failed to follow up with Income Tax Department for the said refund in the next financial Year of 2007-08.  However the Complainant has admitted that he has approached his chartered accountant and addressed a Letter to the Income Tax Officer only on 11.09.2013 i.e., after lapse of 7 Years.  The Complainant after innumerable complaints and meetings with Income Tax Department for a number of Years, he came to know that the advance tax paid on 08.02.2006 for a sum of Rs.85,000/- for the assessment Year 2006-07 is denied as false.  The Complainant has not produced any letter correspondence with the Income Tax Department during the period from 08.02.2006 to 11.09.2013.  It is true that the Complainant has brought to the notice of Opposite Party No.2 regarding non receipt of advance Income Tax for the assessment Year 2006-07 vide his letter dt.22.01.2016.  It is needless to submit that the Complainant has approached the Opposite Party No.2 after lapse of 10 Years.  However on receipt of the said letter, the Opposite Party No.2 has immediately acted upon and taken up the matter with its chartered accountant Mr.Dhananjay Pai, who prepared a request form for Challan correction and consequential rectification in assessment dt.18.02.2016.  The Opposite Party No.2 has keep on informing to Complainant regarding the refund developments vide their email correspondence dt.13.05.2016, 26.05.2016 and 27.05.2016.  In fact one Mr.Siddu, the Auditor of Opposite Party No.2 has personally visited the Income Tax Department on 26.05.2016 and personally discussed with the officials and the said officials have tried to rectify the mistake over on several times, but the same was not taking the update in Assesse PAN number.  This was brought to the knowledge of Complainant on the same day as revealed from the above correspondence.  The Opposite Party No.2 has also taken up the matter through their Nagapura Branch for verification in Voltas vide their Email correspondence dt.27.05.2016 and 30.05.2016.  The said branch has informed that the corrections of remittance to the wrong head can be permitted within 90 days only as the Window period will be expired for Challan correction/rectification.  In the meantime, the Complainant has complained to Opposite Party No.1 and on receipt of his complaint, the Opposite Party No.1 has also requested the Opposite Party No.2 to look into the matter and resolved the issue.  The Opposite Party No.2 has again addressed a letter dt.08.06.2016 to Income Tax Department and requested for refund of the said amount to the Complainant.  The Opposite Party No.2 has addressed one more letter on 23.08.2016 to the Income Tax Department and requested for resolving the issue in refunding the amount to the Complainant.   The Opposite Party No.2 has again made several attempts for refund through their Nagapura Branch, Voltas Department and the said Branch has informed the Opposite Party No.2 that the representation shall be made to Income Tax Department directly as the said branch is unable to rectify the wrong entry of lapse of many years.  The Branch Head of Opposite Party No.2 Mr.R.Devaraj, the Ex-Branch Manager Mr.P.Antony Vergheese and Mr.Siddu, the Auditor have personally met Mrs.Nalini, the Income Tax Officer and explained the above developments and requested for refund of aforesaid advance tax amount to the Complainant.  The Income Tax Officer has informed that 01.04.2006 onwards, the correction challans were computerized and the same can be rectified.  But the previous challans were manual in nature and those challans were shifted to Income Tax Head Office at New Delhi.  The said old challans can be rectified by the Complainant personally through “Senior Citizen Grievance Cell”.  When the Opposite Party No.2 informed the said matter to the Complainant, the Complainant has refused to do so and on the other hand he threatened the Opposite Parties that he will recover the said amount with penalty through Court.    Therefore, when the Complainant has refused to cooperate, the Opposite Party No.2 has addressed a letter to the Income Tax Department on 08.11.2016 and requested for refund of the advanced Income Tax amount to the Complainant.  But the said Income Tax Department has not replied to said letter, which is well within knowledge of the Complainant.  But he Complainant with ulterior motive has filed this complaint against the Opposite Parties by suppressing material facts.  Due to oversight and human error, the above payment was credited to wrong head of account to 0023 (Hotel receipts) instead of 0021 (Advance Tax).  The said mistake was not intentional but bonafide.  However, the Opposite Parties have made honest attempts with the Income Tax Department for refunding the said amount.  This Hon’ble Forum may direct the Complainant to make a representation to Income Tax Department at New Delhi through “Senior Citizen Grievance Cell and kindly dismiss the above complaint and with costs and prays to dismiss the complaint against Opposite Party Nos.1 & 2.

4. The Complainant, Sri.H.C.Mohan filed his affidavit by way of evidence and closed his side.  On behalf of the Opposite Party Nos.1 & 2, the affidavit of one Sri.R.Devaraj has been filed.   Heard the arguments.

5.      The points that arise for consideration are:-

1. Whether the complaint is bad for non-joinder of necessary parties ?
2. Whether this complaint is barred by Limitation ?
3. Whether the Complainant has proved the alleged deficiency in service by the Opposite Parties ?
4. If so, to what relief the Complainant is entitled?

6.     Our findings on the above points are:-

                POINT (1):-  Negative

POINT (2):-  ‘No’

POINT (3):-  Affirmative

POINT (4):-  As per the final Order

REASONS

7. POINT NO.1:- The learned Counsel for the Opposite Parties argued that this complaint is bad for non-joinder of necessary parties.  The Opposite Party No.1 is not the necessary party.  On the other hand, the Income Tax Department is a necessary proper party.  In the absence of the Income Tax Department, this complaint cannot be decided.  Hence, the complaint is bad for non-joinder of necessary parties. 
8. With this argument and on perusal of record, the Complainant filed this complaint against Opposite Party No.1, who is the Head Office of Opposite Party No.2.  The Complainant on 08.02.2006 remitted the advance Income Tax through Opposite Party No.2 Bank vide Cheque No.746266, drawn on State Bank of Mysore, HRBR Layout Branch, Bengaluru.  The Opposite Party No.2 remitting the said advance Tax to the Income Tax Department to the Head of Account No.0021 wrongly remitted to the Head of Account No.0023 which is Hotel receipt.  Due to this mistake the advance tax has not been remitted and as a result the Complainant is not able to claim refund of the Income Tax.  To decide this complaint the Income Tax Department is not a necessary and proper party.  Even in the absence of Income Tax Department this complaint can be decided efficaciously.  On the other hand, the Opposite Party No.1 being the Head Office is of Opposite Party No.2 the Opposite Party No.1 is a necessary and proper party.  Hence this point is held in Negative. 
9. POINT NO.2:-   The learned Counsel for the Opposite Parties argued that the complaint is barred by Limitation.  The Complainant has not shown any sufficient ground.  Since the Complainant is claiming the refund of advance Tax for the Assessment Year 2006-07.  After lapse of 10 Years, the Complainant filed this complaint, thereby this complaint is barred by Time.
10.  On the other hand, the learned Counsel for the Complainant argued that the Complaint is in time.  Since the Complainant is entitled for seeking amount of the refund for the subsequent Assessment Years.  However from the Income Tax Department, the refund was not coming through. The Complainant has approached his Chartered Accountant and addressed a letter to the Income Tax Officer, on 11.09.2013 and his letter 28.10.2014.  The cause of action to file this complaint arises on 28.10.2014 within 2 years from 28.10.2014 this complaint is filed, thereby the complaint is still in time and it is barred by time. 

11. With this argument and on perusal of record, the Complainant filed this complaint on 21.09.2016 in the complaint, the Complainant clearly mentioned that he is entitled for refund of Income Tax for the subsequent Assessment Years. However, from the Income Tax Department, the refund was not coming through.  For that reason, the Complainant approached his Chartered Accountant and addressed a letter to the Income Tax Officer Circle 6(1), Bengaluru, vide Letter dt.11.09.2013 and also Letter dt.28.10.2014, regarding the cause of action i.e., from 11.09.2013 and also dt.28.10.2014 and within 2 years from 28.10.2014 i.e., on 21.09.2016 the Complainant filed this complaint, thereby the complaint is within time and it is not barred by time.  Thereby, it is proper to accept the argument put forth by the learned Counsel for the Opposite Parties that the complaint is barred by time.  Hence, this point is ‘No’.

12. POINT NO.3:-  As looking into the averments made in the complaint and also the version filed by the Opposite Parties, it is not in dispute that the Complainant remitted his advance Income Tax through Opposite Party No.2 vide cheque No.746266, dt.08.02.2006, drawn on State Bank of Mysore, HRBR Layout Branch, Bengaluru.  Further to substantiate this, the Complainant in his sworn testimony, he has reiterated the same and produced the Tax Counter Foil.  As looking into this document, it is very clear that on 08.02.2006 the Complainant remitted Rs.85,000/- towards the advance Income Tax for the Assessment Year 2006-07 through cheque bearing No.746266 drawn on S.B.M.  Thereby, it is proper to accept the contention of the Complainant.

13. It is further case of the Complainant that the Complainant is entitled for seeking amount of refund for the subsequent Assessment years.  However from the Income Tax Department, the refund was not coming through.  The Complainant approached his Chartered Accountant and addressed a letter to the Income Tax Officer, Circle 6(1), Bengaluru, vide letter dt.11.09.2013, by his Chartered Accountant and also letter dt.28.10.2014.  In order to substantiate this, the Complainant in his sworn testimony, he has reiterated the same and produced the Letter dt.11.09.2013.  This letter is addressed by the Chartered Accountant Sri.A.N.Shetty and Associates to the Income Tax Officer, Circle-6(1), Bangalore with regarding the rectification for the Assessment Year 2009-10 in the case of Sri.Hassan Cheluvaiyengar Mohan and requesting for refund of Rs.4,335/- and also letter dt.28.10.2014 addressed by the Complainant to the Assistant Commissioner of Income Tax, Circle-6(1), Bangalore requesting for rectification of the Assessment Year 2012-13 and 2013-14, it clearly goes to show that the Complainant is entitled for refund of Income Tax but the same is not refunded. 
14. The Opposite Party No.1 in their version denied this fact, this evidence of the Complainant has not been challenged and to discard the evidence of the Complainant have not placed any recital evidence.    Therefore, it is proper to accept the contention of the Complainant that the Complainant is entitled for refund of Income Tax.  For That the Complainant approached his Chartered Accountant and addressed a letter to the Income Tax Officer Circle 6(1), Bengaluru.
15. It is further case of the Complainant that the Complainant after innumerable complaints and meeting, the officers of the concerned with the Income Tax Department for quite a number years, now in the Month of January 2016, it has come to the notice of the Complainant that the advance Tax paid on 08.02.2006 for a sum of Rs.85,000/- for the Assessment Year 2006-07 was not received by the Income Tax Department and therefore, the Income Tax refund being adjusted for the refund of the subsequent years for the income Tax due to the Year 2006-07 and also interest.  After the Complainant came to know about the non-receipt of the advance income tax for the Assessment year 2006-07 for a sum of Rs.85,000/-was surprised and immediately the Complainant brought to the notice of the Corporation Bank, vide letter dt.22.01.2016 for non-remittance of advance Tax for the Assessment Year 2006-07 remitted by him through Cheque drawn on State Bank of Mysuru.  However, the Opposite Party No.2 checked their accounts and on scrutiny, it has come to the notice of the Opposite Party No.2 that this said amount remitted towards advance Tax for the assessment Year 2006-07 has been remitted to the Head of Account No.0023 which pertains to Hotel receipts, instead of Head of Account No.0021 which pertains to the Income Tax.  In order to substantiate this, the Complainant in his sworn testimony, he has reiterated the same and produced a letter dt.22.01.2016 addressed by the Complainant to the Manager of Opposite Party No.2.  In this letter, he clearly mentioned that regarding the non-remittance of Advance Tax paid to Income Tax Department for Assessment Year 2006-07 and also produced the Computer Generated Receipt.  As looking into this, the Computer Generated Receipt issued by the Corporation Bank i.e., Opposite Party No.2.  By looking into this document, it clear that the Complainant remitted the advance Income Tax for a sum of Rs.85,000/-through cheque bearing No.746266 and the said cheque was remitted by the Opposite Party No.2 to the Head of Account No.0023 hotel receipts but not for Income Tax Department.  Even this fact is admitted by the Opposite Parties in their version and taken a defence that the said mistake is not the human error is due to oversight but not intentional.  So even from the admission it is clear that the Opposite Party No.2 has not remitted the sum of Rs.85,000/- advance tax which was paid by the Complainant through cheque bearing No.746266 instead of remitting the said amount.  The Income Tax Head is 0021 they wrongly remitted to the Head of Account 0023 i.e., Hotel receipts.  This act of the Opposite Party No.2 is clearly shows that there is negligence and it is purely on the negligence act.  This evidence has not been challenged by the Opposite Parties and it is proper to accept the contention of the Complainant. 

16. Under Section-2G defines "deficiency" means any fault, imperfection, shortcoming or inade­quacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force.  So by reading of this definition, it is very clear any fault.  In the present case, the Opposite Party No.2 committed fault by remitting the advance Income Tax of the Complainant to the Income Tax Head of Account 0021 but wrongly remitted to the Head of Account No.0023, thereby committed the fault.  Thereby this clearly amounts to deficiency of service on the part of the Opposite Parties.  The Opposite Party No.1 being the Head Office also liable for the wrong act committed by the Opposite Party No.2.  Hence, this point is held in the Affirmative. 
17. POINT NO.4:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The Complaint is allowed holding that there is deficiency of service by the Opposite Party No.1 & 2.

The Opposite Party No.1 & 2 are directed to refund a sum of Rs.85,000/- to the Complainant.

The Opposite Party No.1 & 2 are directed to pay compensation of Rs.25,000/- for causing mental agony.

The Opposite Party No.1 & 2 are liable to pay sum of Rs.5,000/- as cost.

The Opposite Party No.1 & 2 are directed to pay the aforesaid amount within 30 days.  Failing which the aforesaid amount will carry interest at 12% from the date of order, till the date of payment. 

Supply free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 25^th day of September 2017)

        MEMBER                                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.H.C.Mohan, who being Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Tax Payer Counter Foil dt.20.06.2007
2. Letter dt.11.09,2013, 28.10.2014, 22.01.2016, 25.04.2016, 11.05.2016 and 22.01.2016, 08.06.2016, 23.08.2016, 02.09.2016, 14.09.2016 and 08.11.2016.
3. Computer Generated Receipt issued by the Bank
4. Letter issued by the Resource Mobilisation Department dt.11.05.2016
5. Letter of Customer Service Division dt.06.06.2016
6. Email correspondences dt.17.02.2016, 13.05.2016, 26.05.2016, 27.05.2016, 30.05.2016, 01.06.2016,
7. Postal Acknowledgement dt.14.06.2016.
8. Challan format dt.18.02.2016

Witness examined on behalf of the Opposite Parties:

1. Sri.R.Devaraj, Chief Manager of Opposite Party No.1 & 2 has filed his affidavit

List of documents filed by the Opposite Party:

1. Copy of the Power of Attorney
2. Copy of Personnel Administration Division dt.01.08.2003
3. Copy of Category ‘c’

       MEMBER                                                                               PRESIDENT