Madras High Court
Hardy Exploration & Production (India) ... vs Samson Maritime Limited on 15 December, 2020
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.12.2020
CORAM :
THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR
Application No. 1880 of 2020
in
Execution Petition Nos. 11 & 12 of 2017
Hardy Exploration & Production (India) Inc.
Having office at
5th floor, Westminister Building
108, Dr.Radhakrishnan Salai,
Chennai 600 004. ... Applicant
Versus
1. Samson Maritime Limited
having its registered office at
7 MB, P.T.Building,
Malet Bunder, Mumbai 400 009
rep. By its authorities signatory
Kunal Trivedi.
2. Kotak Mahindra Bank
185, Near TVS Mount Road Branch,
Anna Salai, Chennai 600 006.
3. State Bank of India
Egmore Branch,
Egmore, Chennai 600 008. ... Respondents
http://www.judis.nic.in
2
Application under Order 14 Rule 8 read with Section 151 of CPC r/w
order 21 Rule 1 of CPC.
For Applicant : Mr.Srinath Sridevan
for Mr.Rajmakesh
For Respondents : Mr.P.Giridharan for R1
R3 – discharged from this case
vide order dated 16.10.2020
Mr.Karthik Ranganathan
for Income Tax Department
ORDER
The applicant herein, who is the first respondent/judgment debtor in Execution Petition Nos. 11 & 12 of 2017, has filed this application under Order 14 Rule 8 read with Section 151 of CPC r/w order 21 Rule 1 of CPC praying to permit the applicant to deposit a sum of Rs.11,63,78,365/- (Rupees Eleven Crores Sixty Three Lakhs Seventy Eight Thousand Three Hundred and Sixty Five Only) to this Court to the credit of E.P.No.11 of 2017 in full satisfaction of the Arbitral Award dated 25.08.2015 and supplementary Award dated 25.10.2015 which is the subject matter of E.P.Nos.11 and 12 of 2017.
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2. This application has been pending with regard to the quantum of percentage of the TDS to be remitted by the applicant/judgment debtor for a sum of Rs.11,63,78,365/- and the amount has been already deposited by the applicant/judgment debtor. This has been recorded by this Court on 16.10.2020. On 16.10.2020 this Court has framed the following issues.
“1. Whether the decree amount or the Arbitral Award amount is liable to be taxed?
2. Whether TDS has to be remitted for the Taxable amount?
3. If TDS is permitted, at what extent it should be remitted, whether 30% of 10% + 2%?”
3. Today the Income Tax Department has filed an affidavit to the effect that total TDS payable comes around Rs.4,06,89,809/- out of which Rs.65,59,525/- has already been deducted and deposited with the Income Tax Department and the balance amount of Rs.3,41,30,284/- has to be paid to the income tax department. Whereas it is the contention of the learned counsel appearing for the decree holder/1st respondent that only a sum of Rs.76,31,050/- to be paid by them, the disputed remaining amount has to be released to the decree holder.
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4. Mr.Karthik Ranganathan, learned counsel appearing for the Income Tax Department has not disputed to release the remaining amount other than Rs.3,41,30,284/-. The only contention is that Rs.3,41,30,284/- has to be released to the department and the nature of the tax payable or deducted cannot be decided by this Court and it has to be decided only by the Assessing Officer and in respect of which Assessee has to file necessary returns. If Assessing Officer comes to the conclusion that the amount released to the department is excess then the Assessing Officer shall refund the amount with interest. Hence it is his contention that Rs.3,41,30,284/- has to be released to the department.
5. The Income Tax Department has filed an affidavit as to the nature of the tax payable to them, this Court is of the view that in this Execution Petitions this Court cannot assume the role of Assessing Officer to find out the nature of percentage of the TDS to be paid by the Decree holder, which will fall within the domain of the Assessing Officer to decide. It is also relevant to note that all the proceedings before the income tax Assessing Officer deem to be judicial proceedings under Section 136 of the Income Tax Act. In such view of the matter only the Assessing Officer has to decide http://www.judis.nic.in 5 what is the nature of the amount and tax to be paid in this amount, accordingly Rs.3,41,30,284/- has to be released to the Income Tax Department and the Department has to take a call on this and the assessee can file a return and claim excess amount if any as per law.
6. In such view of the matter, this Court orders a sum of Rs.3,41,30,284/- to be released to the Income Tax Department and remaining entire amount lying before this Court in the credit of the Execution Petitions has to be released to the decree holder namely the respondent herein. It is open to the assessee to establish his right before the Assessing Officer and in the event of the amount returned to the Department is found to be in excess, then the assessee is entitled to refund the amount with interest.
7. The amount deposited by way of Demand Draft drawn at Kotak Mahindra Bank, Mount Road Branch has not been deposited in any of the Fixed Deposit, such view of the matter Registry is directed to en-cash the Demand Draft and pay a sum of Rs.3,41,30,284/- to the Income Tax Department account in favour of The Deputy Commissioner of Income Tax, http://www.judis.nic.in 6 TDS-Circle-1 (1), Chennai and remaining amount shall be paid to the 1st respondent/decree holder. With the above observation this Application No.1880 of 2020 is closed. Consequently, the Election Petition Nos.11 & 12 of 2017 is closed. No costs. Consequently, connected applications are also closed.
15.12.2020 Index:Yes/No Internet:Yes/No dpq http://www.judis.nic.in 7 N. SATHISH KUMAR, J.
dpq To The Sub Assistant Registrar, Original Side, High Court, Madras.
Original Application No. 1880 of 2020 in Execution Petition Nos. 11 & 12 of 2017 15.12.2020 http://www.judis.nic.in