Kerala High Court
Thachy vs The District Collector on 14 August, 2013
Author: A.V.Ramakrishna Pillai
Bench: A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
FRIDAY, THE 4TH DAY OF JULY 2014/13TH ASHADHA, 1936
WP(C).No. 11940 of 2014 (N)
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PETITIONERS:
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1. THACHY, AGED 64 YEARS,
W/O.LATE ABOOBACKER M.A, MATTATHIL HOUSE,
THAIKKATTUKARA, ALUVA WEST VILLAGE, ALUVA TALUK,
ERNAKULAM.
2. JAMAL M.A, AGED 50 YEARS,
S/O.LATE ABOOBACKER M.A, MATTATHIL HOUSE,
THAIKKATTUKARA, ALUVA WEST VILLAGE, ALUVA TALUK,
ERNAKULAM.
3. MEETHIYANKUNJU, AGED 47,
S/O.LATE ABOOBACKER M.A, MATTATHIL HOUSE,
THAIKKATTUKARA, ALUVA WEST VILLAGE, ALUVA TALUK,
ERNAKULAM.
4. RASHEED, AGED 39 YEARS,
S/O.LATE ABOOBACKER M.A, MATTATHIL HOUSE,
THAIKKATTUKARA, ALUVA WEST VILLAGE, ALUVA TALUK,
ERNAKULAM.
5. AYSHA BEEVI, AGED 43 YEARS,
D/O.LATE ABOOBACKER M.A, MATTATHIL HOUSE,
THAIKKATTUKARA, ALUVA WEST VILLAGE, ALUVA TALUK,
ERNAKULAM.
6. RAMLA SIDIK, AGED 34 YEARS,
D/O.LATE ABOOBACKER M.A, MATTATHIL HOUSE,
THAIKKATTUKARA, ALUVA WEST VILLAGE, ALUVA TALUK,
ERNAKULAM.
7. SALIM, AGED 35 YEARS,
S/O.LATE ABOOBACKER M.A, MATTATHIL HOUSE,
THAIKKATTUKARA, ALUVA WEST VILLAGE, ALUVA TALUK,
ERNAKULAM.
BY ADVS.SMT.M.M.JASMIN,
SRI.SHIRAS ALIYAR.
RESPONDENTS:
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1. THE DISTRICT COLLECTOR,
ERNAKULAM, COLLECTORATE, CIVIL STATION,
KAKKANAD, PIN - 682 030.
Prv.
W.P.(C).NO.11940/2014 - N:
2. SPECIAL TAHSILDAR (L.A) NO.II,
KOCHI RAIL PROJECT, CIVIL STATION, KAKKANAD,
PIN - 682 030.
3. KOCHI METRO RAIL CORPORATION,
REPRESENTED BY ITS MANAGING DIRECTOR, VYTTILA,
ERNAKULAM, PIN - 682 019.
4. THE COMMISSIONER OF INCOME TAX (TDS),
OFFICE OF THE COMMISSIONER OF INCOME TAX, KOCHI,
C.R BUILDINGS, I.S PRESS ROAD, KOCHI - 682 018.
R1 & R2 BY GOVERNMENT PLEADER SRI. SHYSON.P.MANGUZHA,
R3 BY SRI.K.JAJU BABU, SENIOR ADVOCATE,
ADV. SMT.M.U.VIJAYALAKSHMI, S.C,
R4 BY SRI.JOSE JOSEPH, S.C.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 04-07-2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Prv.
W.P.(C).NO.11940/2014 - N:
APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1: COPY OF THE DEATH CERTIFICATE OF M.A. ABOOBACKER
DATED 14.8.2013.
EXHIBIT P2: COPY OF THE CERTIFICATE BEARING NO.H3-4956/13 ISSUED BY THE
TALUK OFFICE, ALUVA DATED 13.03.14.
EXHIBIT P3: COPY OF THE TITLE DEED BEARING NO.998/1981 AN EXTENT
OF 0.1120 ARES OF LAND COMPRISED IN BLOCK NO.34 IN
SY.NO.414/13 OF ALUVA WEST VILLAGE, ALUVA TALUK, ERNAKULAM.
EXHIBIT P4: COPY OF THE TAX RECEIPT OF THE AFORESAID PROPERTY ISSUED
BY THE VILLAGE OFFICER, ALUVA DATED 25.04.14.
EXHIBIT P5: COPY OF THE ENCUMBRANCE CERTIFICATE DATED 05.03.14.
EXHIBIT P6: COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT TO THE
ABOOBACKER M.A DATED 22.11.13.
EXHIBIT P7: COPY OF THE NOTICE BEARING NO.L.A.C NO.72/14 DATED 28.04.14
ISSUED BY 2ND RESPONDENT.
EXHIBIT P8: COPY OF THE JUDGMENT IN W.A. 2243/08 DATED 08.01.09.
EXHIBIT P9: COPY OF THE JUDGMENT IN W.P.(C).568/13 DATED 07.01.13.
RESPONDENTS' EXHIBITS: NIL.
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P.S. TO JUDGE.
Prv.
A.V.RAMAKRISHNA PILLAI, J
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W.P.(C) No.11940 of 2014
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Dated this the 4th day of July, 2014
JUDGMENT
The issue in this case is with respect to the tax deduction at source under Section 194 LA of the Income Tax Act, 1961 on the sale consideration in respect of the property acquired by the Government under negotiated purchase, pursuant to a notification for acquisition.
2. The petitioners are the legal heirs of one late Aboobacker. The first petitioner is his wife and the other petitioners are his children. The deceased Aboobacker was the absolute owner of an extent of 0.1120 ares of land comprised in Block No.34 in Sy.No.414/13 of the Aluva West Village, Aluva Taluk, Ernakulam belonging to deceased Aboobacker. Pursuant to the notification for acquisition of properties for Kochi Metro Rail Yard by the second respondent on 22.11.2013 issued Ext.P6 notice to the petitioners intimating the intention to acquire land covered WPC No.11940/2014 2 by Ext.P3. The district level purchase committee was constituted after Ext.P6 notice for purchasing the land required for the third respondent. Negotiations were made and finally the first respondent offered to purchase the land for a consideration of Rs.1,02,000/- per cent. The land was taken possession and construction activities are going on. Thereafter the second respondent issued a notice bearing LAC No.72/14 directing the petitioners to appear on 7.5.2014 to receive the compensation amount.
3. The grievance of the petitioners is that the first respondent is intending to disburse the sale consideration to the petitioners and other land owners only after deducting 10% of tax deduction at source. It is with this background the petitioners have come up before this Court.
4. Arguments have been heard.
5. A similar writ petition filed as WPC No.11943/2014 was disposed of by a learned Single Judge of this Court on 3rd June 2014 wherein it was observed that the consent on negotiation was obtained after initial WPC No.11940/2014 3 threat of compulsory acquisition and as the land owners came forward to negotiate and agreed upon a price, then element of compulsion decimated and it became a transaction which was mutually agreed upon.
6. It was also observed that the agreed price is not subject to judicial scrutiny which saves the Government from any future liability. Therefore, it was observed that the mere initiation of proceedings under the LA Act and the award having passed under the Act cannot be a sole reason for finding compulsion. Therefore, it cannot be said that merely because an award was passed under Section 22(2) or separate sale deeds have not been executed, the transaction would fall under the net of compulsory acquisition.
7. In this writ petition also, the petitioners have produced Exts.P8 and P9 judgments in which this Court has directed the respondents to disburse the entire sale consideration without deducting any amount from tax under Section 194 LA of the Income Tax Act. Therefore, the deduction of tax at source as stipulated under Section WPC No.11940/2014 4 194LA cannot be allowed to be proceeded with.
Therefore, this writ petition is allowed restraining the revenue officials from making any tax deduction at source under Section 194 LA with respect to the compensation paid to the petitioner. However, this is without prejudice to the liberty to the revenue authorities to deduct such tax under Section 194 IA, wherever applicable.
No costs.
Sd/-A.V.RAMAKRISHNA PILLAI
JUDGE
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P.S.TO JUDGE