State Consumer Disputes Redressal Commission
State Bank Of Hyderabad vs Shivaji Ganesh Bapat on 23 April, 2014
1 F.A. No. 639-11
MAHARASTHRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION, MUMBAI, CIRCUIT
BENCH AT AURANGABAD.
Date of filing : 13.12.2011
Date of Order:
23.04.2014
IN FIRST APPEAL NO. 639 OF 2011
IN COMPLAINT CASE NO. 728 OF 2010
DISTRICT CONSUMER FORUM: AURANGABAD.
State Bank Of Hyderabad
Chikalthana Branch,
Aurangabad. ... Appellant
VERSUS
Shivaji Ganesh Bapat
R/o. Bapatwadi,
New Osmanpura,
Aurangabad. ... Respondent
Coram : Shri. S.M. Shembole, Hon`ble Presiding Judicial Member.
Shri. K. B. Gawali, Hon'ble Member.
Present: Adv. Shri. Ruturaj Patil for appellant.
Adv. Shri. Dabholkar for respondent.
- :: ORAL JUDGMENT :: -
(Delivered on 23 rd April, 2014) Per Shri. S.M. Shembole, Hon`ble Presiding Judicial Member
1. This appeal is directed against the judgment and order dated 29.09.2011 passed by District Consumer Forum, Aurangabad partly allowing consumer complaint No.728/2008 directing appellant/opponent bank to pay to respondent/complainant amount Rs.9108/- towards interest for delaying payment and amount Rs.26,358/- for wrongly deduction of TDS with interest @ 9% and further compensation Rs.2000/- for causing mental agony and Rs.2000/- more towards cost of the proceeding. (for the sake of brevity the appellant is hereinafter referred as the "opponent bank" and respondent as the "complainant") 2
2. Brief facts giving rise to this appeal are that, on 30.08.2002 the complainant had deposited amount Rs.14,00,000/- and Rs.10,00,000/- on 09.04.2003 as fixed deposit under Tax Saving Capital Gain Scheme. The complainant had also having cash credit loan account with the opponent bank. Fix Deposit (F.D.) for the amount of Rs.14,00,000/- was matured on 30.11.2009 and the F.D. of other amounts was on 09.04.2010. After the date of maturity of FD's the complainant requested the opponent bank to transfer the amount of F.D. to his account but despite the repeated requests of the complainant the opponent bank did not transfer and credit the amount of F.D. in his account. The opponent bank avoided to transfer the amount of F.D. in the account of complainant under the pretext that the complainant was to furnish security for the cash credit loan of Rs.20,000/- which was obtained by him from the opponent bank, though the complainant had already deposited amount of Rs.10,00,000/- towards security to the cash credit loan. It is submitted by the complainant that the opponent bank had no right to retain his amount of FD's after the date of maturity but it has illegally retained and thereby caused 27 days delay in payment of amount of F.D. Therefore he has claimed interest for 27 days period.
3. Moreover, it is alleged by the complainant that though the opponent bank has paid the amount of F.D. it has wrongly deducted amount Rs.16,948/- towards TDS from the amount of F.D. Rs.14,00,000/- and TDS Rs.4,705/- from the F.D. of Rs.5,00,000/- each. Therefore alleging deficiency in service on the part of appellant bank the complainant has filed consumer complaint claiming outstanding amount against FD's and amount of interest for delayed payment and compensation Rs.2,00,000/- sustaining loss in the business and Rs.25,000/- more towards cost of the proceeding.
4. The opponent bank by its written version contested the complaint on the following among other grounds:-
3 F.A. No. 639-11It did not dispute that the complainant had made fixed deposits with it initially for Rs.14,00,000/- on 30.08.2002 and thereafter Rs.10,00,000/- on 09.04.2003. It is also not disputed that the complainant had obtained cash credit loan facility and he had deposited amount Rs.20,00,000/- towards security for the cash credit loan amount. The dates of maturity of the FD's are also not disputed. It is also not disputed that there was delay in payment. However, it is submitted that it has already paid the amount of interest on account of 26 days delay etc. It is also not disputed that while making the payment of F.D. it has deducted the amount towards TDS. However, it is denied that it has illegally deducted amount of TDS. It is submitted that as per the Rules and Regulations and procedure it has rightly deducted the amount of TDS and some is remitted to the Income Tax Department. It is submitted that the complainant can claim the refund of the amount of TDS from Income Tax Department. It has denied all other adverse averments made by the complainant and submitted to dismiss the complaint.
5. On hearing both sides and considering the evidence on record the District Consumer Forum has partly allowed the complainant's claim as noted above.
6. Feeling aggrieved by that judgment and order the opponent bank came to this Commission in appeal.
7. We heard the learned counsel for both side and perused the written notes of arguments submitted by them. We have also perused the copy of impugned judgment and order, copies of complaint, written version, FD's certificate, then notices and copy of letter dated 18.08.2010 issued by Branch Manager of opponent to the complainant.
8. Almost all the facts except the deduction of amount towards TDS are not disputed. It is also fairly conceded by Shri. Ruturaj Patil, learned counsel for the opponent bank that there was 27 days delay in payment of amount of F.D.'s to the complainant and therefore the opponent bank is 4 liable to pay the amount of interest to the complainant and accordingly the District Consumer Forum has rightly directed the opponent bank to pay to the complainant amount of interest Rs.9108/- with interest @ 9 % p.a. w.e.f. 26.09.2009 therefore the opponent bank is ready to comply the same. However, he has denied that the opponent bank has illegally deducted amount towards TDS.
9. As against the arguments of Mr. Ruturaj Patil, learned counsel for the opponent bank, Mr. Dabholkar, learned counsel appearing for the complainant submitted that when undisputedly the complainant deposited the amount of FD under Tax Saving Capital Gain Scheme, the complainant is not entitled to pay the income tax on such amount or amount of interest on it and therefore it was not necessary for the opponent bank to deduct any amount towards TDS. But the opponent bank has illegally deducted it. Therefore opponent bank is liable to pay the same amount which is deducted towards TDS to the complainant. Therefore the crux in this matter is as to whether the opponent bank is liable to pay the amount of TDS to the complainant as claimed or not.
10. Mr. Ruturaj Patil, learned counsel appearing for the opponent bank submitted that as per the procedure and the banking rules the opponent bank has rightly and legally deducted the amount of TDS and remitted the same to the income tax department. However the then Branch Manager of the opponent bank inadvertently issued letter dated 18.08.2010 informing the complainant that amount of Rs.16,948/- was erroneously deducted towards TDS and same is remitted to the Income Tax Department. It is further informed that the bank has taken up the matter with the Income Tax Department for refund through Income Tax Consultant etc. But we find little force in the submission of Mr. Ruturaj Patil, learned counsel for the opponent bank. Firstly, because when the investment was made by the complainant under "Tax Saving Capital Gain Scheme", we have no hesitation to accept the contention of complainant that he is not liable for any tax on the amount of FD's as well as amount of interest. Secondly, if the opponent bank would have legally deducted the 5 F.A. No. 639-11 amount towards TDS, the then Manager of the opponent bank would not have issued letter dated 18.08.2010 informing the complainant that amount of Rs.16,948/- towards TDS was erroneously deducted and it is remitted to the Income Tax Department. Therefore the complainant's claim for refund of the amount of TDS cannot be disputed.
11. However since undisputedly the amount of TDS is already remitted to the Income Tax Department and the opponent bank has issued certificate to the Chartered Accountant of the complainant so as to claim the refund of same amount from the Income Tax Department, in our view, complainant can claim the refund of same TDS amount from the Income Tax Department. Since the amount of TDS is already remitted to the Income Tax Department in the name of complainant itself, the opponent bank cannot claim the same amount so as to enable it to pay the complainant.
12. Mr. Dabholkar, learned counsel appearing for the complainant also fairly conceded that the complainant can claim the refund of the amount of TDS from Income Tax Department. But according to him since the opponent bank has erroneously deducted the amount towards TDS, it is liable to pay it to the complainant and accordingly the District Consumer Forum has rightly held. But we find little force in the submission of Mr. Dabholkar. Because as pointed above when the opponent bank is not entitled to claim refund of the amount of TDS from Income Tax Department and secondly, when there could be no difficulty for the complainant to claim refund for the same amount from the Income Tax Department, in our view it would not be just and proper to direct the opponent bank to pay the amount of TDS to the complainant without receiving it from the Income Tax Department.
12. Mr. Dabholkar, learned counsel for the complainant has submitted that he is not aware if the complainant has claimed refund of amount of TDS in his IT returns. If the complainant has already claimed refund of the amount of TDS in his IT returns, he cannot claim the same amount 6 form the opponent bank, though the opponent bank has rightly or wrongly deducted the amount as TDS from the amount of FD's. Only because the opponent bank committed error in deducting the amount of TDS; the complainant cannot take benefit of the same. However, the complainant can claim compensation for committing such deficiency in service. Therefore the District Consumer Forum has already awarded compensation Rs.2000/- for causing mental agony to the complainant due to deficiency in service.
13. Further it appears from the copies of impugned judgment and order that the District Consumer Forum without appreciating the undisputed facts properly; wrongly directed the opponent bank to pay the amount of TDS to the complainant though the same amount is already remitted by the opponent bank to the Income Tax Department. Such erroneous order cannot be sustained.
14. For the foregoing reasons the appeal deserves to be partly allowed by setting aside the impugned order pertaining to the refund of the amount of TDS only. Hence, the following order.
-:: ORDER ::-
1. The appeal is partly allowed and order directing the opponent bank to repay the amount of TDS Rs.16,948/- with interest is set aside.
2. Rest of the impugned order is maintained.
(K. B. Gawali) (S.M. Shembole)
Member Presiding Judicial Member
Kalyankar