Petitioner's refund claim of TDS depends on providing original TDS certificates; court mandates reconsideration.

JUDGMENT

The petitioner is a registered dealer under the provisions of the Kerala Value Added Tax Act with TIN No.32072049314 and is an electrical contractor who carried out several works during the assessment year 2015-2016, based on the contract entered into between the petitioner and the respective clients. Some of the major clients were the additional 3^rd and 4^th respondents, the KSEB Ltd and Lakeshore Hospital & Research Centre Ltd. The payment of the amounts from the additional respondents 3 and 4 were made to the petitioner after deducting the TDS and according to the petitioner, the said amounts are already deposited with the State in the relevant account.

2. The petitioner submitted returns pertaining to the said assessment year and refund of the amount of TDS was also claimed. Ext.P2 application was also submitted seeking refund of the amount. Ext.P3 is the order passed on on the application, in which the claim of refund in respect of the amount covered by the TDS certificates, based on the works the petitioner had carried out with the 3^rd and 4^th respondents, was rejected on the ground that the petitioner failed to produce the original TDS certificates in Form 20F issued by the awarders. It was observed in Ext.P3 order that, the TDS certificates in Form 20F of Deputy Chief Engineer, KSEB Ltd filed by the petitioner was only the copies and the petitioner was required to furnish the original certificates. It was also stated in Ext.P3 that, even though several opportunities were granted to the petitioner to produce the said documents and extended the opportunity of personal hearing on various occasions, the petitioner did not avail the said opportunities. Therefore, the claim as such was rejected. It was also observed that, since the awarder has remitted this tax as advance tax, in the absence of signed original of Form 20F, it is not possible to ascertain the aforementioned TDS remittance on behalf of the assessee, the petitioner herein. The fate of the TDS in respect of the payment effected by the 4^th respondent was also the same. For the same reason the said claim was also rejected. This writ petition is submitted challenging Ext.P3 order.

3. In the writ petition, the petitioner places reliance upon Ext.P4, which is a communication issued by the State Tax Officer Officer, First Circle, Ernakulam addressed to the Deputy Commissioner, Works Contract, Ernakulam, wherein, the details of the remittance of the amount by the KSEB Ltd pertaining to the assessment years 214-2015 to 217-2018 are referred to. According to the petitioner, the amount claimed by the petitioner is included in Ext.P4. As regards the claim in respect of the TDS remittance made by the 4^th respondent, the petitioner places reliance upon Ext.P5. which is a communication issued by the 4^th respondent to the petitioner, that contains the dates of remittances as well as the chalan details.

4. The petitioner also produced Ext.P6 series, which are the copies of Form 20F in respect of the aforesaid transactions. The said documents are produced along with I.A No. 1/2024. The reliefs are sought by the petitioner in this writ petition based on the aforesaid averments and documents.

5. A counter affidavit is submitted by the 1^st respondent, wherein, they have disputed the claims of the petitioner. The findings in Ext.P3 assessment order are reiterated in the counter affidavit. As regards Ext.P6 series documents, it is submitted that, the advance tax e-chalans were verified but they could not ascertain whether payment is made against the sub contractor/petitioner, as the payment was made by the awarder as advance tax. It was also averred that the awarder’s