Adv. For the Complainant : - Sri Swarna Bhusan Sahu & Sri Jagdish  Kumar Pradhan

Adv. For OPS                       :-   Sri Asit  Kumar Sarangi

Date  of filing of the Case :- 10.11.2022

Date of Order                      :-    28.03.2024

JUDGMENT

The  fact of the case in nutshell :-

1.  The complainant is a bonafide customer of UCO, Bank, Bolangir Branch having S.B. A/C. no 07270100002411 who is OP No.1 in this case. Withoutany intimation, communication or obtaining consent from the complainant     on dt. 04.01.2021 OP No.1 transmitted an amount of Rs.2,10,285.04 paisa( Rupees Two Lakhs Ten Thousand Two Hundred eighty Five and Four paisa Only) from the account of the complainant illegally and unauthorisedly. Being the custodian of the account his limited Job is to maintain the account properly he has no locostandy to acted beyond the guide line issued by the Head of the institution from time to time as envisaged under the prescribed provisions of law with constitutional order entrusted to the financial institution . the OP no.1 u/s 79 ( Recovery of tax) under the CGST Act 2017 has been issued with a letter to freeze the account and not beyond the OP no.1 hurriedly deducted an amount of Rs.2,10,285.04 Paisa from the account of the complainant on dt.04.01.2021. The complainant came to know the act of OP no.1 by received a letter issued from the Tax authority communicated to him vide memo No. 898 dt.31.12.2020 which was received by the complainant on 05/01/2021. The tax officer CGST not only freeze the account credited in the bank of OP no.1 but also freezed other accounts of the complainant credited in different Banks, but non of the bank have deducted any amount from the accounts of the complainant and transmitted any amount of Tax Authority Concerned. But the Op no.1 without due consultation or obtaining consent from the complainant by exercising his extra power to which he is not entitled have deducted the amount from the account of the complainant which proves his overt act without basing upon any information from the head office . Hence this case.

2.  To substantiate his case the complainant relied on the following documents.

1. Self attested photocopy of the passbook bearing S.B A/C no 07270100002411 of UCO, Bank , Bolangir Branch.
2. Self attested photocopy of account statement issued by the UCO, bank Bolangir Branch.    
   1.  
3. Photocopy of pleader notice served upon the OP parties on dt. 10.10.2022.
4. Self attested photocopy of postal delivery track receipt.

3.    Having  gone through the complaint it’s accompanied documents and on  

     hearing the complaint prima facie it seemed to be a genuine case hence   

     admitted and notice to the Ops were served and in response they appeared

      through their councel and filed their written version.

4.  To counter the allegation the rival contention regarding the maintainability of    

     the case for lacking Jurisdiction of the commission. It is also not maintainable 

     for non-Joinder of necessary party. To govt. of Odisha sale Tax officer , Bolangir

    the Op no.1 denied most of the allegation made by the complainant OP no.1

     stated he has acted upon the instruction of the letter vide the letter   

     Dt.18.02.2020 of the sale tax officer Bolangir. Op no. 1 has not committed any  

     irregularity in operating the account t of the complainant without crossing the   

    boundry and guideline rather Op no.1 acted accordingly as per the attachment

    order from the sale tax Officer, Bolangir vide letter no. 897 (18) dt. 31.12.2020

    for attachment of the account of the complainant of account and to recover an

   amount of rs.6,63,440.32 Paisa if Op no.1 will fail to make payment in pursuance 

   of this notice  he shall be personally liable to the State , Central  government u/s

   79 of the CGST Act with Tax cess , interest and penalty as such the OP no.1

    exempt from liability and not liable to pay any compensation claim by the

   Complainant.

5.  Before adjudicating the case in hand it emerges three issue for consideration and for the Just decision of the case. The issues are as follows.

   (i)  whether the case is non- maintainable before this commission for lacking of Jurisdiction and non- Joinder of necessary party.

  (ii)  whether the CGST was defaulted by the complainant or it is the arbitrary act of Op no.1

(iii)  whether the complainant able to prove his case beyond any reasonable doubt to March towards compensation.    

  Regarding issue no. 1 it is pertinent to mention here that CP Act 2019 is a special act which is benevolent in nature , CP Act 2019 expand it’s door and open to the litigant in addition Sec 100 of C.P. Act 2019 speaks “ The provision of this act shall be in addition to and not in derogation of the provisions of any other law for the time being in force” As such this commission not lacking the Jurisdiction to adjudicate this case. Regarding the non- Joinder of necessary party the court can add the necessary party somoto as the commission feels the same. A case cannot be dismissed  for non- Joinder of necessary party as this is a special act for the interest of the consumers it is maintainable issue no.1 answered accordingly.

         In issue no. 2 it is found on the record that the CGST is old one for the year 2018-2019 and the situation of attachment of account presume that the complainant is the defaulter in payment of CGST which amounts to Rs. 6,63,440.32 Paisa for which the tax officer bound to take such a drastic step to freez the account of the complainant . According to the complainant he came to know the deduction of tax on dt.6. 12.2022 when after receiving of the Statement of account but there are more than 12 transaction happened and the complainant is not aware of the status of his account after one year and nine month is a question mark. It is crystal clear that the act done by Op no.1 is in accordance with the notice of the tax office CGST Bolangir and not arbitrary.

         Before entering to issue no 3 it is better to have a bare idea about the Sec 79 of CGST Act 2017. 79 of CGST Act says (Recovery of Tax).

1. Where any amount payable by a person to the government under any of the provisions of this Act or the rules made there under is not paid the proper officer shall proceed to recover the amount by one or more of the following modes, namely :-

1. The proper officer may deduct or may require any other specified officer to deduct the amount so payable from any money owing to such person which may be under the control of the proper officer or such other specified officer.            
2.  The proper officer may recover or may require any other specified officer to recover the amount so payable by detaining and selling any goods belonging to such person which are under the control of the proper officer or such other specified officer.
3.   (i)  The proper officer may , by a notice in writing require any other person from whom money is due or may become due to such person or who holds or may subsequently hold money for or on account of such person, to pay to the Government either forthwith upon the money becoming due or being held, or within the time specified in the notice not being before the money becomes due or is held, so much of the money as is sufficient to pay the amount due from such person or the whole of the money when it is equal to or less than that amount.

2. Every person to whom the notice is issued under sub- clause (i) shall be bound to comply with such notice and in particular, where any such notice is issued to a post office, banking company or an insurer , it shall not be necessary to produce any pass book , deposit receipt policy or any other document for the purpose of any entry endorsement or the like being made before payment is made, notwithstanding any rule, practice or requirement to the contrary.

3. In case the person to whom a notice under sub- clause (i) has been issued, fails to make the payment in pursuance thereof to the Government, he shall be deemed to be defaulter in respect of the amount specified in the notice and all the consequences of this Act or the rules made there under shall follow.

    

                    (iv)The Officer issuing a notice under sub-clause (i) may, at any time,     

                    amend or revoke such notice or extend the time for making any            

                   Payment in pursuance of the notice.              

5. Any person making any payment in compliance with a notice issued under sub-clause (i) shall be deemed to have made the payment under the authority of the person in default and such payment being credited to the Government shall be deemed to constitute a good and sufficient discharge of the liability of such person to the person in default to the extent of the amount specified in the receipt.

6. Any person discharging any liability to the person in default after service on him of the notice issued under sub-clause (i) shall be personally liable to the Government to the extent of the liability discharged or the extent of the liability of the person in default for tax, interest and penalty, whichever is less.

7. where a person on whom a notice is served under sub-clause (i) proves to the satisfaction of the officer issuing the notice that the money demanded or any part thereof was not due to the person in default of that he did not hold any money for or on account of the person in default, at the time the notice was served on him , nor is the money demanded or any part thereof, likely to become due to the said person or be held of or on account of such person, nothing contained in this section shall be deemed to require the person on whom the notice has been served to pay to the Government any such money or part thereof.

4. The proper officer may, in accordance with the rules to be made in this behalf, distrain any movable or immovable property belonging to or under the control of such person , and detain the same until the amount payable is paid , and in case, any part of the said amount payable or of the cost of the distress or keeping of the property, remains unpaid for a period of thirty days next after any such distress, may cause the said property to be sold and with the proceeds of such     sale, may satisfy the amount payable and the costs including cost of sale remaining unpaid and shall render the surplus amount, if any, to such person.

(v) The proper officer may prepare a certificate signed by him specifying the amount due from such person and send it to the collector of the district in which such person owns any property or resides or carries on his business or to any officer authorized by the Government and the said collector or the said officer, on receipt of such certificate, shall proceed to recover from such person the amount specified there under as if it were an arrear of land revenue.

(f) Notwithstanding anything contained in the code of Criminal procedure, 1973, the proper officer may file an application to the appropriate Magistrate and such Magistrate shall proceed to recover from such person the amount specified there under if it were a fine imposed by him.

(2)Where the terms of any bond or other instrument executed under this Act or any rules or regulations made there under provide that any amount due under such instrument may be recovered in the manner laid down in sub-section (i), the amount may, without prejudice to any other mode of recovery, be recovered in accordance with the provisions of that sub-section.

(3)Where any amount of tax, interest or penalty is payable by a person to the Government under any of the provisions of this Act or the rules made there under and which remains unpaid, the proper officer of State tax or Union territory tax, during the course of recovery of said tax arrears, may recover the amount from the said person as if it were an arrear of State tax or Union territory tax and credit the amount so recovered to the account of the Government.

(4)Where the amount recovered under sub-section (3) is less than the amount due to the Central Government and State Government, the amount to be credited to the account of the respective Government shall be in proportion to the amount due to each such Government.     

The fact of the case in hand is that the state tax office Bolangir has issued a letter to the OP no.1 for attachment of account of the complainant under sec 79 (1) (2) under provision of CGST/SGST for non compliance of the order by the complainant for the period of 2018-19 accordingly the sale tax officer directed the Op no.1 vide letter no. 897(18) dt 31.12.2020 for attachment of an amount of Rs. 6,63,440.32 Paisa from the account of the complainant maintained with Op no.1 and after deduction of the amount deposited the same with state tax office Bolangir subject to if the direction of the state tax officer , Bolangir shall not be carried out the Op no.1 is personally liable to pay the entire amount with tax , cess, interest and penalty over the specified amount to the same. Finding no way with compliance to the letter dt.31.12.2020 the Op no.1 freeze the account of the complainant and deduct Rs.2, 10,285. 04 Paisa on dt.04.01.2021. The Op no.1 discharge liability as per the direction of the Government. After freezing the account and before deduction the Op no.1 should have hold the amount in the account and communicate to the complainant about the seriousness of the matter through message. It is the duty of the bank to inform the customer in operating his account but the Op no.1 failed to do so. No document has been found on the record regarding any message communication before deduction. Op no.1 failed to produce or adduce any document for such communication to the complainant . The R.B.I guideline says that the bank is the security holder and the safe custodian of the heard earned money of the customer any authorized or unauthorized transaction should be communicate to the customer through active messages. No doubt the Op no.1 cannot meet the entire amount of CGST as claimed by the Tax officer failing in communication to the customer of a Bank amounts to deficiency in service.

    More over the complainant in his written argument states that he has as much as six accounts in different banks including UCO bank Bolangir namely S.B.I Main Branch , SBI ADB Bolangir (3) Punjab national bank Bolangir ,(4) Axis bank Bolangir and Co- operative Bank Bolangir . But not whisper a single word about the balance in that Banks but take a plea that all the Bank silent except UCO Bank    

only comply the notice all other Bank though received the notice u/s 79 (i) did not operate. But failed to produce any related document or certified copy of notice received by the other Banks. The complainant also not whisper a single word in his complaint petition about the rest amount of Rs.6, 63,440.32 Paisa after deduction of Rs.2,10,285.04 Paisa by Op no.1 so the act of the Banks escapes which create doubts.

However it is the duty of the bank to comply the direction of the Government to retain the spirit of the statute regarding collection of tax where the Nationalized Banks has main role to comply the statutory provisions. As well as the duty towards the valuable customers to communicate any information regarding his account in operation, where the Op no.1 failed to do so , as such we are of the view that the complaint is allowed with the following directions.

ORDER

OP no.1 is directed to pay a sum of Rs.1000/- @ 9% interest P.A towards deficiency in service and Rs.1000/- towards litigation expenses within one month from the date of order.

    Further Op no.1 is directed to pay a sum of Rs.10, 000/- in the consumer welfare a/c of the commission Bolangir for public awareness within one month from the date of order failing which the entire amount should be paid by Op no.1 @ 18 % interest from the date of filing of the case till realization.

No award as to cost.

PRONOUNCED IN THE OPEN COMMISSION TODAY I.E DATED  28^th   DAY OF March ’2024