MISS PERWIN SULTANA,MEMBER:-
Complaint of deficiency in service arrayed against the Opp.Party due to execess deduction of TDS of the complainant by the Opp.Party.
2. Complaint in nutshell is that complainant is a pension holder and he is getting his pension from the OP-Bank bearing S/B Account No.11388026141. His pension was revised by the A.G.,Odisha,Bhubaneswar w.e.f. January 2006 to June,2011 of Rs.3,94,566.00 and it was credited to S/B Account on dtd. 22..07.11. As per Section-89(1) of the Income Tax Act the above arrear pension amount was for January,2006 to June,2011 and it was not only the income for the year 2011. As such, the said arrear pension amount is to be spread over for the period from January,2006 to June,2011 as per Section-89(1) of the Income Tax Act. To gave the Income tax benefit U/S-89(1) of the I.T.Act the complainant made a representation to the OP-Bank on dtd. 19.03.12 to request the OP-Bank for spreading over the arrear pension amount of Rs.3,94,566.00 for the period from January,2006 to June,2011 but the OP-Bank did not take any action on his representation dtd.19.03.12 and illegally deducted Income Tax amount of Rs.42,341/- on dtd. 30.03.12. For the same, the complainant lodged a complaint against the Opp.party before the Banking Ombudsman,Bhubaneswar and the Banking Ombudsman direct the Opp.party to apportion the arrear pension amount from January,2006 to June,2011 and if the tax amount is less than tax deduction then pay the differential tax alongwith S/B rate of interest within one week from the date of receipt of the order. To comply the order of the Banking Ombudsman the OP-Bank took two months time for final settlement of the refund of the claim of the complainant. But the Banking Ombudsman was not agreed to extent two months time for final settlement for which the OP-Bank engaged Sri Ananga Kumar Sahoo, Advocate & Tax consultant,Kendrapara and instructed him to prepare the spread over statement of the pension amount from January,2006 to June,2011. As per the spread over statement prepared by Sri Sahoo, TaxConsultant the complainant is required to pay only Rs.7597/- as legitimate tax dues and he is entitled to get back Rs.34,744/-. It is also the case of the complainant that inspite of receipt of spread over statement of the complainant the OP-Bank did not take any action, falsely wrote a letter to the complainant for taking a plea to remove the defects. So, the complainant wrote a letter to the OP-Bank on dtd. 25.03.13 and request the Bank to refund of Rs.34,744/- with S/B rate of interest to the complainant within 15 days from the date of receipt of the letter but no effect. At last he made a representation to the Banking Ombudsman,Bhubaneswar on dtd. 15.05.13 request to take necessary action against the Opp.party for disobeying direction of the Banking Ombudsman,Bhubaneswar within stipulated time. But till today the OP-Bank did not take any action to comply the order of Banking Ombudsman,Bhubaneswar in this matter. Further, the case of the complainant that due to illegal deduction of Income Tax of Rs.34,744/- by the OP-Bank the complainant suffered financial hardship and suffered mental agony. Such action of OP-Bank is to be treated as deficiency of service U/S-2 of the C.P.Act and for which the complainant instituted a complaint against the OP-Bank before this Forum.
3. Being noticed the OP-Bank appeared into the case by denying all the facts and raising the question of maintainability of the complaint petition. Case of the OP-Bank, in brief, is that the complainant is drawing his monthly pension through this OP-Bank and his pension was revised by A.G.,Odisha w.e.f. January,2006 and he has been entitled to get an arrear pension of Rs.3,94,566.00 covering the period from January,2006 to June,2011 and the said amount was made on dtd. 22.07.11. But the complainant requested the OP-Bank to spread over the income of the complainant on dtd.19.03.12 after eight months and the OP-Bank deposited the TDS of the Income Tax Deptt. on dtd. 30.03.12. It is case of the OP-Bank that any claim for refund by the customer has to be made only by the said customer/beneficiary after obtaining the Form-16 from the OP-Bank. In this case, the TDS amount of the complainant has already been deposited with the IT Deptt. and in order to facilitate the refund amount the OP-Bank has granted Form-16 to the complainant to lodge his claim for refund of the excess TDS from the Income Tax Deptt.. As such the matter is in between the complainant and the I.T. Deptt.. Further, the case of the OP-Bank that in order to facilitate the early refund of the TDS, the OP-Bank took up the matter with the Central Pension paying Cell,Bhubaneswar for availing the detailed statement of arrear calculation sheet from January,2006 to June,2011 and the complainant has been provided with the said documents which he has handed over to the Tax Consultant for spread over the income over the period and it has been intimated to the OP-Bank out of totaling Rs.42,341/-, the complainant is liable to pay only Rs.7597/- and as such he is to get back of Rs.34,744/-. So, there is no lapse on the part of the OP-Bank. It is also the case of the OP-Bank that the complainant has not handed over the copy of the IT return for the period 2005-06 to 2011-12 for filing the claim for refund of the Income Tax which is excessively credited towards TDS for which the OP-Bank wrote a letter bearing No. 54 dtd. 18.03.13 intimated the complainant to take appropriate action for early settlement of the claim. But the complainant, in response to the said letter asent a reply on dtd. 25.03.13 by narrating so many unnecessary facts and claiming that it is not his duty to instruct the tax consultant to lodge the claim before the IT Deptt. and it is the OP-Bank to comply the direction of the Banking Ombudsman and it is the prime duty of the complainant to lodge his claim for the purpose of refund of Income Tax of Rs.34,744/- as per the calculation made by the Tax Consultant and the OP-Bank has no scope to apply for the same. Further, the case of the OP-Bank though any order has been made by the Hon’ble Banking Ombudsman but unless the complainant takes proper initiative it is not possible to refund the amount. Further the case of the Op-Bank that the complainant has already approached the Banking Ombudsman which is a quasi-judicial body and got an order, hence the same matter can not be re-agitated before this Forum. As such this present proceeding is barred by law of resjudicata. Further, in para-10 of the complaint petition, the complainant has made one representation to the Banking Ombudsman on dtd. 15.05.13 with request to take necessary action as deemed proper. From this, it is well evident that the matter is still pending before the Banking Ombudsman. So, the present proceeding is not maintainable and the present proceeding shall invite a clash in between the decision of two similar competent quasi-judicial body. Under the aforesaid facts and circumstances and documents the complaint is devoid of merit and liable to be dismissed with cost to the complainant.
4. Heard the arguments advanced by the Learned Counsels for the parties,perused the documents,notes on arguments filed into the dispute. It is an admitted fact that complainant is a pension holder having his pension Account with the OP-Bank bearing S/B A/C No.11388026141. It is also admitted that complainant was received an arrear pension amounting of Rs.3,94,566.00 as revised by A.G.,Odisha and the said amount was credited to the S/B Account of the complainant. It is further admitted that an amount of Rs.42,341/-was deducted from the complainant’s S/B Account as TDS. The dispute between the parties arose in respect to quantum of deduction of the said TDS amount. Before going to the factual aspect of the case as the OP- Bank raised he question of maintainability. It is lawful to discuss the points of maintainability. OP-Bank on point of maintainability raised following questions. Firstly complainant can not be treated as a ‘consumer’ as per provisions of C.P.Act,1986. As the pension holders are not consumers and the OP-Bank is not a service provider. Complainant reisting the arguments stated that first of all complainant is a S/B account holder of the OP-Bank, hence he is a consumer. Apart from that the Govt. of Odisha pay certain amount to the OP-Bank as consideration money for availing the service of pensioners. Accordingly, the complainant is well within the purview of the C.P.Act,1986. Secondly, the Op-Bank raised that the present litigation is barred by principle of ‘resjudicata’. It is plea of the OP-Bank that as the complainant had wrote a letter to Banking OMBUDSMAN,Bhubaneswar on dtd. 15.05.2013 for compliance of their direction which is still pending before the Hon’ble OMBUDSMAN for its disposal, hence another dispute like the present one can not be maintainable before this Forum, as the same will be a clash between two quasi-judicial authority.
Considering the above submissions, we are of the opinion that there is no dispute that complainant is a bonafide customer under OP-Bank by virtue of a S/B account holder. The matter of pension as raised by the Op-Bank can not be agitated before a ‘Consumer Forum’. In this regard we emphasize to the version of complainant, when the State Govt. pays a certain amount for each pension holders as consideration amount to the Op-Bank to avail their service for the benefit of the pension holder. So, it can be well presumed that pension holder like complainant is a ‘beneficiary’ of the service provided by the OP-Bank. The decision of the Hon’ble National Commission is very clear which is reported in 2014(4) CPR(NC) In case of Regional Provident Fund Commissioner-Vrs-Manjulaben Kalidas Raval.
So far the principle of ‘Resjudicata’ is concerned, we are of the view that Banking OMBUDSMAN is neither a ‘Court nor a ‘Quasi-judicial’ body. It is a scheme launched to facilitate the grievance of the aggrieved consumers.So pending of application for its disposal of the complainant for non-compliance of order of Hon’ble OMBUDSMAN can not be treated as a suit or complaint pending before a judicial or quasi-judicial body. As per our aforesaid observation the complaint is maintainable and well within the purview of C.P.Act,1986. Discussing the factual aspect of the case it is admitted that an amount of Rs.42,341/- which is deducted by the OP-Bank as TDS U/S 89(1) of the I.T.Act without spreading over the revised pension of the complainant from January,2006 to June,2011 inspite of a written information by the complainant on dtd. 19.03.2012, can the OP-Bank be liable for deficiency in service by such illegal deduction of the TDS from complainant’s S/B Account ?
It is clear that complainant towards his revised arrear pension amounting of Rs.3,94,566/- was credited to his S/B account on dtd. 22.07.2011. The said revised amount was the due for January,2006 to June,2011, while deducting the Tax payable to Income Tax should spread over from January,2006 to June,2011. But the OP-Bank deducted an amount of Rs.42,341/ without spreading over the revised arrear pension amount. Complainant also requested the Op-Bank on dtd. 19.03.2012 by written application to spread over the same, during course of argument complainant produced a letter dtd. 16.01.2012 addressing to the Chief Manager, State Bank of India,Kendrapara to spread over the revised arrear amount, an attested photo copy of the said letter dtd. 16.01.2012 which bears the seal and signature of OP-Bank as acknowledgement is filed into the dispute. But the complaint petition is silent about any letter addressed to OP-Bank on dtd. 16.01.2012. Being aggrieved on the excess tax deduction complainant approached Banking OMBUDSMAN who directed the Op-Bank to refund the excess amount. As per the direction of Banking OMBUDSMAN a tax consultant namely Mr. A.Sahoo,Advocate was appointed and after due calculation opined that complainant is entitled to pay Rs.7597/- only instead of deducted amount of Rs.42,341/- and the balance amount of Rs.34,744/- may be refunded to the complainant-pensioner. On the otherhand OP-Bank submits that prior to receipt of Letter dtd. 19.03.2012 regarding spreading over the revised arrear amount of the complainant the TDS amount of Rs.42,341/- was already deducted from the S/B account of the complainant. As the process of tax deduction takes time and same has to be deposited before the I.T. Deptt. on or before dtd. 30.03.2012. During course of argument Ld. Counsel for OP-Bank submits that the Central Pension Processing Cell’ in short’ ‘CCPC’ is the real authority to deal with the matters of pensioners, who has not been made a party. So far the refund of excess tax amount and the compliance of direction of the Hon’ble OMBUDSMAN are concerned the complainant or a tax-consultant has to apply in Form-16 to the I.T. Deptt. for refund of excess amount if any and the OP-Bank can not refund the excess TDS to the complainant, in this respect OP-Bank has issued a letter on dtd. 18.03.2013 to the complainant to apply as per the norms for refund of excess amount.
The core question involve in the dispute is when complainant on dtd. 19.03.2012 intimated the OP-Bank for spreading over the revised pension, the TDS was already deducted from the S/B account of complainant is the version of the OP-Bank. Both the parties are silent regarding letter dtd. 16.01.2012 addressed to Chief Manager, OP-Bank for spreading over the revised pension. During course of argument complainant filed attested photo copies of the said letter which is duely acknowledged by the office of OP-Bank with their seal and signature. We give much emphasis to the Letter dtd. 16.01.2012, because the complainant has intimated the OP-Bank for spreading over the revised arrear amount much prior to dtd. 30.03.2012 deadline for depositing the TDS amount. Whether the Forum should rely on the letter dtd. 16.01.2012 when a single ward is not mentioned in the complaint petition and in the absence of mentioning of such letter in the complaint, equally the OP-Bank does not get a legal scope to clarify their position.
In this regard, we are of the considered view that when a letter/document is presented before this Forum with an attestation of Ld. Counsel for the parties, we should not disbelieve the same as the disputes in Foras are decided/resolved in a summary manner. To our opinion complainant has wrote two nos. of letter on dtd. 16.01.2012 and dtd. 19.03.2012 informing the Op-Bank to spread over the revised arrear amount accordingly tax may be deducted. If for a moment, we believe the version of the Op-Bank that prior to receipt of information on dtd. 19.03.2012 of spreading over the tax deduction work was already completed, but what about the letter dtd. 16.01.2012 which was duely received by the officers of OP-Bank. If the said letter would have given due importance, the complaint was never before this Forum. At the time of argument Ld. Counsel for Op-Bank argued that the contesting Opp.Party has no role to play in the matter pensions, rather it is the responsibility of CCPC to deal in matters of pensions. Here is a mistake on part of OP-Bank, if due weightage would have given to the letter of the complainant dtd. 16.01.2012 the complainant would have been intimated to approach the CPPC for spreading over the revised arrear pension. On the said letter to the complainant. In this aspect OP-Bank has failed miserably to satisfy their customer.
The next point of determination is how to resolve the issue/ and how the complainant be awarded compensation, if any ?
Now it is clear that due to non-spreading of revised arrear pension of complainant-pensioner who is a Senior Citizen, has definitely sustained financial loss and mental agony. It is also clear that deduction of excess TDS amount are with the I.T. Authorities. To get back the same it needs completion of official formalities like filing of Form No.16 by the Pensioner or his Tax Consultant. As the TDS amounts are not with the OP-Bank any direction to OP-Bank for refund will be infructous. To overcome the difficulties of complainant, OP-Bank should take appropriate and expediate steps to release the excess TDS amount which are deducted from the pension account of the complainant after receiving the complete application for refund by the complainant and on completion of other official formalities if any. As we have observed earlier the OP-Bank has acted negligently by not responding the letter of complainant dtd. 16.01.2012 and dtd. 19.03.2012 for spreading over the revised pension, according to us the complainant-pensioner has definitely sustained financial loss and mental agony, for which complainant deserves sympathy of this Forum. Accordingly, we direct the OP- Bank to pay an amount of Rs.5,000/-(Rupees Five thousand)only as compensation for financial loss and mental agony.
O R D E R
Hence, it is directed that OP-Bank will comply our observations made above on submission and receipt of the application from complainant for refund of excess TDS amount. It is further directed that OP=Bank will pay Rs.5,000/-(Rupees Five thousand)only as compensation and Rs.1,000/-(Rupees One thousand)only as litigation in toto Rs.6,000/-(Rupees Six thousand)only. The ordered amount will be credited into the S/B Account of the complainant bearing No.11388026141 within one month of receipt of this order, failing which 9 per cent interest will be imposed for the delayed period.
The complaint is allowed on contest with cost.
Pronounced in the open Court, this the 29th day of December,2014.
