DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.384 of 2018

                                                 Date of institution:  27.03.2018                                                      Date of decision   :  18.04.2018

M/s. Macro Ventures Pvt. Ltd., Regd. Office at Plot No.15, Dashmesh Street, Chandigarh Ambala Road, Village Phabat, Zirakpur – PIN 140603.

…….Complainant

Vs

1.     HDFC Bank Limited, SCO 55-57, Phase-VII, Mohali through its Branch Manager.

2.     HDFC Bank Limited (Head Office), Plot No.28, Ind. Area Ph-1, Chandigarh through its Regional/Zonal Manager.

                                                                ……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Shri Amrinder Singh Sidhu,

                Mrs. Natasha Chopra, Member.

Present:     Shri Rohit Gupta, counsel for the complainant.

Order by :-  Shri G.K. Dhir, President.

Order

               Complainant, a private limited company registered under the provisions of Companies Act 1956, holds current account No.13072320000575 with OP No.1. Another firm named as M/s. Pioneer Sales Network operates at Parwanoo (HP) under the sole proprietorship of Mrs. Sonia Chopra. That firm has been assessed to tax by DETC, Flying Squad, South Zone, Parwanoo (HP). After passing of orders in case of M/s. Pioneer Sales Network, recovery proceedings had been initiated by Excise and Taxation Department in an illegal manner by sending letter to the bank, in which accounts are held and also to the banks in which accounts are not held by her in personal capacity. Excise and Taxation Department served a notice dated 14.03.2016 on OP Bank on account of demand created against Pioneer Sales Network (referred above). It is claimed that department by illegally invoking provisions of Section 27 of Himachal Pradesh Value Added Tax Act, 2005 (Act No.12 of 2005) (hereinafter referred as ‘HPVAT’) directed OP bank to pay Rs. One Crore from the accounts maintained by Mrs. Sonia Chopra either personally or in the name of her  companies/concerns, either by transferring the same through RTGS in the account of the department of Excise and Taxation or by sending the demand draft in the name of DETC, Flying Squad, South Zone, Parwanoo (HP). On the same date namely 14.03.2016, OP bank without  seeing the shortcomings of the notice and seeking instructions from the complainant transferred an amount of Rs.1,56,679/- from the above referred account of complainant hurriedly and in an illegal manner. Likewise another amount of Rs.26,575/- was transferred from the said account  on 15.03.2016 to the account of the department without any legal basis. Complainant after knowing about the same contacted OPs, but its efforts remained futile. Complainant Company has distinct legal entity and as such for redressal of the grievance, legal notice dated 18.03.2016 was duly served on OPs for calling up them to reverse the amount debited from its current account. Despite issue of legal notice, OP bank again transferred an amount of Rs.57,421/-  from the above referred account of the complainant to the account of Excise & Taxation Department on 21.03.2016. Provisions of Section 27 of HPVAT are cited for claiming that the amount cannot be recovered from the complainant, even if the proprietor of another concern is its director. Reply dated 28.03.2016 was sent by OP bank to the legal notice, for claiming that Mrs. Sonia Chopra exercises full control of the accounts as an authorised signatory and cannot be treated as a stranger to the said account. Moreover, the amount transferred in compliance of the legal order of the competent authority and as such there is no deficiency in service. It is claimed that banker is duty bound to safeguard the interest of the depositors, when the amount is entrusted to its custody, more so when no direction issued by complainant for transfer of the above said amount to the account of Excise & Taxation Department. Total amount of Rs.2,40,675/- was transferred from the above account of the complainant during the period from 14.03.2016 to 21.03.2016 and interest amount of Rs.64,918/- is due on that account. By pleading deficiency in service on part of OPs, prayer made for directing the OPs to refund the illegally withdrawn amount of Rs.2,40,675/- with interest of Rs.64.918/- calculated upto 28.02.2018. Litigation cost of Rs.50,000/- more claimed.

2.             Arguments at admission stage heard. From the perusal of contents of complaint, it is made out that the amounts referred above were transferred by OP bank to the account of Department of Excise & Taxation in pursuance of the letter dated 14.03.2016 issued by Deputy Excise & Taxation Commissioner, Flying Squad, South Zone, Parwanoo. Copy of that letter annexed with the complaint. Perusal of that letter reveals that OP bank has been called upon by Deputy Excise & Taxation Commissioner to credit amount of Rs.1.00 Crore to the Govt. of Himachal Pradesh on account of liability of Mrs. Sonia Chopra to pay HPVAT. Provisions of section 27 (4) & (6) of HPVAT invoked for issuing such directions through letter dated 14.03.2016. It is also the case of complainant put forth in so many words in the complaint that the amounts in question were transferred from the account of  complainant concern to the account of Excise & Taxation Department in pursuance of the notice dated 14.03.2016 sent by Deputy Excise & Taxation Commissioner to OP bank. That fact also incorporated by OPs in reply submitted by them to the legal notice dated 28.03.2016, served by complainant through counsel. So it is obvious that OP bank has not transferred the above referred amounts of Rs.2,40,675/- at its own, but those amounts were transferred in view of orders passed by Deputy Excise & Taxation Commissioner exercising powers under HPVAT.

3.             Re-assessment of VAT is permissible under Section 23 of HPVAT by Assessing Authority. Amount of any tax and penalty imposed or interest payable under HPVAT, if remained unpaid after due date, is recoverable as arrears of land revenue as per Section 25 of HPVAT. Such amount of tax and penalties including interest has been declared as first charge on the property of the dealer or any such other person as per Section 26 of HPVAT. Section 27 (1) (b) of HPVAT provides that in case the amount due under the Act has not been paid by the dealer or such other person, then the Commissioner or any other officer other than Excise & Taxation Inspector, may order for withholding of any money or any account of such dealer, so as to ensure that the payment of due amount done in the Govt. Treasury. Such notice may be amended or revoked at any time. Section 27 (3) of HPVAT further provides that any person making payment in compliance with a notice issued under Section 27 (1) of the Act will be deemed to have made the payment under the authority of the dealer and treasury receipt for such payment will constitute a good and sufficient discharge of liability of such person. As notice in question has been issued to OP bank by Deputy Excise & Taxation Commissioner by exercising powers under Section 27 (4) & (6) of HPVAT and as such OP could not have refused to obey that order, being passed by competent authority.  Section 28 of HPVAT confers powers on the assessing authority either suo moto or on an application to refund any amount of tax, interest or penalty to the dealer or such other person. Provisions of Section 27 of HPAVT to be invoked without prejudice to any action that may be taken for recovery of arrears of tax, interest and penalty, if any, due from the dealers. After finding that Mrs. Sonia Chopra is a director of Complainant Company, Deputy Excise & Taxation Commissioner, Parwanoo ordered OP bank to transfer the above referred amounts from the account of complainant concern to the account of Govt. of H.P. on account of liability of Mrs. Sonia Chopra to pay the requisite amount of VAT alongwith interest and penalty levied thereon and as such by doing so the OP bank abided by the directions issued by lawful authority, who invoked the jurisdiction under Section 27 of the HPVAT.  As and when bank or any other person in obedience to the orders passed by any authority constituted under the Act, complies with the same by responding to the request of transfer of amounts from account holder to the accounts of the Govt., then said action is neither unlawful and nor illegal. When such is the position, then the act of transferring the demanded amounts by OP to accounts of HP Govt. in pursuance of letter dated 14.03.2016 issued by Deputy Excise & Taxation Commissioner, is not an act constituting deficiency in service on part of OP or rendering that act amounting to adoption of unfair trade practice.

4.             Powers of appeal, revision or rectification of the orders passed by authorities under the HPVAT are enshrined in Section 44 and 45 of HPVAT. Revision against those orders even maintainable in view of Section 46 of HPVAT. Rectification of the mistakes in the orders is permissible under Section 47 of HPVAT. Any order made by HPVAT Tribunal is liable to be challenged before the Hon’ble High Court of Himachal Pradesh as per Section 48 of HPVAT.  The Tribunal or Commissioner or any other person competent under HPVAT has the same powers as are vested in a Code of Civil Procedure when trying a suit in respect of enforcing the attendance of any person; compelling the production of documents; issuing commissions for examination of witnesses and of requiring or accepting proof of facts by affidavits etc.  In view of these provisions of Section 49 of HPVAT, it is obvious that Deputy Excise & Taxation Commissioner was having full powers to call upon OP bank to transfer the requisite amounts from the account of complainant to Govt. of Himachal Pradesh in respect of liability of VAT, interest and penalty of Mrs. Sonia Chopra, who is also a Director of complainant company. If those powers erroneously exercised by Deputy Excise & Taxation Commissioner, then remedy available with the complainant is to approach the said Deputy Excise & Taxation Commissioner, or the Commissioner for revising the order or of seeking revision under Section 28 of the Act or of filing of appeal before the Tribunal under Section 45 of HPVAT. As the order passed by Deputy Excise & Taxation Commissioner for calling upon OP bank to transfer the amount from account of complainant concern to Govt. of Himachal Pradesh under Section 27 of the HPVAT and as such this order cannot be challenged in any civil court in view of bar created by Section 43 of HPVAT because that order could have been challenged before the Tribunal in appeal or in revision as provided by Sections 45, 46, 47 and 48 of HPVAT. Powers of revision vests in Hon’ble High Court of Himachal Pradesh as per Section 48 (1) of HPVAT and as such certainly  this Forum has no jurisdiction to entertain this complaint, moreover when the orders passed by Deputy Excise & Taxation Commissioner sought to be evaded by filing of this complaint by repeatedly claiming those orders as illegal order. Legality of those orders cannot be the subject matter of consumer complaint, more so when OP bank transferred amounts in question in account of HP Govt. in obedience to the orders passed by a competent authority namely Deputy Excise & Taxation Commissioner of Himachal Pradesh. Moreover, HPVAT is a complete code providing due procedure of levy of VAT, penalty and interest with remedy of challenging the orders before the authorities constituted under the Act and as such also in view of express bar of jurisdiction laid in Section 43 of HPVAT, of any court for declaring the orders as illegal or erroneous, certainly this Forum has no jurisdiction to entertain this complaint. HPVAT is a code in itself providing for complete remedy therein and as such certainly this complaint is not maintainable. In similar circumstances it has been held in case titled as S. Dorai Raj Vs. Divisional Forest Officer, I (2014) CPJ 444 (NC)  and Sanjay Kumar Mishra Vs. PIO etc. 2015(1) CLT 259 (NC) by Hon’ble National Commission that as the Right to Information Act is a complete code in itself providing for  available remedies and as such consumer complaint under the Consumer Protection Act is not maintainable. Ratio of these cases fully applicable to the facts of the present case, particularly when OP neither rendered deficient services and nor adopted any unfair trade practice by complying with the orders of a legal authority to transfer the amounts from complainant’s account to the account of  Govt. Treasury. Those orders passed under HPVAT in exercise of powers under Section 27 of HPVAT. So, jurisdiction of the Forum is barred in view of availability of complete remedies under the HPVAT, which in itself is a complete code. Benefit from ratio of case K.M. Adam Vs. Income Tax Officer II Additional II Circle, Madras, 1958 33 ITR (Mad) cannot be got by counsel for complainant because there is nothing contained in the cited authority that jurisdiction of Consumer Forum is there. Rather in Para No.10 of the cited case, it has been held that petitioners have equal efficacious remedy by filing appeal under the BMPC Act, in addition to remedy available under Articles 226/227 of Constitution of India. Question of jurisdiction of Consumer Forum in taxation matters not decided in the said authority at all. Therefore, this consumer complaint being not maintainable merits dismissal at admission stage itself.

5.             Section 27 (1) of HPVAT further provides that the person who holds money for or on account of the dealer may be called upon by Excise & Taxation Commissioner or officer above the rank of Excise & Taxation Inspector, to pay into the Govt. Treasury, in the manner specified in the notice, so much of the money as is sufficient to pay amount due from the dealer in respect of arrears of taxes, interest and penalties under the Act. In view of this Section 27 (1) of HPVAT, it is obvious that the amount collected from complainant was virtually deposited by OP bank in Govt. Treasury and if that be the position, then refund of the same also to be made by Govt. Treasury. Provision for refund is made in Section 28 of HPVAT. Section 28 (1) of HPVAT further provides that in case the amount of tax, penalty or interest paid or recovered from the dealer is in excess of the amount due from him, then the same to be refunded by refund voucher or by way of such adjustment of the amount, as the dealer concerned aspires in respect of any other period. So it is obvious that even if refund is ordered, despite that the same to be made through refund voucher to be issued by the department concerned by directing the same to the Treasury. It is only on issue of refund voucher that the amount will return back to the account of the complainant maintained with OP Bank. It is not at all claimed that any refund voucher has been issued and as such fault does not lie with OP in not refunding the amount. Rather remedy available with complainant is to approach the authorities concerned namely Excise & Taxation Commissioner or the Treasury Officer, for getting issued the refund voucher from the competent authority. Moreover, the amount was transferred to the Treasury in Himachal Pradesh and if such refund is sought, then the same to be made by the Treasury in Himachal Pradesh on authorization got from the competent authority. In that eventuality, territorial jurisdiction of this Forum does not remain. So in view of above and in view of specific bar created by Section 43 of HPVAT, providing for non calling of any order in question in any civil court, certainly this Forum has no jurisdiction.

6.             As a sequel of above discussion, the complaint is dismissed being not maintainable at admission stage itself.  Certified copy of the order be supplied to the complainant free of cost as per rules. File be indexed and consigned to record room.

Announced

April 18, 2018.

                                                                (G.K. Dhir)

                                                                President

(Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member