Decided on September 29,2003

Sajan P S Appellant
Range Officer Respondents


KURIAN JOSEPH, J. - (1.) PETITIONER is an auction purchaser of teak poles, teak billets, jungle wood, firewood, etc. as referred to in Exts. P1 and P3 during the year 1994. Though several prayers are there in the original petition, in view of the Bench decision in O.P. No. 15101 of 1993, dt. 21st Jan., 2003, learned counsel for the petitioner submits that what survives for consideration in this original petition is only prayers 2 and 5. The issue to be decided for redressing the grievance of the petitioner in that regard is as to whether the first respondent is justified in deducting income -tax at source at the rate of 15 per cent on the ground that the auctioned wood is not timber. It is the case of the petitioner that the auctioned wood is nothing but timber and hence under Section 206C, the first respondent should have demanded only 5 per cent tax. There is no counter -affidavit on behalf of the first respondent. Whether the goods sold is timber or not, there is no dispute among the counsel that it is an Issue to be decided by the first or the second respondent. If the petitioner has a case that the first respondent has erred in viewing the goods as not timber and demanding 15 per cent tax, it is for him to satisfy either the first or the second respondent that the wood is nothing but timber. The IT Department does not come to the scene at all at this stage. After remitting the tax, as and when the return is filed, the IT Department will decide as to whether the entire tax due had already been paid or whether the petitioner is entitled for refund.
(2.) THEREFORE , I dispose of the original petition as follows. The petitioner may file his objections to Exts. P1, P2 and P4 before the second respondent, Conservator of Forests. The second respondent will decide the issue with notice to the petitioner. Depending on the decision of the second respondent, the issue whether the petitioner is liable to pay either 5 per cent or 15 per cent income -tax under Section 206C will be settled by the petitioner. Needless to say that the second respondent will decide the issue with reference to the relevant statutes including the Kerala Forest Act, the IT Act, etc. Petitioner will file his objections within a period of six weeks from today and thereafter the second respondent will decide the issue within a period of three months thereafter.;

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