High Court Of Kerala
Smt. Annamma Ouseph Through Lrs vs. Assistant Commissioner Of Income Tax & Anr.
Sections 1997FA 69, 237
Asst. Years 1994-95, 1995-96
C.N. Ramachandran Nair, J.
OP No. 13631 of 1999
13th March, 2006
Counsel Appeared
P. Balachandran, for the Petitioners : P.K.R. Menon & George K. George, for the Respondents
JUDGMENT
C.N. Ramachandran Nair, J. :
Heard senior counsel Sri P. Balachandran, appearing for the petitioners, and standing counsel appearing for the IT Department for the respondents. The petitioners are legal heirs of the original petitioner who is no more. Some landed properties of one Mr. P.O. Kuriakose was acquired by the Government which entitled him for compensation and interest thereon. The landowner died after filing returns for 1994-95 and 1995-96. However, in the course of assessment the AO noticed receipt of capital gains by the landowner and therefore he issued notice under s. 148 of the IT Act. The widow of the assessee filed returns disclosing capital gains which were accepted by the Department by completing the assessment under s. 143(1)(a) of the IT Act for the asst. yrs. 199495 and 1995-96. However, later when the VDIS was introduced by the Finance Act, 1997, the son of Mr. P.O. Kuriakose filed a declaration disclosing the entire income from capital gains which included the income returned and assessed in the hands of his mother, Mrs. Annamma Ouseph, who filed this writ petition and died thereafter. After the declarant furnished a declaration and paid tax under the VDIS of 1997, his mother, Mrs. Annamma Ouseph filed revision petitions before the CIT against the assessments for 1994-95 and 1995-96 contending that the very same income, namely, capital gains assessed in her hands was declared by her son under the VDIS and so much so, she was entitled to refund. The revision petitions were rejected by the CIT vide Exhibit P6 order and thereafter Mrs. Annamma Ouseph filed this O.P. challenging Exhibit P6 order. During the pendency of the O.P. the petitioner died and her children including the declarant, namely, Kurian Jose, got impleaded as her legal heirs and are pursuing the O.P.
2. Sri P. Balachandran, senior counsel appearing for the petitioners contended that there is already assessment of the very same income inasmuch as the amount disclosed under the VDIS was already assessed in the hands of the declarant’s mother. According to him, on the factual position there is no controversy and the CIT in Exhibit P6 order does not dispute the fact that the income assessed in 1994-95 and 1995-96 in the hands of Mrs. Annamma Ouseph was declared by her son under the VDIS. On the other hand, standing counsel for the respondents referred to s. 69 of the Finance Act, 1997, which prohibits reopening of any completed assessment based on VDIS declaration. Against this contention counsel for the petitioner pointed out that reopening of completed assessment prohibited under s. 69 is that of the declarant’s and not of any other assessee’s. In this case the declarant is the son and the assessee who challenged the assessments is his mother. Even though there is no bar against reopening of assessment under s. 69 of the Finance Act, 1997, I do not think the petitioners are entitled to relief for the reason that the assessments challenged in the revision petitions are based on the returns filed and completed under s. 143(1)(a) of the IT Act. There cannot be any dispute in respect of the assessment made based on the returns filed. Mistake, if any, happened only in the voluntary disclosure of income made by the assessee’s son wherein he included the assessed income also as escaped income in the declaration. Therefore, correction, if any, possible should have been sought only by asking for cancellation of the certificate issued under the VDIS. It is not known whether the declarant had furnished details of the amount declared which is not normally done, to identify the amount disclosed as forming part of the income declared and assessed in the hands of his mother. In any case since the declarant has not challenged the certificate issued under the VDIS, there is no scope for this Court to consider whether the very same income assessed in the hands of the declarant’s mother was returned by him. Since the assessments challenged in revision before the CIT were based on returns filed and completed under s. 143(1)(a), there is no mistake in the same and so much so, there is no scope for interference. The O.P. is therefore devoid of any merit and is dismissed.
[Citation : 284 ITR 298]
