Heard Mr.s.n.soparkar, Learned Senior Advocate v. Commissioner Of Income-Tax And Another (2003) 259 Itr 1

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 445 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA Sd/- HONOURABLE MR.JUSTICE H.B.ANTANI Sd/- ========================================================= 1[Whether Reporters of Local Papers may be allowed ]to see the judgment ? NOto see the judgment ? NO 2To be referred to the Reporter or not ? NO 3[Whether their Lordships wish to see the fair copy ]of the judgment ? NOof the judgment ? NO Whether this case involves a substantial question of law as to the interpretation of the of law as to the interpretation of the 4constitution of India, 1950 or any order made thereunder ? NOconstitution of India, 1950 or any order made thereunder ? NO 5[Whether it is to be circulated to the civil judge ]? NO? NO ========================================================= HAKIMCHAND D CHOTAI - Petitioner(s)Versus COMMISSIONER OF INCOME-TAX - Respondent(s) ============================================================== Appearance : MR SN SOPARKAR with MR VK PATEL for Petitioner(s) : 1,MR MANISH R BHATT for Respondent(s) : 1, ========================================================= CORAM :HONOURABLE MR.JUSTICE D.A.MEHTAand HONOURABLE MR.JUSTICE H.B.ANTANI Date : 17/06/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.A.MEHTA) SCA/445/2000 respondent authority in not issuing certificate of the full amount disclosed under the Voluntary Disclosure of Income Scheme, 1997(VDIS); alternatively, the action of respondent authority in not refunding the sum of Rs.7,42,000/- paid as tax and interest under VDIS has been challenged. 2.Heard Mr.S.N.Soparkar, learned Senior Advocate for the petitioner and Mr. M.R.Bhatt, learned Standing Counsel for respondent authority. It is an agreed position between the parties that the issue is no longer res integra by virtue of the decision rendered by Supreme Court in the case of Hemalatha Gargya Vs. Commissioner of Income-Tax and Another (2003) 259 ITR 1. 3It is an admitted position between the parties that the petitioner made a declaration disclosing income of Rs. 34,50,000/- on which total tax (inclusive of interest) payable was Rs.10,77,000/-. The declaration was made on 08.12.1997. The petitioner paid a sum of Rs.3,35,000/- towards tax on 08.12.1997. The balance amount of Rs.7,00,000/- SCA/445/2000 towards tax and Rs.42,000/- towards interest was paid only on 26.03.1998. Admittedly, the said date viz. 26.03.1998 fell beyond the statutorily prescribed period of three months from the date of declaration and hence the respondent authority accepted the declaration only in relation to the income relatable to tax paid amounting to Rs.3,35,000/-. Hence, the aforesaid challenge. 4.The petitioner has made the following principal prayers: “(a)to command to the respondent to issue to the petitioner certificate of the full amount accepting the declaration made by the petitioner under Voluntarily Disclosure of Income Scheme, 1997 at Ann.'B' hereto; orIn the alternative: (b) to command to the respondent to refund and/or permit adjustment of the amount of Rs.7,42,000/- paid by the petitioner under Voluntary Disclosure of Income Scheme, 1997 if it is found as not covered under the Scheme;” 5.In light of the aforesaid decision of the Apex Court prayer (a) cannot be granted and the petitioner assessee cannot succeed on the said count. In relation to the alternative prayer, i.e. prayer (b), the Apex Court has stated in the case of Hemalatha Gargya (supra) thus : “(a)to command to the respondent to issue to the petitioner certificate of the full amount accepting the declaration made by the petitioner under Voluntarily Disclosure of Income Scheme, 1997 at Ann.'B' hereto; orIn the alternative: (b) to command to the respondent to refund and/or permit adjustment of the amount of Rs.7,42,000/- paid by the petitioner under Voluntary Disclosure of Income Scheme, 1997 if it is found as not covered under the Scheme;” 5.In light of the aforesaid decision of the Apex Court prayer (a) cannot be granted and the petitioner assessee cannot succeed on the said count. In relation to the alternative prayer, i.e. prayer (b), the Apex Court has stated in the case of Hemalatha Gargya (supra) thus : “However, having held that the assessees are not entitled to the benefit of the Scheme since the payments made by them were not in terms of the Scheme, we direct the Revenue authorities to refund or adjust the amounts already deposited by the assessees in purported compliance with the provisions of the Scheme to the concerned assessees in accordance with law”. 6.Hence, the respondent authority is directed to either refund or adjust the amount already deposited by the assessee to the tune of Rs.7,42,000/- in accordance with the directions issued by the Apex Court. The petition is accordingly partly allowed. Rule made absolute to the aforesaid extent with no order as to costs. M.M.BHATT