Ita/121/2008 Of The Commissioner Of Income-Tax, Tvm v. M/S.surya Samudra Holiday Resorts(P)Ltd

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 ITA.No. 121 of 2008() --------------------- ITA.48/COCH/2004 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT ----------------------------- THE COMMISSIONER OF INCOME TAX, THIRUVANANTHAPURAM. BY ADV. SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT/RESPONDENT ------------------------- M/S. SURYA SAMUDRA HOLIDAY RESORTS (P) LTD., THIRUVANANTHAPURAM. ADV. SRI.P.BALAKRISHNAN (E) FOR R1 THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 19/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR &K.SURENDRA MOHAN, JJ. .................................................................... I.T. Appeal No.121 of 2008 ....................................................................Dated this the 19th day of February, 2009. JUDGMENT Ramachandran Nair, J. The question raised pertains to computation of relief underSection 80 HHD of the Income Tax Act. The issue arose for theassessment year 1996-97. During the year respondent-assessee madedeclaration under the Voluntary Disclosure of Income Scheme. In fact,in the first assessment it is seen that tax is demanded after excludingthe declared income in terms of Section 68 of the Finance Act, 1997.Relief under Section 80 HHD was also granted by reckoning the VDIamount of Rs.40,13,000/- also as part of the gross income. However,later the Assessing Officer invoked powers under Section 147 andreworked relief under Section 80 HHD by excluding VDI amount ofRs.14.13 lakhs from the gross total income. The first appellateauthority reversed this and the Tribunal confirmed it. It is against thisorder the Revenue has filed the appeal. We have heard Senior StandingCounsel for the appellant and Adv. Sri.P.Balakrishnan appearing for the respondent. 2. Revenue can succeed only if it is shown that the amountcovered by the VDIS was not included in the total income of theprevious year. On the other hand, in the original assessment itself theAssessing Officer has excluded the VDIS amount in the computation oftax liability. In other words, the department has accepted the positionthat the VDIS amount is not included in the total gross income and somuch so, there is no scope for excluding the same while computingrelief under Section 80 HHD. We, therefore, dismiss the department'sappeal. C.N.RAMACHANDRAN NAIRJudge pms K.SURENDRA MOHANJudge