Wa/1689/2006 Of Mr.kurien Jose & Others v. The Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC &THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNESDAY, THE 12TH DAY OF AUGUST 2015/21ST SRAVANA, 1937 W.A.No. 1689 of 2006 (D) ------------------------ AGAINST THE JUDGMENT IN OP 13631/1999 of HIGH COURT OF KERALA DATED13-03-2006. APPELLANT(S)/PETITIONERS IN THE O.P: ---------------------------------------------------------- 1. MR.KURIEN JOSE, NO.35, CHOICE VILLAGE, TRIPUNITHURA. 2. MRS. ALEYKUTTY EMMANUEL, NO.35, CHOICE VILLAGE, TRIPUNITHURA. 3. MRS. ANNAKUTTY MATHEW, NO.35, CHOICE VILLAGE, TRIPUNITHURA. 4. MRS.MARY JOSEPH, NO.35, CHOICE VILLAGE, TRIPUNITHURA. 5. MRS. PENNAMMA THOMAS, NO.35, CHOICE VILLAGE, TRIPUNITHURA. APPELLANTS 2 TO 5 REPRESENTED BY THE 1ST APPELLANT BEING THIER DULY APPOINTED POWER OF ATTORNEY. BY ADVS.SRI.ABRAHAM VAKKANAL (SR.) SRI.P.GOPINATH SRI.PAUL ABRAHAM VAKKANAL SRI.ARUL KUMAR.P RESPONDENT(S)/RESPONDENTS IN O.P: ---------------------------------------------------------- 1. THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-1, KOTTAYAM. CIRCLE-1, KOTTAYAM. 2. THE COMMISSIONER OF INCOME TAX, TRIVANDRUM. TRIVANDRUM. BY SRI. P.K.R MENON, SENIOR STANDING COUNSEL FOR INCOME TAX THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30-07-2015, THE COURTON 12.08.2015 DELIVERED THE FOLLOWING: P.T.O. APPENDIX APPELLANTS' ANNEXURS: NIL RESPONDENTS' ANNEXURES: ANNEXURE R2(A):TRUE COPY OF THE COMPUTATION OF TOTAL INCOME FILED ALONG WITH THE RETURN FOR ASST. YEAR 1994-95. ANNEXURE R2(B):TRUE COPY OF THE COMPUTATION OF TOTAL INCOME FILED ALONG WITH THE RETURN FOR ASST. YEAR 1995-96. ANNEXURE R2(C):TRUE COPY OF THE STATEMENT OF VOLUNTARILY DISCLOSED INCOME FURNISHED ALONG WITH THE VDIS DECLARATION. //TRUE COPY// P.S. TO JUDGE St/- ANTONY DOMINIC & SHAJI P. CHALY, JJ. -----------------------------------------------W.A.No.1689 of 2006 -----------------------------------------------Dated this the 12[th] day of August, 2015 JUDGMENT Shaji P. Chaly, J. This writ appeal is preferred by the additional writpetitioners against the judgment dated 13.03.2006 of thelearned Single Judge in O.P.No.13631 of 1999. The writpetition was originally filed by one Annamma Ouseph, whodied during the pendency of the writ petition, consequent towhich the appellants, her legal representatives, wereimpleaded as additional petitioners in the writ petition. Thewrit petition was filed challenging Ext.P6 order passed by the2[nd] Respondent, refusing to entekrtain a refund applicationfinalized by the 1[st] appellant for the assessment years 1994-1995 and 1995-1996 and by the impugned judgment, thelearned Single Judge upheld the said order. 2.Brief facts required for the disposal of the writappeal are as stated hereunder: W.A.No.1689 of 2006 3.The writ petitioner, namely late Annamma Ouseph, was the wife of one P.O.Kuriakose, who was an assessee underthe Income Tax Act, 1961 (for short, “the Act”). The saidP.O.Kuriakose died on 26.06.1995 and for the assessmentyears 1994-1995 and 1995-1996, the writ petitioner filedreturns of income as the legal heir of late Kuriakose before the1st Respondent and accordingly paid the tax and Surchargedue as per the return amounting to Rs.2,63,060/- andRs.80,192/- respectively. The 1st Respondent completed theassessment under Sec.143(1)(a) of the Act as per Exts.P1 andP1(a). It was the contention of the writ petitioner that she hadadopted wrong figures for calculating part of the additionalcompensation and part of the interest based on statementobtained from the Land Acquisition Officer. Since there werefamily disputes, certain documents were not available with thewrit petitioner, when she filed the original returns. 4.It was the further contention of the writ petitionerthat the State Government had acquired an extent of about257 cents of agricultural land in Survey No.611/2, 611/3-2 ofLalam Village of Meenachil Taluk. Advance possession of theland after the requisite proceedings were taken on 10.02.1987 W.A.No.1689 of 2006 and an award was passed by the Deputy Collector, Kottayam,awarding a compensation of Rs.10,56,672-33/-. Out of theaforesaid amount, an amount of Rs.6,76,271/- was receivedon 15.01.1989 and the balance of Rs.3,80,401/- was receivedon 02.11.1989. Dissatisfied with the compensation, lateP.O.Kuriakose sought Reference before the Additional SubCourt, Kottayam and the Reference Court had awarded anamount of Rs.20,51,248/- inclusive of all the benefits providedunder the Land Acquisition Act. Again, out of the said amount,Rs.18,56,270/- was received on 08.04.1993 and the balance ofRs.1,94,978/- on 11.08.1994. Thus, altogether, including theamount awarded by the original authority, late Kuriakosereceived an amount of Rs.51,73,364/-. But in view of thedisbursal of Rs.10,56,672.33/- to the writ petitioner during theassessment years 1994-1995 and 1995-1996, the writpetitioner had filed returns and thereupon the 1st Respondenthad completed the proceedings under Sec.143(1)(a) as per hisintimation dated 20.03.1997. Thus, the writ petitioner namelyAnnamma Ouseph had only paid tax due on the compensationawarded by the Land Acquisition Officer, and no other amountwas received either by late P.O.Kuriakose or Annamma Ouseph W.A.No.1689 of 2006 at that point of time to file returns for the whole amountreceived under the Land Acquisition proceedings. 5.The writ petitioner's husband late P.O.Kuriakose hadexecuted a will dated 23.04.1988 by which the 1[st] appellantherein was authorised to receive compensation in respect ofthe land acquisition proceedings. He was an assessee ofincome tax under the Mattanchery Circle, Ernakulam District.The 1[st] appellant later collected information in respect of theabove proceedings and filed declarations under VoluntaryDisclosure of Income (VDI) Scheme and paid tax due for theentire amount of compensation received, under the saidScheme, on 31.03.1988, which included the amount ofcompensation to which late Annamma Ouseph had filed returnsfor the assessment years 1994-1995 and 1995-1996 and paidtax. 6.It was the further case of the writ petitioner that inthe said view of the matter, she had preferred RevisionPetitions under Sec.264 of the Act, requesting the 2[nd]Respondent to revise the intimation under Sec.143(1)(a)dated 20.03.1997 for the assessment years 1994-1995 and1995-1996 and for a direction to refund the amount of Rs.2,63,060/- and Rs.80,192/- paid by her. However, the 2[nd]Respondent rejected the same by Ext.P6 impugned order dated09.09.1998 and thus aggrieved by the said order, the writpetition was preferred by late Annamma Ouseph. 7.Even though the Respondents have not filed anycounter affidavit in the writ petition, a counter affidavit wasfiled by the 2[nd] Respondent in the writ appeal basicallycontending that the petitioner was not entitled to get thereliefs sought for since the proceedings under Sec.143(1)(a)were concluded and therefore there are no circumstancesavailable in order to re-open the same and consider therequest made by the petitioner for cancellation of theintimation and to refund the amount paid for the aforesaidassessment years. It was also contended that the optionaccepted by the 1[st] appellant under the VDI Scheme cannot bere-opened under any circumstances since Secs.69 and 70 ofthe Finance Act, 1997 prohibited refund of any amount paidunder the said Scheme. 8.During the pendency of the writ petition, thepetitioner namely Annamma Ouseph died and consequently theappellants herein were impleaded as additional petitioners as W.A.No.1689 of 2006 8.During the pendency of the writ petition, thepetitioner namely Annamma Ouseph died and consequently theappellants herein were impleaded as additional petitioners as W.A.No.1689 of 2006 per the order dated 06.03.2006 in I.A.No.2198 of 2006. 9.Heard the learned counsel for the appellants and thelearned Senior Standing Counsel appearing for therespondents, Income Tax Department. 10.The learned Single Judge after evaluating the factsand circumstances of the case and the law involved in thesubject matter, had arrived at a finding that the appellants arenot entitled to get any reliefs sought for since the proceedingspursuant to the returns filed were completed under Sec.143(1)(a) of the Act by the 1st Respondent. So also the learnedSingle Judge held that since the 1[st] appellant has paid theamount under the VDI Scheme, it cannot be reopened in viewof the prohibition contained under Secs.69 and 70 of theFinance Act, 1997 and therefore the petitioners were notentitled to get the reliefs sought for. 11.We have gone through the pleadings in the writpetition, writ appeal and attendant documents and the counteraffidavit filed by the 2[nd] Respondent. 12.Learned counsel for the appellants contended thattax paid by late Annamma Ouseph for the assessment years1994-1995 and 1995-1996 in view of the tax paid by the 1[st] appellant under the VDI Scheme, covering the said period also,was liable to be refunded, since it amounted to double taxationagainst the aforesaid assessment years, which was notcontemplated under the Income Tax laws. 13.According to us, so far as tax paid by late AnnammaOuseph is concerned, it was on the basis of the compensationamount received by her under the Land Acquisitionproceedings after the death of the original awardee which shewas liable to pay for the aforesaid assessment years.Therefore, so far as the payment of tax for the saidassessment years are concerned, the same were in accordancewith law and did not require any correction in terms of Sec.143(1)(a) of the Act. We also appreciated the fact that subsequentpayment of the tax amount under the VDI Scheme by the 1[st]appellant, s/o late Annamma Ouseph was as per the schemelaunched by the Income Tax Department and at that point oftime, if he was cautious enough, he should have restricted thepayment to the balance amount after deducting the paymentmade by late Annamma Ouseph for the assessment years1994-1995 and 1995-1996. Circumstances being so, lateAnnamma Ouseph could not have sought reopening of the W.A.No.1689 of 2006 proceedings finalized under Sec.143(1)(a) of the Income TaxAct, invoking Sec.264 of the Act. We are of the consideredopinion that there is no illegality or legal infirmity in thejudgment warranting our interference. Appeal fails and accordingly same is dismissed. Sd/-ANTONY DOMINIC JUDGE Sd/- SHAJI P. CHALY JUDGE //true copy// P.S. to Judge St/-