ANNAMMA OUSEPH Vs. ASSISTANT COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) Heard senior counsel Sri P. Balachandran, appearing for the petitioners, and standing counsel appearing for the Income-tax 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 land owner died after filing returns for 1994-95 and 1995-96. However, in the course of assessment the Assessing Officer noticed receipt of capital gains by the land owner and therefore he issued notice under Section 148 of the Income-tax Act. The widow of the assessee filed returns disclosing capital gains which were accepted by the Department by completing the assessment under Section 143(1)(a) of the Income-tax Act for the assessment years 1994-95 and 1995-96. However, later when the Voluntary Disclosure of Income Scheme 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 Voluntary Disclosure of Income Scheme of 1997, his mother, Mrs. Annamma Ouseph filed revision petitions before the Commissioner of Income-tax 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 Voluntary Disclosure of Income Scheme and so much so, she was entitled to refund. The revision petitions were rejected by the Commissioner of Income-tax 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 Voluntary Disclosure and Income Scheme was already assessed in the hands of the declarant's mother. According to him, on the factual position there is no controversy and the Commissioner 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 Voluntary Disclosure of Income Scheme. On the other hand, standing counsel for the respondents referred to Section 69 of the Finance Act, 1997, which prohibits reopening of any completed assessment based on Voluntary Disclosure of Income Scheme declaration. Against this contention counsel for the petitioner pointed out that reopening of completed assessment prohibited under Section 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 Section 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 Section 143(1)(a) of the Income-tax Act. There cannot be any dispute in respect of the assessment made based on the returns filed. The 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 Voluntary Disclosure of Income Scheme. 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 Voluntary Disclosure of Income Scheme, 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 Commissioner were based on returns filed and completed under Section 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.