9911796707
TMI Blog1984 (6) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... e VD Act. He had also appended to it a return of wealth under section 14 for the assessment year 1975-76. In that he had returned total net wealth of Rs. 16,58,776.33 for the assessment year 1975-76. Ho had paid an amount of Rs. 54,360 on 30-12-1975 under the VD Act. The return was filed by Shri Sai Reddy as an individual. 4. So also, Shri Sanjeeva Reddy filed a declaration under the VD Act under the provisions of section 15(1). He, also filed a return in Form No.C accompanied by a regular return under the Act for the assessment year 1975-76. The declaration filed under the provisions of the VD Act is addressed to the Commissioner who in his turn had forwarded them before the WTO for completing the assessment. 5. Further, the HUF constituted by Shri Sai Reddy and Shri Sanjeeva Reddy was also assessed to wealth-tax for the assessment year 1975-76. Both Shri Sai Reddy and Shri Sanjeeva Reddy contended during the assessment proceedings of the HUF that there was an oral partition between them on 10-12-1970 and subsequently a suit for partition was also filed in the Court of Fifth Additional Judge, City Civil Court in OS No. 573 of 1975. It is only subsequent to the claim for partit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... WTO requesting for grant of refunds of the amounts which they have paid on 30-12-1975 and 31-12-1975. Shri Sai Reddy requested for the refund of Rs. 54,360 paid on 30-12-1975 through SBH, challan No. 8094 whereas Shri Sanjeeva Reddy prayed for refund of Rs. 29,600 paid on 31-12-1975 in SBH Gunfoundry by cheque No. 543804. They made a request for refund of those amounts paid under the VD Act in their individual statutes with interest at 12 per cent as there is no assessment against them individually as held by the Tribunal. However, the WTO, by his modificatory orders dated 18-12-1982 held, as there was no specific provision for refund of the amount paid under the VD Act towards wealth-tax no question of refund arises. He had also relied upon this Tribunal's decision in the case of Smt. Rambai v. WTO [WT Appeal Nos. 469 to 475 (Hyd.) of 1980 dated 29-7-1981] wherein it was held that the return filed along with declarations under the VD Act, cannot form a basis for the assessment. The WTO held that unless the assessment is made the tax paid under the VD Act cannot be adjusted under the terms of section 15(7). Therefore, he held that the respective amounts deposited under the VD Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y them, the assessees are entitled to the refund of wealth-tax paid by them under the VD Act. Ultimately, the WTO was directed to refund Rs. 54,360 to Shri Sai Reddy and Rs. 29,600 to Shri Sanjeeva Reddy though they were paid under the VD Act. Thus, by means of two separate orders dated 14-3-1983 the appeals filed by these assessees are allowed and refunds were ordered. 8. As against the impugned orders of the AAC dated 14-3-1983 granting refunds these second appeals were filed. The cross-objections were filed by the two assessees only in support of the AAC's orders and no specific prayer was made in them or no substantial relief was prayed for in them. 9. The two miscellaneous petitions were filed, as already stated above, by the assessees. In each of them it is stated that the Tribunal while passing its orders dated 25-9-1980 in WT Appeal Nos. 312 and 343 to 347 (Hyd.) of 1979 did not specifically order refunds of the amounts paid by the assessees for the assessment year 1975-76 and on that ground the WTO refused to grant the refunds due which is quite untenable. Therefore, it was prayed that the Tribunal may be pleased to clarify the order dated 25-9-1980 by giving direction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O recognised those very returns of wealth as these were filed under the Act and completed assessments under section 16(3) dated 30-7-1976. Once the WTO himself recognised the returns as validly filed under the Act and once the Tribunal itself had cancelled the assessments, the WTO according to the assessees' counsel, cannot turn round and say that the assessment proceedings are not under the Act but should be deemed to be under the VD Act. Once the proceedings of these assessees which took place for the assessment year 1975-76 were taken to be proceedings under the Act, then under section 34 of the said Act refunds can be validly granted. 11. On the other hand, the learned departmental representative contends that in Smt. Rambai's case, 'A' Bench of the Tribunal by its order dated 29-7-1981 categorically held that the return filed in compliance with the express requirements of the VD Act cannot be considered to be a return voluntarily filed under section 15, read with section 14. Simply because a return was annexed to the declaration under the VD Act there had been no element of volition on the part of the assessee and, therefore, on that ground the returns accompanying the decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Now in this case admittedly the HUF headed by Shri Sai Reddy was already assessed for the assessment year 1975-76 and the demanded tax was already paid. In fact, the so-called individual assets of these assessees comprised nothing but the alleged divided properties of the HUF. So, when the HUF was itself assessed for the assessment year 1975-76, the same assets which were sought to be assessed in the individual hands of these assessees were deemed to have been already assessed. If that is so, the department cannot recover wealth-tax both from the HUF as well as from the individual coparceners in respect of the same asset. So, in our opinion, once the Tribunal annulled the individual assessments for 1975-76 it means that the assessees had no assets at all to be taxed in their hands. The tax amount paid by them would remain as mere deposits which are not liable to be appropriated towards any tax. In our opinion, the deposits, thus, standing to the credits of the assessees are neither governed by the provisions of the VD Act nor by the provisions of the Act and, therefore, under the principles of general law as they cannot be appropriated towards any particular demand, the amounts ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated by us above the two miscellaneous petitions filed by the assessees are allowed. Per Shri S. Rajaratnam, Accountant Member: 14. I would like to concur with the conclusion of my learned brother on a very simple ground. The orders in dispute before us are the consequential orders (dated 18-12-1982) of the WTO giving effect to the Tribunal's orders dated 2-5-1980 cancelling the protective individual assessments on these two assessees inasmuch as the inclusion of the selfsame assets in the hands of the respective families had become final. The assessments had been cancelled only on merits as there were no assets which were includible in the assessee's hands. Hence, the consequential orders thereto have merely to cancel the demand and refund the tax, if any, adjusted against the same. Instead, the WTO tried to find another reason for refusing the refund of the tax adjusted against the original demand. It was stated that the original assessments were bad and that the tax adjusted could not be refunded as these were collected under the Voluntary Disclosure Scheme. But the stage for taking such an argument was long since past. Inasmuch as the Tribunal's orders were not taken up ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
