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 under Section 80 HHD of the Income Tax Act. The issue arose for the assessment year 1996-97. During the year respondent-assessee made declaration under the Voluntary Disclosure of Income Scheme. In fact, in the first assessment it is seen that tax is demanded after excluding the declared income in terms of Section 68 of the Finance Act, 1997. Relief under Section 80 HHD was also granted by reckoning the VDI amount of Rs.40,13,000/- also as part of the gross income. However, later the Assessing Officer invoked powers under Section 147 and reworked relief under Section 80 HHD by excluding VDI amount of Rs.14.13 lakhs from the gross total income. The first appellate authority reversed this and the Tribunal confirmed it. It is against this order the Revenue has filed the appeal. We have heard Senior Standing Counsel for the appellant and Adv. Sri.P.Balakrishnan appearing for 2 the respondent. 2. Revenue can succeed only if it is shown that the amount covered by the VDIS was not included in the total income of the previous year. On the other hand, in the original assessment itself the Assessing Officer has excluded the VDIS amount in the computation of tax liability. In other words, the department has accepted the position that the VDIS amount is not included in the total gross income and so much so, there is no scope for excluding the same while computing relief under Section 80 HHD. We, therefore, dismiss the department's appeal. C.N.RAMACHANDRAN NAIR Judge K.SURENDRA MOHAN Judge pms