TaxTMI 
TaxTMI 
2024 (2) TMI 1566
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....hat the residential status of appellant was a non-resident Indian (NRI) during the relevant financial year is most unjust and unwarranted. Therefore, the order of Ld. CIT(A)/NFAC deserves to be quashed. 2. Under the facts and circumstances of the case and in law Ld. CIT(A) has further grossly erred in holding the re-opening in the case of assessee as being legal and correct, initiated on the basis of an incorrect information that of 'huge cash deposits made in his NRE account' despite the fact submitted during the course of appellate hearing in his written submission, along with an NRE account bank statement and a certificate from Bank showing that the said time deposits are NRE fixed deposits which were funded through foreign remittance not as a cash deposit. Appellant prays that such decision of Ld. CIT(A) being most unlawful and passed without appreciating the true and correct facts of the case of assessee deserves to be quashed. 3. That Ld. CIT(A) has further grossly erred in confirming the addition of Rs.86 lakh made by Id. AO by treating the deposits made in the NRE account maintained with the State Bank of Bikaner & Jaipur (Now SBI) as being unexpla....
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....vidual and has not filed return of income for the A.Y. 2015-16 against the notice u/s 148 issued him as discussed in the above paras. He never filed the ITR for the A.Y. 2015-16. As per the reasons/information recorded it has been found that the assessee has made unaccounted cash deposit of Rs. 86,00,000/- in the SBBJ during the year under consideration. Total amount comes at Rs. 86,00,000/ -. And the assessee did not compliance the notices issued till today. Based on that facts it is noticed that assessee has not offered the income on the amount of Rs. 86,00,000/- for the purpose of income tax. Thus, same is treated as un-explained/cash deposit, income of the assessee for the year under consideration. 4. Aggrieved from the above order of the Assessing Officer, assessee preferred an appeal before the ld. CIT(A). Apropos to the grounds so raised the relevant finding of the ld. CIT(A) is reiterated here in below :- "5.1 I have carefully considered the AO's viewpoint contained in the Assessment Order, the grounds of appeal, statement of facts made by the appellant and written submission provided by the appellant in the matter. 5.2 During the course of assessme....
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....atter have been found unverifiable in such circumstances. Thus, there is no alternate except framing the ex-party assessment in the case u/s 144 of the 1.T.Act1961 having treated the 7 income computed/assessed as here under- Income as no ITR filed Rs. Nil Additions: The unexplained cash credit/deposit to be taxed u/s 68 read with the section 115 BBE Rs. 86,00,000/- Total Taxable income as other source Rs. 86,00,000/- Being Unexplained cash deposit/credit of Rs. 86,00,000/- u/s 68 read with the section 11588E as discussed above in the order for the year under consideration the assessee is liable to pay penalty u's 271 (1)(c) on the aggregate amount of Rs. 86,00,000/- for which separate proceedings are being initiated. Being not filing the (TR u/s 139(1) of the IT Act 1961 for the year under consideration the assessee is liable to pay penalty u/s 271F as discussed above for which separate proceedings are being initiated. Being not compliance made by the assessee in response to the notice issued on 03.02.2023 u/s 142(1) as stating show cause notice/ the last opportunity, therefore, the is liable to pay penalty u/s 271(....
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....assessee did not reply this time also. The assessee is an individual and has not filed Return of Income for the A.Y. 2015-16 against the notice u/s 148 issued him as discussed in the above paras. He never filed the ITR for the A. Y 2015-16. As per the reasons/information recorded it has been found that the above named assessee has made unaccounted cash deposit of Rs.86,00,000/- in the SBBJ during the year under consideration. Total amount comes at Rs. 86,00,000/ -. And the assesse did not compliance the notices issued today. From the above facts it is noticed that assessee has not offered the income on the amount of Rs. 86,00,000/- for the purpose of income tax This is the unexplained/ cash deposit, income of the assessee for the year under consideration." 5.5 Ground no. 1 The notices were all issued to the registered email-ID of the appellant and the appellant could have replied to these from anywhere in the world. He could also have authorised someone to represent him in the assessment proceedings If the assessee fails to comply with terms of a notice issued, the Assessing Officer has to gather relevant material and to make the assessment of th....
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....ount maintained with SBBJ during the relevant year and asked to explain its source. But since he was a NRI and had also retired, the assessee was not habitual of checking his mails, and thus could not respond to the above show cause notice. Later an order u/s 148A(d) was passed on 25.03.2022, and the case was earmarked as being a case fit for re- opening u/s 147. Notice u/s 142(1) of the Act was then issued on 03.02.2023 followed with a show cause dated 01.03.2023 seeking explanation for source of Time deposit amounting to Rs. 86,00,000/- made through bank account with SBBJ. In the meantime (i.e. on 18.04.2022) the assessee after receiving the order passed u/s 148A of the Act, responded to the same via email addressed to: [email protected] (PB page 11-13) duly explaining the facts and submitting that, the said bank account with SBBJ (now SBI) was a NRE Saving account and the time deposit of Rs. 86 lacs were made out of remittances made in foreign currency in the NRE account and it was not a case of cash deposit at all. It was thus explained that the notice issued seeking explanation for source of Time deposit made thru NRE saving account being without jurisdictio....
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....t that the assessee was a NRI since last 30+ years and the bank account in which the TDR was made was a NRE saving account. The assessee humbly submits that since the assessee was a NRI and there was no source of income either earned, accrued or deemed to be accrued in India, no ITR was liable to be filed as per Indian Income Tax provisions (copy of passport is available at PB page 18 and the copy of passport for the relevant year is enclosed with this submission) The bank account through which it has been alleged that TDR amounting to Rs. 86,00,000/- has been made and the source of which has been alleged as being unexplained, is a NRE Saving account with SBBJ (now SBI) in which the assessee has been remitting his income earned arose and accrued in foreign country. Treating the credits made in this NRE Bank account as being unexplained is therefore absolutely beyond the scope of Indian Income tax Act. The NRE account being an account maintained in Indian Rupees for overseas income, one can repatriate all the funds kept in NRE account. It would not be irrelevant to mention that one cannot deposit cash or Indian rupees in a NRE account, thus the only way to fund a N....
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....this submission)) b. Copy of bank statement issued by SBI (PB Page 1 & 2) c. Certificate issued by SBI confirming that the relevant bank account was a NRE account and the remittances / credits were from overseas only (enclosed with this submission). The addition made and further confirmed by Ld. CIT(A) NFAC without considering all of the above documents submitted by the assessee during the course of appellate hearing duly substantiating that one the account was NRE account second the deposits were out of foreign remittance but not cash establish the complete ignorance of facts as well as arbitrary determination of appeal by Id. CIT(A). It may please be appreciated that the assessee being a NRI was not required to provide any details about his income earned, accrued and received outside India. The position being so, the credit in the NRE account is duly explained as being re-patriation of foreign income and since the re-patriation of foreign income does not fall under the scope of total income as per see 5(2) of the Act. the same cannot be added as his income as per the provisions of see 5 of the IT Act Act. Reliance is paced on the follo....
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.... so upheld by rejecting the bonafide explanation offered with documentary evidences, deserve to be deleted and the assessee prays accordingly. Reliance is placed on the following :- 1. CIT v. U.M. Shah, Proprietor, Shrenik Trading Co. [1973] 90 ITR 396 (Bom.) 2. Nemichand Kothari v. CIT (264 ITR 254)(Gau) 3. Divine Leasing ete Vs. CIT 299 ITR 268 (DEL) 4. 34 ITR 328 (MAD) & Ker HC in 117 ITR 371 5. Shri Vishnu Prasad, Jaipur vs DCIT (ITAT JPR) in ITA 1503/JP/2018 dated 15.02.2021 We also find it relevant to quote from letter dated 16.10.2023 (copy enclosed with this submission) issued to the assessee from the office of the Principal Chief Commissioner of Income Tax, Income Tax Department, Jaipur mentioning therein: "2. On verification of the facts stated in your complaints from the available records of the Department, it was found that information was received by the jurisdictional Assessing Officer which was required to be examined by him for ascertaining whether any income has escaped taxation. This substantiates that even CCIT, Jaipur has acknowledged the serious fault committed at the part of ld. A....
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....ed before to substantiate with the affidavit. The ld. AR of the assessee thus, filed an affidavit in support of his case, which reads as under :- "I Revindra Gaur having PAN AQAPG8790R solemnly declare the following :- 1. That I filed an appeal before CIT(A) against the order passed u/s 144/147 dated 15.03.2023 in may case for the AY 2015- 16 vide acknowledgement number 10884478004023 on 04.04.2023. 2. That during the course of appellate hearing before Id. CIT(A) I duly submitted a response on 5th September 2023 wherein I attached copy of the statement for the period 01.04.2014 to 31.03.2015 of may NRE Bank Account Number 61170253236 maintained with State Bank of India (then SBBJ) along with the certificate issued by bank confirming that the credits in said NRE bank account were out of the foreign remittances via wire transfers from outside India to India. 3. That the bank statement mentioned above was also filed by me at the time of filing appeal on 04.04.2023 in form 35 along with other documents as attachments." 8. As regards the finding of the ld. CIT(A) that the assessee has not supported any evidence in support of his case is incorrect a....
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..... The account is NRE account and the ld. AO has not done an exercise to collect the correct information from the bank and directly assessed the income and that too of Rs. 86,00,000/- as cash deposit. As regards the prayer of the ld. DR to set aside the matter, the same is not considered on account of the fact that the dispute is that the assessee has deposited the cash but in fact in the NRE account one cannot deposit the cash in Indian rupee but can deposit foreign currency. Since, it is not under dispute the residential status of the assessee before us, we are of the considered view that though the assessee has categorically submitted in his affidavit that the money is wired transfer in the account is disbelieved. Even if the same is considered that foreign currency is deposited then in that cash the same cannot be termed as income of the assessee alternatively also. The bench also noted that the assessee is a non resident since 30+ years even if the money deposited in foreign currency, considering the residential status of the assessee it cannot be considered as income. The bench noted from the bank statement that money is wired from outside India as it is evidently cleare from ....