TaxTMI 
TaxTMI 
2026 (1) TMI 605
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....ated to the same assessee for various assessment years, therefore, all these by the assessee have been heard together and accordingly, adjudicated by a common order. 3. First we take the appeals of the assessee in ITA No. 1650, 1653 & 1654/Del/2024 [Assessment Years 2017-18 to 2018-19]. ITA Nos. 1650, 1653 & 1654/Del/2024 c [Assessment Years 2017-18 to 2018-19] 4. Brief facts of the case are that a search and seizure operation u/s 132 was carried out on 30.03.2021 and on subsequent dates at different business and residential premises of "Sanjay Bhaskar Group Companies and other". During the course of search various incriminating papers/documents were found and seized. Thereafter notice u/s 153A was issued on 15.11.2021, in response which, assessee filed his return of income, declaring total income of INR 2,23,910/- as was declared in the return filed u/s 139(1) of the Act. Statutory notices u/s 143(2) issued on 07.12.2021, followed by notices u/s 142(1) alongwith questionnaire were issued from time to time. In response to notices, there was no compliance by the assessee. Again, notice u/followed s 142(1) dated 19.12.2021 was issued. In response, assessee filed submissio....
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....rely on wrong understanding of Law and facts of the case. The Appellant was having the status "Non Resident" in the relevant Assessment year in view of clause (b) of explanation 1 to section 6(1)(c) the Income Tax Act, however the Ld. CIT(A) has incorrectly mentioned that the explanation (1) is not applicable in the case of Appellant. The order passed by the ld CIT(A) is erroneous and based on wrong understanding of law and facts of the case and without bringing anything material on record. 6- The confirmation of action of the Assessing officer by the Ld CIT(A) is entirely an exercise, based on unfounded presumption, assumptions, surmises and pure guess work which cannot take the place of evidence. 7- The appellant craves leave to add or alter one more ground(s) during the course of proceedings. 7. During the course of hearing vide letter dated 29.10.2024, assessee has filed an application for admission of additional grounds of appeal and for the admission of the same, relied upon the judgement of Hon'ble Supreme Court in the case of NTPC vs CIT 229 ITR 383 (SC) and submits that both the additional grounds of appeal are legal in nature and requires no furth....
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....during the search and seizure operation conducted, indiscriminate seizure of documents, computer data and loose paper was made. The assessment proceedings of the case were completed under section 153A r.w.s 143(3) of the Act at an assessed income of Rs. 9,31,480/- after making addition of Rs. 5,00,000/- under section 69A of the Act. Thereafter, the Ld/- CIT(A) has also confirmed the said addition vide order dated 21.03.2024. There are 4 matters before the Hon'ble Members which can be classified in two broad issues which are tabulated as under: Assessment Year Issue Involved AY 2017-18, AY 2018-19 & AY 2019-20 Alleged categorization of residential status as "Resident" whereas the appellant has claimed his residential status as "Non-Resident" AY 2020-21 Alleged addition on the basis of statement recorded under section 132(4) of the Act which had been retracted in due course, without any corroborating evidence to support such addition. Issues concerning AY 2017-18, AY 2018-19 & AY 2019-20: The facts of the cases in all the 3 AYs as mentioned above are similar, hence taking the first year i.e AY 2017-18 for our arguments: Reside....
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....onsideration. Submission against allegations made by the Ld/ - AO: Comparison between computation of number of days by the Ld/- AO & appellant forming part of assessment proceedings are tabulated as follows: Computation of Stay in India as per Assessment Order: TABLE 'A' S. No Departure from India Arrival in India No. of days outside India Remarks 1. 11-04-2016 16-04-2016 4 The Ld/- AO included both the days of arrival and departure in the computation ignoring the already set judicial view. 2. 25-04-2016 03-05-2016 7 3. 16-05-2016 20-05-2016 3 4. 30-05-2016 02-06-2016 2 5. 21-06-2016 24-06-2016 2 6. 12-07-2016 15-07-2016 2 7 26-07-2016 01-08-2016 5 8. 09-08-2016 16-08-2016 6 9. 22-08-2016 25-08-2016 2 10. 07-09-2016 28-09-2016 20 11. 02-10-2016 05-10-2016 2 12. 23-10-2016 27-10-2016 3 13. 05-11-2016 18-11-2016 12 14. 01-12-2016 18-12-2016 16 15. 23-12-2016 10-02-2017 48 16. 23-02-2017 02-04-2017 36 Total days when appellant was outside I....
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....nd 'to' are to be inevitably used for ascertaining the period though these words are not mentioned in the statute. Section 9 of the General Clauses Act is as under :- "(1) In any (Central Act) or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time to use the word "from", and, for the purpose of including the last in a series of days or any other period of time, to use the word "to". (2) This section applies also to all (Central Acts) made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887." 3.25 As per the General Clauses Act, the first day in a series of a day is to be excluded if the word 'from' is used. Since for computation of the period, one has to necessarily import the word 'from' and, therefore, accordingly, the first day is to be excluded. In the instant case, if the first day, i.e., 31-1-2005 is excluded then the period of stay will be 59 days. Since the period of stay will be less than 60 days, therefore, section 6(1)(c) will not be applicable and th....
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....ity card issued by the Government of UAE. (PB pg. 26-27) 4. Copy of Foreign Bank Account Statement from September 2016 to March 2017 (on sample basis) to establish receipt of salary from its Employer, Ardennes Projects DMCC. (PB pg. 40-48) The Ld/- CIT(A) has disregarded the aforesaid documents and alleged that the appellant has not been under a gainful employment to satisfy the criteria of Explanation 1 to Section 6(1)(c) of the Act. The question of "Employment outside India" has been examined by the Hon'ble Kerala High Court in the matter of Commissioner of Income-tax v. O. Abdul Razak [2011] 198 Taxman 1 (Kerala) wherein the Hon'ble Court while deciding the issue in favor of the taxpayer. Taking into consideration the CBDT Circular No. 346 dated 30.06.1982 and held that no technical meaning can be assigned to the word, "Employment" used in the explanation. The Hon'ble High Court has interpreted the term Employment in wide terms, stating that employment should not mean going outside India for purpose such as tourists, medical treatment, studies or the like. The relevant findings of the Hon'ble Kerala High Court in the aforesaid ....
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....ishant Kanodia [ITA no.2155/Mum./2023] 2. K. Sambasiva Rao vs. ITO, [2014] 42 Taxmann.com 115 (Hyd-Trib.) 3. ACIT vs. Jyotinder Singh Randhawa, [2014] 46 Taxmann.com 10 (Delhi- Trib.) 4. ACIT vs. Col. Joginder Singh, [2014] 45 Taxmann.com 567 (Del- Trib.) Arguments for AY 2020-21: In regard to the same, it is submitted that for AY 2020-21, the addition amounting to Rs. 5,00,000/- has been made to the income of the appellant without bringing any corroborative material on record which is unsustainable in law. Reliance is placed on the following judicial pronouncements: In the case of ACIT v. Shanker Nebhumal Uttamchandani [2024] 161 taxmann.com 536 (Surat-Trib.), it was held that: "7. We have independently examined the facts of the case. We find that the Assessing Officer has not recorded in the assessment order whether such image/ photo was received by assessee in WhatsApp image or it was sent. The source of image was not investigated by Assessing Officer. Assessing Officer nowhere mentioned whether such image was confronted to the assessee during the search action or his statement was recorded for such image. Thus, in a....
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....017 17-12-2017 13 12. 22-12-2017 04-01-2018 12 13. 21-01-2018 07-02-2018 16 14. 17-02-2018 07-03-2018 17 15. 12-03-2018 01-04-2018 19 Total days when assessee was outside india 173 Total No Of Days Stayed in India (365-173)= 192 Computation of Stay in India as per the Appellant (AY 2018-19): S. No. Date Of Entry In India Date Of Exit From India No. Of Days Stay in India Remarks 1 02-04-2017 30-04-2017 28 The appellate, relying on the judicial pronouncement of Hon'ble Karnataka High Court which has been followed by various benches of the Hon'ble Tribunal excluded the day of arrival in computing No. of days stay in India. 2 08-05-2017 14-05-2017 6 3 23-06-2017 06-07-2017 13 4 15-07-2017 30-07-2017 15 5 10-08-2017 14-08-2017 3 6 25-08-2017 04-09-2017 10 7 06-09-2017 07-09-2017 1 8 17-09-2017 30-09-2017 13 9 05-10-2017 20-10-2017 15 10 25-10-2017 03-11-2017 9 11 08-11-2017 03-12-2017 25 12 17-12-2017 22-12-2017 5 13 04-01-201....
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....Ld. CIT(A) held that the status of the assessee as "Resident". Ld. CIT(A) further observed assessee had not submitted copy of salary receipt from the employer i.e. DMCC, Dubai and as per bank statement, he has not received salary on regular basis from the employer and accordingly, Ld. CIT(A) held that Explanation (1) to section (6) of the Act, is not applicable in the case of the assessee since he was not found to be gainfully outside India and further as per provision of section 6(1)(c) of the Act, the assessee has been found resident in India therefore, Ld.CIT(A) upheld the status of the assessee as 'resident' which orders deserves to be upheld. He prayed accordingly. 10. Heard the contentions of both parties and perused the material available on record. From the facts, it transpired that for Assessment Years 2017-18 to 2019-20, the AO treated the assessee as 'resident' and for AY 2020-21 as 'non-resident'. The sole dispute is regarding calculation of period of stay in India during these three assessment years. As per AO, assessee had stayed more than 182 days in India in all the three previous years relevant to AYs 2017-18 to 2019-20 whereas as per ass....
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.... period of stay will be less than 60 days, therefore, section 6(1)(c) will not be applicable and the status of the assessee will be non-resident. We, therefore, accept the second alternate contention of the appellant and hold that the status of the assessee will be non-resident. 11. The CO-ordinate Bench of ITAT, Ahmadabad Bench in the case of Pradip Kumar Joshi vs ITO [2021] 133 taxmann.com 283 (Ahmedabad Trib.) has followed the aforesaid judgement of the Hon'ble Karnataka High Court and held as under. 9. It appears that though it has already been held by different benches that while counting days of stay in India for considering the status of "Resident" the days of arrival has to be excluded, the Ld. CIT(A) while counting days of stay in India purportedly counted the date of arrival of the assessee in India without giving any cogent reason thereon which in our considered opinion having no basis. 10. We do not find any reason to deviate from the ratio laid down by the Hon'ble Bangalore Bench as narrated therein above and relying upon the identical facts in the case in hand we exclude the date of arrival in counting the days of stay in India in the case of ....
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....ithin the meaning of Explanation to clause (e) of section 115C, who, being outside India, comes on a visit to India in any previous year, the provisions of sub-clause (c) shall apply in relation to that year as if for the words "sixty days", occurring therein, the words "one hundred and eighty-two days" had been substituted and in case of such person having total income, other than the income from foreign sources, exceeding fifteen lakh rupees during the previous year, for the words "sixty days" occurring therein, the words "one hundred and twenty days" had been substituted. Explanation 2.-For the purposes of this clause, in the case of an individual, being a citizen of India and a member of the crew of a foreign bound ship leaving India, the period or periods of stay in India shall, in respect of such voyage, be determined in the manner and subject to such conditions as may be prescribed. (1A) .... (2) ... (3) ... (4) ... (5) ... (6) .... 15. In the instant case the assessee was non resident since 1998 and he took up the permanent residence in UK for which a detailed chart showing yearwise residential status of the ....
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....ws: "7.3 With a view to avoiding hardship in the case of Indian citizens, who are employed or engaged in other avocations outside India, the Finance Act has made the following modifications in the tests of residence in India :- (i) & (ii) * ** (iii) Where an individual who is a citizen of India leaves India in any year for the purposes of employment outside India, he will not be treated as resident in India in that year unless he has been in India in that year for 182 days or more. The effect of this amendment will be that the test of residence in (c) above will stand modified to that extent in such cases." 7. What is clear from the above is that no technical meaning is intended for the word "employment" used in the Explanation. In our view, going abroad for the purpose of employment only means that the visit and stay abroad should not be for other purposes such as a tourist, or for medical treatment or for studies or the like. Going abroad for the purpose of employment therefore means going abroad to take up employment or any avocation as referred to in the Circular, which takes in self-employment like business or profession. So much so....
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....n that year for 182 days or more. The effect of this amendment will be that the 'test' of residence in (c) above will stand modified to this extent in such cases." Similarly the Central Board of Direct Taxes issued Circular No. 346, dated 30-6-1982, which reads as follows: "7.3 With a view to avoiding hardship in the case of Indian citizens, who are employed or engaged in other avocations outside India, the Finance Act has made the following modifications in the tests of residence in India: (i) & (ii) ** (iii) Where an individual who is a citizen of India leaves India in any year for the purposes of employment outside India, he will not be treated as resident in India in that year unless he has been in India in that year for 182 days or more. The effect of this amendment will be that the test of residence in (c) above will stand modified to that extent in such cases." 7. What is clear from the above is that no technical meaning is intended for the word "employment" used in the Explanation. In our view, going abroad for the purpose of employment only means that the visit and stay abroad should not be for other purposes such as a t....
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....#39;ble Karnataka High Court and Hon'ble Kerala High Court, we are of the view that the status of the assessee was "non-resident" for AY 2017-18 to 2019-20 as he was enjoying the status of Non-resident in terms of Explanation (e) to Section 115C and during these assessment years he was out of India for the purpose of employment. Therefore, we allow the additional grounds of appeal in all these three appeals taken by the assessee. 18. Since, we have already allowed the additional grounds of assessee, the other grounds of appeal raised by the assessee became academic. 19. In the result, all the three appeals for Ay 2017-18 to 2019-20 of the assessee are allowed. ITA No.1655/Del/2024 [Assessment Year 2020-21] 20. Brief facts of the case are that the assessment was completed u/s 153A r.w.s. 143(3) of the Act wherein an addition of INR 5 Lakhs was made by holding that assessee had received INR 5 Lakhs as advance against the sale of property as found in digital form in the mobile of the assessee. The AO has made the addition on the basis of the statement of the assessee wherein the assessee accepted the receipt of INR 5 Lakhs during the year under appeal. 21. Heard the....
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....ce to mention that except the statement in the letter, the AO has no other material on record to assess the income of Rs. 1,82,00,000/-. 11. It is settled proposition of law that merely on the statement that too also was taken in view of threat given in question No.36 as narrated by Mr. Gupta and the same sought to have been relied upon, there is no other material either in the form of cash, bullion, jewellery or document in any other form which can come to the conclusion that the statement made was supported by some documentary evidence. We have gone through the record and find that the CIT (A) has rightly observed as stated hereinabove, which was confirmed by the Tribunal." 24. The aforesaid judgement stood confirmed by the Hon'ble Supreme Court. 25. The Hon'ble Delhi High Court in case of CIT Vs. Harjeev Agarwal reported in 241 Taxmann199 (Delhi) held as under: "...A plain reading of Section 132(4) of the Act indicates that the authorized officer is empowered to examine on oath any person who is found in possession or control of any books of accounts, documents, money, bullion, jewellery or any other valuable article or thing. The explanation to S....