TaxTMI 
TaxTMI 
2026 (8) TMI 361
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....both these appeals are identical, they were heard together and are being disposed of by way of this common order for the sake of convenience. 3. For the purpose of adjudication, we shall take BMA No.1/Ahd/2025 for AY 2021-22 as lead case. BMA No. 1/Ahd/2025 : AY 2021-22 4. The assessee has taken following grounds of appeal :- "1. The Ld. PDIT(Inv.) has grossly erred in law and on facts in assuming jurisdiction u/s.23 of the Act on the erroneous ground that the impugned assessment order is erroneous in so far as it is prejudicial to the interest of the revenue. 2. The Ld. PDIT(Inv.) has grossly erred in not appreciating that in order to invoke s.23, two conditions must be fulfilled viz. the impugned assessment order must be erroneous and that error must be prejudicial to the interest of the revenue. In the present case, Id. AO has passed the reasoned assessment order after analyzing all details and therefore there was no error in the impugned assessment order so as to justify action u/s.23 of the Act. Under the circumstances, the very assumption of power u/s.23 of the Act is unjustified and bad in law and therefore, order u/s.23 of the Act deserved to be q....
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....decision-making powers in the management of the trust was available to the beneficiaries. Since there are only three beneficiaries, the assessee could have one third of the total distribution and the assessee had decided to disclose one third of the corpus valuation as assessee's share. Similarly, the other beneficiary namely Shefali Chintan Parikh, Indian Resident, had also declared Rs. 8,55,63,200/- and paid tax of Rs. 2,56,68,960/- and penalty of Rs. 2,56,68,960/-. 6. Further to the declaration of the assets on 29.09.2015 of Rs. 8,55,63,200/- and payment of tax & penalty of Rs. 5,13,37,920/-, proceedings u/s 10 of the Black Money (UFIA) and Imposition of Tax Act, 2015 were initiated by the way of issue of notice dated 06.03.2021 by DDIT (Inv.)(2)(1), Ahmedabad. 7. In response to the notice issued, the assessee filed reply on 23.03.2021 submitting the e-filing acknowledgement. The relevant part of the reply is as under:- " ..... ...... 7. The assessee would like to refer to the definition of undisclosed assets located outside India as defined u/s 2(11) of the Act. It reads as: "Undisclosed asset means an asset (including financial interes....
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....ile Form 6 on 29.09.2015 and paid the taxes and the penalty of Rs. 8,55,63,200/- and Rs. 2,56,68,960/- respectively as determined by the Commissioner of Income-tax (TP1). It was submitted that the assessee had no bank account opened abroad except bank account No.444------979 in the Bank of India, London Branch, 63 Queen Victorious Street. It was submitted that the assessee has never received any capital distribution and never had any knowledge about the transaction. 9. For the sake of ready reference, the Minutes of the Meeting dated 03.07.2007 enquired upon by the DDIT (Inv.) and the reply of the assessee dated 14.06.2021 before the DDIT (Inv.) are reproduced below:- "NUTSHEL TRUST MINUTES OF A MEETING OF THE TRUSTEES HELD AT 45/45 LA MOTTE STREET. ST. HELIER JERSEY ON 3 JULY 2007 PRESENT DEREK V. LE BRUN } both representing Minerva Trust Company Limited- NEEL SAHAI } sole trustee Whilst reviewing the files it was noted that the Trustee Resolution Minutes covering the period inception 3 December 1990 to 24 May 2000 were missing from the Trust records. The Trustees decided that a Minute be completed ratifying the Tru....
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....GBP 1,871,011 (One million Eight hundred and Seventy One thousand, and Eleven pounds sterling) be and are hereby approved and ratified Such Beneficiaries and total capital distributions made for the period are as follows- Chintan Naunatial Parikh GBP1,824,918.00 Shefali Chintan Parikh GBP 8,150.00 Uttara Chintan Parikh GBP 37,943.00 UNQUOTED INVESTMENT FLUX INTERNATIONA LSA IT WAS NOTED That the Trust had purchased a Panamanian company in the name of Flux International SA such purchase had not been minuted. IT WAS RESOLVED That, the purchase of the following company be and is hereby approved and ratified. Flux International S.A. 2 shares of US$ each GBP1.00 Registered in Panama (100% owned) LOAN WITH ELUX INTERNATIONA LSA IT WAS NOTED That the Trust had entered into a loan with Flux International SA such loan had not been minuted. IT WAS RESOLVED That, during the period Inception to the year ended 31 December 2000 the company entered into a loan with Flux International SA, which as at the year ended 3 December 1999 stood at CGBP 1,093,041 (One million, Ninety Three Thousand, and Forry One thousand pounds sterling....
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....WAS RESOLVED That during the period Inception to the year ended 31 December 2006 the company entered into a loan with Henville Investments Limited which as at the year ended 31 December 2006 stood at GBP 5,994 (Five Thousand, Nine hundred and Ninety Four pounds sterling) and USD 1,000.000.00 (One Million US Dollars) Such loans being unsecured, interest free with repayment date unspecified IT WAS FURTHER RESOLVED That the above loan decisions and loan movements during the period Inception to 31 December 2006, be and are hereby agreed, confirmed and ratified. TERMINATION There being no further business the chairman declared the meeting closed Sd/- Derek V. Le Brun Chairman" "From: Chintan Navnitial Parikh PAN: AAUPP1376Q Chitrakut, Behind Cargo Ford Motors. Off C. G. Road, Ellisbridge, Ahmedabad-380006, Gujarat, India. Date: 14 June, 2021 To, DDIT/ADIT (Inv.), 2(1), Ahmedabad. Respected Sir, Sub: Reply to your notice for summons u/s 131, Notice No.ITBA/COM/F/17/2021- 22/1032913294(1) 1. With reference to the ongoing proceedings in the case of the assessee, he ....
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....15, hereinafter referred to as "the Act") on 29/09/2015, wherein it has provided all the details regarding its share in foreign asset, ie. beneficial interest in Nutshel Trust - Jersey. and has declared the fair market value of all the undisclosed assets at Rs. 8,55,63,192/- A copy of Form-6 dated 29/09/2015 filed before the then Principle Commissioner/Commissioner DIT, International Taxation 2, along with the valuation basis for Rs. 8,55,63,192/- is attached as Annexure 1 to our submission dated 23 March, 2021. The assessee further submits that, with regards to Form 6 as explained in the above Para, the office of the Commissioner of Income Tax (International Taxation) - 2 has duly assessed the application in Form-6 and has issued the intimation to the assessee, dated 27/10/2015, that it was eligible for declaration u/s 59 of the said Act on the total fair market value of disclosure of the assets to be Rs. 8,55,63,200/-. Your good self will appreciate that the Income Tax Office has intimated and accepted the fair market value as declared by the assessee in Form-6, of Rs. 8,55,63,200/-. As per the directions issued in the order, the assessee has also duly paid off the tax of Rs. 2,5....
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....about such transactions. The Assessee doesn't have any relations with the Trustees. 6.1 It is requested not to take any adverse action in the case in as much as: ~ That the assessee has no knowledge about any such minutes noting ever before then the very first time such photo copy of the minutes been shared by your good self office most recently. ~ That there is no signature of either of his or any of his family members on the said Minutes, which can suggest that the assessee or his family were ever knowing about such transactions. ~ That nothing in the minutes suggests that the transaction were carried by the assessee or were in knowledge of the assessee ever. It may be verified from the banking details of the assessee, such alleged capital distribution has never been received by assessee. There can't be a distribution of any asset/ income, if there is no corresponding end who would have ever received it. ~ That the alleged meeting has been recorded post demise of the assessees father, in absence of the person who was a settlor and who only can authenticate or answer about said transaction so even allegedly happened ~ T....
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....ted outside India" does not arise. Once it does not qualify as Undisclosed Asset, the proceeding initiated under this Act itself is uncalled for. Accordingly, it is prayed that the proceedings may be dropped. 8. The assessee hopes that from the above explanation, the position of assessee would be clear. In case your good self requires any further details/clarification the assessee will be highly obliged to furnish the same. Thanking You, Yours Faithfully, Sd/- Chintan Navnitlal Parikh" 10. On 12.11.2021, there has been change of incumbent and proceedings u/s 10 of Black Money (UFIA) & imposition of Tax Act, 2015 has been initiated by DDIT (Inv.), FAIU, Ahmedabad and the proceedings continued. Owing to the explanation of the assessee, the order u/s 10(3) of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 dated 02.05.2022 has been passed accepting the return of income filed by the assessee accepting the explanation offered by the assessee. 11. The DDIT (Inv.) issued another notice on 13.10.2023 asking the similar details which have been enquired into i.e. Trust in New Jersey, namely Nutshell Tr....
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....d and accepted the fair market value as declared by me in Form-6, of Rs. 8,55,63,200/-. The referred order is submitted for your ready reference, attached herewith vide Annexure - 3. e) As per the directions issued in the order, I have also duly paid off the tax of Rs. 2,56,68,960/- and penalty amounting to Rs. 2,56,68,960/-. The said payment has been made on 23/12/2015 through Challan No. ITNS 284, the Challan ID No. being 02228332312201500285. Copy of challan is also submitted, attached herewith vide Annexure - 4. f) It is further submitted that the details as provided by me has been accepted by the Office of the Commissioner of Income Tax (Transfer Pricing 1). The office has also issued acknowledgement dated 13/01/2016, of undisclosed foreign asset through Form 7 to me to signify its approval in relation to the same. A copy of Form 7 is attached herewith vide Annexure-5" 12. Subsequent to the completion of the assessment on 02.05.2022, the Ld. PDIT (Inv.), Ahmedabad issued show-cause noted dated 13.03.2025. The said show-cause notice reads as under:- "GOVERNMENT OF INDIA MINISTRY OF FINANCE INCOME TAX DEPARTMENT PDIT (Investigation....
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....re of Trust, you have received direct benefits in the form of Capital Distribution from Nutshell Trust on various dates. The total amount (in INR) received in different AYs is as under. Assessee Name AY Date Amount Distributed Exchange Rate Amount (INR) Chintan Navnitial Parikh 2016-17 23.12.2015 $1,79,000 66.0586 Rs. 1, 18,24,489.40 2017-18 27.09.2016 GBP2,00,000 86.4068 Rs. 1,72,81,360.00 22.11.2016 GBP2,66,667 85.0472 Rs. 2,26,79,281.68 03.03.2017 GBP1,66,667 81.8728 Rs. 1,36,45,493.96 Therefore, you have received total GBP 7,53,675 (Rs. 6,54,30,623/-) in A.Y. 2016-17 & Α.Υ. 2017-18. 2.1 A company named 'Silver Spire Incorporated' was also owned by the Nutshell Trust and was mainly used for investing & holding foreign properties. The source of funds for this company has been nature unsecured and interest free loan received from time to time from Nutshell Trust. The source from which the company is deriving its income appears to be from bank interest and rental income of the properties. After the closure of Nutshell Trust....
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....sure for AY 2016-17 till 2018-19 3 Barclays Pvt Clients International Ltd Minerva Trust Company Ltd (beneficial Owner Chintan N. Parikh, Shefali Parikh, Krishna Chintan) 73793737 Prior to AY 2012-13 AY 2016-17 till AY 2018-19 Nondisclosure for AY 2016-17 till 2018-19 Therefore, you are an assessee in default as per the provisions of section 43 of the Act. 3. In view of the above, it appears that the disclosure provided u/s 59 of the Black Money (UFIA) and Imposition of Tax Act, 2015 by you and your family members in respect of foreign assets and income are found to be in contradiction to the details offered under schedule FA of the disclosure requirements of Income-tax return for the period from A.Y. 2012-13 to A.Y. 2015-16. 4 In view of the factual matrices stated in the preceding para, it is evident that the assessment order passed by the AO u/s 10(3) of the Act for the A.Y 2021-22 on 02.05.2022 has been passed without proper inquiry, verification of the facts of the case and applying appropriate provisions of law. Therefore, it rendered that the assessment order is erroneous and prejudicial to the interest of revenue within the mea....
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....ial Parikh had passed away on 03.03.2006, Prior to that, the assessee was completely unaware of the fact that he was a beneficiary in any foreign-based Trust, let alone Nutshel Trust. 3. Lately post demise of his father, the assessee came to know about the existence of such Trust settled by his late father and his beneficiary interest in the same. The assessee came to know that his family is the beneficiary of a Discretionary Trust named "Nutshel Trust". As per our understanding, the trust has always been managed by an independent trusteeship company in Jersey. This, being a discretionary trust, the share of each beneficiary is not determinable. Also, the beneficiaries have no decision making powers of whatsoever nature in the management of the trust. With an assumption that in the ultimate corpus when distributed, the assessee will have one third of the total distribution, the assessee decided to disclose one third of the corpus valuation as his beneficiary share. Thereby, with all bonafide intention and belief, the assessee has disclosed the details pertaining to the foreign asset through Form-6 (u/s 59 of Black Money (UFIA) and imposition of Tax Act, 2015, hereinafter r....
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.... 444115140002979 This is a joint A/c with the following holders: Shefali C. Parikh Krishnachintan C. Parikh Bank of India London Branch, 63, Queen Victoria Street, London - EC4N4UA 5.1 Assessee reiterates his humble submission that the trust has been settled by his Lt. father and he was never aware about such trust. Post demise of his father, he came to know about the existence of such Trust settled by his late father and his beneficiary interest in the same. The assessee has with all bona-fide intention and as to buy peace of mind only, disclosed the details pertaining to the foreign asset through Form-6 (u/s 59 of Black Money (UFIA) and Imposition of Tax Act, 2015 and paid taxes even on capital receipt and paid penalty on the fair market value of all whatever assets been held by Nutshell Trust as at 1ª July 2015. 5.2 Now, the assessee has been asked about the transactions so reported in the minutes for the capital distribution over a period from the inception of the trust till 31 December 2006. It is again reiterated that the assessee has never received such alleged capital distribution and didn't ever had any knowledge about such....
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....capital distribution contended to have happened over a period of year 1990 to 2006, which itself raises a question on its authenticity. Noting which are not specific, are vague & distant can't be used against the assessee. 7.1 The assessee would like to refer to the definition of undisclosed assets located outside India as defined u/s 2(11) of the Act. It reads as: "Undisclosed asset means an asset (including financial interest in any entity) located outside India, held by the assessee in his name or in respect of which he is a beneficial owner, and he has no explanation about the source of investment in such asset or the explanation given by him is in the opinion of the Assessing Officer unsatisfactory," 7.2 The assessee at this juncture would like to state that the beneficial interest in Nutshel Trust has been disclosed and taxes and penalty have been paid on the same. Also, later on in all subsequent years, due disclosure being made in return of income as well as Schedule FA therein on a year to year basis. Considering a detailed explanation provided in the above paras, the question of this investment being characterized as "undisclosed asset locat....
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....ent to state that the basis of disclosure of the assets including their fair valuation was done in compliance with the provisions of the Act and clarifications vide circulars, specifically the following point, which was relevant for the case of the assessee, considering that the settler of the Trust had passed away: The clarification to question 4 of the Circular No. 15 of 2015 titled "Clarifications on Tax Compliance for Undisclosed Foreign Income and Assets" issued by the CBDT on 3rd September 2015. under which we were advised to make full disclosure, provided as follows: "... Further, where the settler of the trust has passed away, the beneficiary of the trust may make a declaration in respect of his share in the assets of the trust. In case the beneficiary is a minor, his guardian may file the declaration on behalf of the minor. The assets of the trust shall be valued as per the Rule 3(1)(g) as in the case of AOP. In this case first the valuation of shares of the company is to be made as per rule 3(1)(c) and then the value of net assets of the trust shall be determined. Where the assets of the trust have been declared under Chapter VI of the ....
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....ct. 5.2 In this regard, it would be pertinent to note that throughout his life the assessee never had any bank account anywhere outside India till 2015. Then, an account with Bank of India, London Branch was opened on 3rd June, 2015, only for the purpose of making remittances under LRS, which is held by the assessee jointly with his wife MRs. Shefali Parikh and his son Mr. Krishnachintan Parikh, Interest earned in this account is offered for taxation and the account is disclosed in Schedule FA in ITRs by each joint account holder. Another Bank account with ICICI Bank, London Branch was opened by the assessee later in July 2022, jointly with his wife and his son only for the purpose of dealing with LRS funds. Interest earned in this account is offered for taxation and the account is disclosed in Schedule FA in ITRs by each joint account holder. Apart from the above two, the assessee has never held any other bank accounts abroad. 6. Point no. 3 of the notice: In view of the above facts, it is submitted that there is no contradiction between the disclosure u/s. 59 of the Black Money Act and the details mentioned in Schedule FA of the Return....
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....est of Revenue. The PDIT (Inv.) held that the accounts opened by the Trustee and Trust have not been disclosed by the assessee as he was the beneficiary of the Trust. The Ld. PDIT has also held that though the assessee had never been a trustee, he should have disclosed the foreign bank accounts where he held beneficiary interest. The Ld. PDIT further held that the assessee, "in his reply to the show-cause notice, has also mentioned about two more foreign bank accounts 1) with Bank of India, London Branch (opened on 3rd July, 2015) and 2) with ICICI Bank, London Branch (opened in July, 2022). The AO is directed to verify whether the all these bank accounts are reported from time to time in Schedule FA of the Income-tax return filed by the Assessee for respective years or not and take suitable action as per the Act". The Ld. PDIT concluded the order holding that Section 23 of the Act stipulates that upon examination of the records of any order passed under this Act, if the Ld. PDIT is satisfied that the order is erroneous in so far as it is prejudicial to tie interests of the revenue then he may, after giving the assessee an opportunity of being heard, revise the order. The Ld. PDIT ....
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....tails of trusts created outside India whether as settlor, trustee or beneficiary. f) Any other income derived from source outside India 20. Any information pertaining to the foreign asset has to be filed in the revised Income-tax return u/s 139(5) of the Income-tax Act as per the existing provisions. The provisions for further condonation of delay is as per the Section 119(2)(b) of the Act, the powers vested in the Board. 21. Assessment and the procedures of the assessment under BM Act have been laid down in Section 10 of the Act. The process of assessment of foreign income and asset shall comprise of the following steps : - a) Notice to produce documents or evidence - Section 10(1) b) Inquiry in respect of undisclosed foreign income and assets - Section 10(2) c) Assessment of undisclosed foreign income and assets - Section 10(3) d) Best judgement assessment- Section 10(4) 22. After completion of the assessment, the provisions for revision of the assessment are detailed u/s 23 of the BM Act. The said provisions read as under:- "23. Revision of orders prejudicial to revenue.- (1) The Principal Commissioner or th....
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....r verification which, should have been made; or (b) the order has not been made in accordance with any order, direction or instruction issued by the Board; or (c) the order has not been passed in accordance with any decision, prejudicial to the assessee, rendered by the jurisdictional High Court or the Supreme Court in the case of the assessee or any other person under this Act or the Income-tax Act. (10) In this section, "record" shall include all records relating to any proceeding under this Act available at the time of examination by the Principal Commissioner or the Commissioner." 23. In the backdrop of these provisions, the provisions relating to revision u/s 263 of the Income-tax Act and the parity thereof are examined. The provisions of Section 263 are as under:- "Revision of orders prejudicial to revenue. 263. (1) The Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer ......, ...... is erroneous in so far as it is prejudicial to the interests ....
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....eby declared that an order passed by the Assessing Officer or the Transfer Pricing Officer, as the case may be, shall be deemed to be erroneous in so far as it is prejudicial to the interests of the revenue, if, in the opinion of the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner,- (a) the order is passed without making inquiries or verification which should have been made; (b) the order is passed allowing any relief without inquiring into the claim; (c) the order has not been made in accordance with any order, direction or instruction issued by the Board under section 119; or (d) the order has not been passed in accordance with any decision which is prejudicial to the assessee, rendered by the jurisdictional High Court or Supreme Court in the case of the assessee or any other person. .... (2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. (3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case....
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.... It was also submitted that the trust had been settled in Jersey, Channel Islands by the assessee's late father Mr. Navnitlal Chandulal Parikh since 03.12.1990. Мг. Navnitlal Parikh, an Indian resident, was the settlor of the above trust without having any beneficial interest of his own or of his spouse, and passed away on 03.03.2006. The trust was since managed by an independent trusteeship company in Jersey. It was also submitted by the assessee that being a discretionary trust, the share of each beneficiary is not determinable. Also, the beneficiaries have no decision-making powers of whatsoever nature in the management of the trust. On 06.03.2021, the Ld. DDIT (Inv.) has issued summons u/s 131(1A) of the Income-tax Act and made specific enquiries about the assessee being the beneficiary of the "Nutshel Trust" and recipient of income and capital distribution during the period of inception of the Trust to 31.12.2006 as recorded in the Minutes of the Meeting of the Trustees held on 03.07.2007. While issuing the reminder on 13.05.2021, the DDIT (Inv.) has reiterated that the information with the Revenue has been supplied to the assessee and the assessee has duly rep....
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....s: ➤ CIT vs. Nirma Chemicals Works (P.) Ltd. - 309 ITR 67 (Guj) ➤ Gujarat Power Corporation vs. ACIT-350 ITR 266 (Guj) ➤ Rayon Silk Mills vs CIT - 221 ITR 155 (Guj) ➤ Hari Iron Trading Co. v. CIT [2003] 263 ITR 437 (P&H) ➤ CIT v. Gabriel India Ltd. [1993] 203 ITR 108 (Bom) ➤ CIT vs. Vikas Polymers - 341 ITR 537 (Del) ➤ CIT vs Honda Siel Power Products - 333 ITR 547 (Del) 29. Further, it is settled law that if two views are possible as regards a particular issue and AO adopts either of two such views, then PDIT cannot invoke jurisdiction u/s 23 of BMA (identical to S.263 of IT Act). Mere fact that different view could have been taken doesn't justify proceedings u/s 23 of BMA. Reliance is placed on the followings: ➤ Malabar Industrial Co. Ltd. vs. CIT-243 ITR 83 (SC); ➤ Kwality Steel Suppliers vs. CIT-395 ITR 1 (SC); ➤Mehsana Dist. Co-op. Milk Producers Union-263 ITR 645 (Guj) ➤CIT vs. D. P. Karia -266 ITR 113 (Guj); ➤ CIT vs. Arvind Jewellers - 259 ITR 502 (Guj); ➤ Sir Do....
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....r VI of the Act and tax along with penalty has been paid, the value of the asset so declared shall not be chargeable to tax in the event of distribution of such assets to the beneficiaries. 34. In the instant case, the assessee has valued the assets of the Trust at Fair Market Value as per Rule 3(1)(c) and offered the amounts before the Ld. CIT (TP), paid taxes thereof which has been subsequently assessed by the DDIT. The Ld. PDIT (Inv.), while alleging that the assessee received further more funds, has not brought anything on record as to where the funds have been parked. At the same time, the same information which has been relied upon has been a part of the record duly examined by the DDIT. Further, the Ld. PDIT has also held that the assessee had two foreign bank accounts, one with Bank of India, London and another with ICICI Bank, London and directed the Assessing Officer to verify whether all these bank accounts were reported in the Schedule FA. However, the facts on record clearly proves that these accounts have been duly disclosed in the Schedule FA in ITRs by the assessee. There was no need to invoke provisions of Section 23 to examine the record which are already part ....