2010 (7) TMI 651 - AT - Income Tax

Residential status - assessee was a Resident as he satisfies one of the conditions for arriving the status of the assessee for this assessment year under appeal - it clearly showed that the emigration entries specify the assessee as a tourism visa and short visit with an endorsement not valid for employment - Thus, on this issue Revenue succeeds Regarding unexplained deposit - there was a difference in the statement given earlier and subsequently - assessee has explained the source, identity and capacity of the donor for remitting the amounts and also convincing explanation has been furnished regarding the nature and source with supporting evidences and therefore assessment u/s. 68 is incorrect and unwarranted and therefore deserves to be deleted If the Department wants to probe further there must be some material to be with the Department to brush aside the well founded explanation offered by the assessee - In the result, appeal of the Revenue and the Cross Objection of the assessee are partly allowed

Summary

Issues:
1. Residential status of the assessee for the assessment year.
2. Taxability of unexplained deposits under section 68 of the Income Tax Act.

Residential Status Issue:
The appeal concerns the residential status of the assessee for the assessment year. The Tribunal initially allowed the appeal of the Revenue, dismissing the Cross Objection of the assessee. The High Court dismissed the appeal, leading to a Review Petition. The Review Order emphasized that if there are mistakes in the findings, the petitioner can move for rectification. The Tribunal then recalled its previous order and scheduled a hearing to consider the matter on merits. The dispute revolves around whether the assessee is a "Resident" or "Non-resident." The Assessing Officer accepted the Non-Residency status in the Wealth-tax assessment, but subsequent rectifications led to the status being assessed as 'resident.' The Tribunal, considering various arguments and evidence, concluded that the assessee was a 'Resident' during the relevant assessment year, upholding the order of the Assessing Officer.

Taxability of Unexplained Deposits Issue:
The second issue pertains to the taxability of unexplained deposits under section 68 of the Income Tax Act. The Assessing Officer treated a significant amount as unexplained deposits under this section. The assessee claimed it as a gift from their uncle, but the Assessing Officer did not accept this claim, resulting in the assessment of the amount as unexplained deposits. The Tribunal reviewed the evidence, including confirmation letters and certificates, to establish the source, identity, and capacity of the donor for the remitted amounts. Ultimately, the Tribunal found that the assessee had sufficiently explained the nature and source of the deposits, refuting the application of section 68. The Tribunal considered the changing stands of the assessee and the evidence provided, concluding that the addition as unexplained deposits was unwarranted. The Tribunal upheld the findings of the CIT(Appeals) on this issue, allowing the ground in the cross objection related to this matter.

In summary, the judgment addresses the residential status of the assessee and the taxability of unexplained deposits under section 68 of the Income Tax Act. The Tribunal's detailed analysis and consideration of evidence led to decisions favoring the Revenue on the residential status issue and the assessee on the taxability of unexplained deposits issue.