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2019 (6) TMI 994 - AT - Income TaxAddition based on foreign HSBC bank accounts - information received by Govt. of India from the French Government under DTAA - income received or accrued in India - CIT-A deleted addition - bank accounts have been opened in the name of entities viz. Zetec Ventures Ltd and Zeke Limited based in British Virgin Islands and assessee is a Director in one of the two entities and the second entity was founded by assessee - The claim of the assessee was that none of the bank accounts in question have any relation or connection to India or to any of assessee s transactions in India HELD THAT - The onus was on the Department to prove that the particular asset in question was within the taxing provisions of the Indian Income Tax Act, 1961. The proposition has been arrived at, relying on the judgment of Parimisetty Seetharaman vs. CIT 1965 (4) TMI 21 - SUPREME COURT . Therefore, we proceed further on the premise that the onus was on the AO to establish that qua the three bank accounts in question assessee had the ownership and also the fact that the transactions therein have Indian connection. As per the CIT(A) there is no material or evidence to say that the assessee was connected with the bank accounts in question so as to justify an inference that any income thereof was received or deemed to have been received or accrued or deemed to have accrued in India. A perusal of the Grounds of appeal raised by the Revenue before us reveal that none of the findings recorded by the CIT(A) have been assailed on the basis of any material or evidence. In fact, the entire case of the Revenue, which had been adverted to at the time of hearing before us, is based on the presumption that the assessee has routed the money sourced from India through the three entities into the bank accounts in question. It is a well-settled proposition that a presumption, howsoever, strong cannot substitute an evidence and, therefore, in our view, the CIT(A) made no mistake in deleting the addition. What is required is to weigh and consider all evidences and material which are available on record. Considering the facts of the instant case and noting that there was complete absence of material, as noted by the CIT(A) too, we find that the application of test of human probabilities to sustain the addition would be unjustified - Decided in favour of assessee.
Issues Involved:
1. Deletion of addition of ?3,65,85,330/- by CIT(A). 2. Non-disclosure of HSBC accounts and sources of deposits. 3. Authenticity of the information received from the French Government under DTAA. 4. Assessee's failure to sign consent waiver form for further enquiry from Swiss HSBC Branch. 5. Onus of proof regarding the source of deposits and ownership of the bank accounts. Issue-wise Detailed Analysis: 1. Deletion of Addition of ?3,65,85,330/- by CIT(A): The primary dispute in the appeal concerns the deletion by the CIT(A) of an addition amounting to ?3,65,85,330/-, which the Assessing Officer (AO) had added to the assessee's income based on certain bank accounts allegedly connected to the assessee. The CIT(A) found no evidence to support the AO's presumption that the amounts in the three bank accounts belonged to the assessee. The CIT(A) concluded that the AO's addition was based on conjecture and surmises, stating, "suspicion howsoever strong it may be cannot take the position of proof." 2. Non-disclosure of HSBC Accounts and Sources of Deposits: The AO initiated proceedings based on information from the French Government under the Double Tax Avoidance Agreement (DTAA), indicating that the assessee had undisclosed foreign bank accounts in HSBC Private Bank (Suisse) SA. The AO argued that the assessee failed to provide details of these accounts and the sources of deposits during the assessment proceedings. The assessee, however, contended that he had no connection with the bank accounts in question and that the accounts were held by separate entities, Zetec Ventures Ltd. and Zeke Limited, registered in the British Virgin Islands. 3. Authenticity of the Information Received from the French Government under DTAA: The assessee challenged the authenticity of the "Base Note" received from the French Government, asserting that it was based on stolen data and could not be relied upon for tax liability. The CIT(A) noted that the onus was on the AO to prove the authenticity of the data and the connection of the bank accounts to the assessee. The CIT(A) found that the AO did not discharge this onus and could not presume the amounts in the accounts belonged to the assessee without corroborative evidence. 4. Assessee's Failure to Sign Consent Waiver Form for Further Enquiry from Swiss HSBC Branch: The AO required the assessee to provide bank statements, a consent waiver form, and evidence of the source of deposits in the questioned accounts. The assessee's resistance to furnishing these materials led the AO to presume that the assessee had routed money sourced from India through these entities to HSBC in Switzerland. The CIT(A) found this presumption insufficient without concrete evidence linking the assessee to the accounts. 5. Onus of Proof Regarding the Source of Deposits and Ownership of the Bank Accounts: The CIT(A) emphasized that the onus was on the AO to prove that the amounts in the three bank accounts were sourced from India and belonged to the assessee. The CIT(A) relied on the judgment of the Hon'ble Supreme Court in the case of Parimisetty Seetharaman vs. CIT, which states that the burden lies on the department to prove that a particular asset falls within the taxing provisions. The CIT(A) concluded that the AO failed to establish that the credits in the bank accounts were taxable under section 5(2) of the Income Tax Act, 1961, which governs the income assessable in India for a non-resident. Conclusion: The Tribunal upheld the CIT(A)'s decision, noting that the AO's addition was based on presumption without substantial evidence. The Tribunal also referenced a similar case, Shri Hemant Mansukhlal Pandya, where the addition was deleted under comparable circumstances. The appeal of the Revenue was dismissed, affirming that the onus was on the AO to prove the connection and source of the bank accounts, which was not satisfactorily discharged.
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