2019 (9) TMI 152 - AT - Income Tax

Protective additions - rental income - addition made in the hands of the company - assessee is the beneficial owner - HELD THAT - Both the companies have alleged to have earned the lease rental income for Assessment Year 2006-07. In one of the other share holders Mr. Ajay Kalsi in whose case in earlier year identical additions were made on protective basis. Furthermore, another beneficiary Smt Mala Kalsi, Such additions were also made being the share holder of those companies. All these additions were made on protective basis in their hands. In case of Smt Mala Kalshi the coordinate bench has already decided the issue deleting the above addition on protective basis as per order SMT. MALA KALSI AND VICE-VERSA 2017 (12) TMI 127 - ITAT DELHI . Further, in case of Shri Ajay Kalsi the coordinate bench has deleted the above addition as per order dated 05.12.2018 for Assessment Year 2006-07 to 2012-13. Issue is now squarely covered in favour of the assessee by the above addition. DR could not cotrovert the above fact that the issue is squarely covered by the decision of the coordinate bench in case of other share holders. In view of this fact respectfully following the decision of the coordinate bench where identical additions were deleted, we also direct the ld AO to delete the above protective additions in the hands of the assessee for Assessment Year 2006-07. Therefore, the appeal filed by the assessee for Assessment Year 2006-07 is allowed.

Issues Involved:
1. Determination of the residential status of overseas companies under Section 6(3) of the IT Act.
2. Taxability of income derived from overseas companies in India.
3. Validity of protective additions made by the Assessing Officer (AO).
4. Application of the doctrine of lifting the corporate veil.
5. Admissibility and relevance of statements recorded during the search.
6. Double taxation concerns.
7. Validity of additions made on account of unexplained cash and jewelry.

Issue-wise Detailed Analysis:

1. Determination of the Residential Status of Overseas Companies:
The AO argued that the overseas companies in which the assessee was a shareholder/beneficial owner were residents in India under Section 6(3)(ii) of the IT Act, based on seized documents, emails, and statements. The Commissioner of Income Tax (Appeals) [CIT(A)] found that the AO had accepted the status of these companies as non-resident in India. The CIT(A) noted that the AO had admitted that these companies were incorporated according to the prevalent laws of their respective countries and complied with all statutory provisions. Therefore, the CIT(A) held that the AO was not justified in treating these companies as residents in India.

2. Taxability of Income Derived from Overseas Companies in India:
The AO made substantive additions in the hands of the overseas companies and protective additions in the hands of the assessee. The CIT(A) observed that once substantive additions were made in the hands of the overseas companies, there was no reason to make protective additions in the hands of the assessee. The CIT(A) concluded that the AO's actions were self-contradictory and lacked clarity.

3. Validity of Protective Additions:
The CIT(A) held that the protective additions made by the AO were without any basis, as the AO had already made substantive additions in the hands of the overseas companies. The CIT(A) emphasized that the AO did not bring any substantial material or concrete evidence to justify the protective additions. The Tribunal upheld the CIT(A)'s decision, noting that similar protective additions made in the cases of other shareholders had been deleted by the coordinate bench.

4. Application of the Doctrine of Lifting the Corporate Veil:
The AO applied the doctrine of lifting the corporate veil to tax the profits of the overseas companies in the hands of the assessee. The CIT(A) found that the AO's observations were erroneous and out of context. The CIT(A) noted that the AO had accepted the overseas companies as separate legal entities and had referred their transactions to the Transfer Pricing Officer (TPO). The CIT(A) concluded that there was no justification for the AO to treat these companies as sham and make protective additions in the hands of the assessee.

5. Admissibility and Relevance of Statements Recorded During the Search:
The CIT(A) noted that the AO relied on statements recorded during the search to determine the residential status of the overseas companies. However, the CIT(A) found that these statements were taken under duress and were not corroborated by any substantial evidence. The CIT(A) emphasized that the AO did not bring any corroborative evidence to substantiate the statements and therefore, the statements were not relevant for making protective additions in the hands of the assessee.

6. Double Taxation Concerns:
The CIT(A) observed that the AO had made additions in the hands of the assessee on a protective basis, despite making substantive additions in the hands of the overseas companies. The CIT(A) held that this amounted to double taxation and was not justified. The Tribunal upheld the CIT(A)'s decision, noting that similar protective additions made in the cases of other shareholders had been deleted by the coordinate bench.

7. Validity of Additions Made on Account of Unexplained Cash and Jewelry:
The AO made additions on account of unexplained cash and jewelry found during the search. The CIT(A) deleted the additions, noting that the cash and jewelry had already been declared and taxed in the hands of the assessee's brother. The Tribunal upheld the CIT(A)'s decision, finding no merit in the AO's grounds for making the additions.

Conclusion:
The Tribunal dismissed the appeals filed by the revenue and upheld the CIT(A)'s order, deleting the protective additions made by the AO. The Tribunal also dismissed the cross objections filed by the assessee, as they became infructuous following the deletion of the protective additions. The Tribunal's decision was based on the coordinate bench's earlier decisions in similar cases involving other shareholders.

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