2022 (11) TMI 530 - AT - Income Tax

Income chargeable to tax in India - Non-residents - deposits made in the bank account - taxability u/s 5(2) - HELD THAT - Appellant was born in India in 1975 and became non-resident in A.Y. 2002-03 when he was 25 years old and not four years as held by the learned Assessing Officer. It is also stated by the assessee that he was never a partner in any firm in India. This data and statement of facts was not rebutted by the learned Assessing Officer. Further, these facts are also not doubted that assessee is employed in Belgium after he became a non-resident. Assessee also denied that he was ever a beneficiary of any discretionary trust. Therefore, it is apparent that all the allegation made in the assessment order are without any basis or evidence available with the learned Assessing Officer. If an income is to be taxed in the hands of non-resident assessee under Section 5(2) of the Act, then the burden is on the ld. AO to show that income of the non-resident assessee is falling within the definition of income chargeable to tax in his hands. No doubt, base note before us shows the name of the assessee, however, such base note could have been used for income tax in the hands of this assessee only if he would have been resident in India. That is not the case, because assessee is a non-resident accepted by the learned Assessing Officer for last several years i.e. almost 2 decades. The assessee has also produced his Passport which also do not show that he was resident in India in any of these years. It is also clear that foreign bank accounts belong to non-resident Indians cannot be illegal for the reason that non-resident Indians are bound to have their bank accounts outside India. Apparently, in this case, there is no evidence available with the learned Assessing Officer that there is an amount deposited in the HSBC bank by the assessee during the year. In fact, there is no deposit during the year. There is no evidence that such deposit is income of a non-resident under Section 5(2) of the Act. Assessee is assessed to tax year to year basis as non-resident on his Indian income. In view of this, we do not find any infirmity in the order of the learned CIT (A) in deleting the addition in the hands of the assessee for A.Y. 2006-07. Accordingly, the order of the learned CIT (A) is confirmed. - Decided in favour of assessee.

Issues Involved:
1. Validity of the reopening of assessment.
2. Whether the addition based on the 'base note' is justified.
3. Taxability of income in the hands of a non-resident.

Detailed Analysis:

1. Validity of the Reopening of Assessment:
The assessee challenged the reopening of the assessment on several grounds, including the non-application of an independent mind by the Assessing Officer (AO), lack of tangible material, and procedural lapses. The assessee argued that the reopening was based on mere suspicion and unauthenticated documents, specifically the 'base note' received from the French Government. The assessee contended that the AO failed to provide substantial evidence or tangible material to justify the reopening, making it a fishing enquiry rather than a legitimate reassessment. The Tribunal held that the reopening was invalid due to the absence of credible evidence and independent application of mind by the AO, aligning with the principles established in various judicial precedents.

2. Addition Based on the 'Base Note':
The AO made additions to the assessee's income based on the 'base note' indicating undisclosed foreign bank accounts. The assessee argued that the 'base note' lacked authenticity and was not corroborated by any other evidence. The Tribunal noted that the 'base note' alone could not be the basis for addition, especially when the assessee is a non-resident. The Tribunal emphasized that the burden of proof lies with the AO to establish that the income in the foreign bank account is sourced from India. The Tribunal found that the AO failed to provide any evidence linking the deposits in the HSBC bank account to income earned in India. Consequently, the Tribunal upheld the CIT(A)'s decision to delete the addition.

3. Taxability of Income in the Hands of a Non-Resident:
The assessee, being a non-resident, is chargeable to tax in India only if the income is received or accrues or arises in India as per Section 5(2) of the Income-tax Act. The Tribunal observed that the assessee had been a non-resident since AY 2001-02 and had no business connections in India. The Tribunal noted that non-residents are not obliged to disclose their foreign assets in the returns filed in India. The Tribunal held that the AO's assumption that the deposits in the HSBC bank account were sourced from India was baseless and not supported by any evidence. The Tribunal reiterated that the AO must prove that the income in the foreign bank account is taxable in India, which was not done in this case. Thus, the Tribunal confirmed the CIT(A)'s decision to delete the addition for both AY 2006-07 and 2007-08.

Separate Judgments:
The Tribunal delivered separate judgments for the husband and wife, Mr. Manish Vijay Mehta and Mrs. Urvi Manish Mehta, but the reasoning and conclusions were identical. The appeals filed by the AO for both the assessees were dismissed, and the cross-objections filed by the assessees were deemed infructuous.

Conclusion:
The Tribunal dismissed all the appeals filed by the AO and upheld the CIT(A)'s decision to delete the additions made based on the 'base note.' The Tribunal emphasized the need for credible evidence and independent application of mind in reopening assessments and making additions, especially in the case of non-residents.

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