9911796707
TMI Blog2012 (4) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... or the assessment years 1994-95 to 1996-97 have not been validly re-opened? 2. Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in holding that notices under section 143(2) were not issued within twelve months from the end of the month in which the return was filed in response to the notice under section 148, which finding is contrary to facts on record, and, therefore, the orders of reassessment were invalid without noticing that the notice under section 143(2) have been actually issued within the time prescribed under the proviso to the said section contrary to the facts on record? 3. Without prejudice to question No.2 above, whether on the facts and in the circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en residing in India permanently. 3. During his employment in UNICEF outside India, he had earned considerable sums of money by way of salary and had remitted the same in India in foreign exchange. The investments had been made mainly in bank deposits. The core question that arose before the Assessing Officer was, whether the assessee could be considered as a Resident or Non-Resident Indian and consequently, he would have the tax benefit under section 115E or under section 115H of the Income Tax Act. The assessee filed return of income claiming tax benefit under Section 115 E /115 H of the Income Tax Act, 1961. The same was processed under Section 143(1)(a) of the Act. Later, the Assessing Officer reopened the assessment on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal has correctly applied the provisions of 115 E of the Act and allowed the case of the assessee. He therefore, contended that the order of the Tribunal has to be confirmed. 6. Heard the learned counsel on either side and perused the materials available on record. In respect of question of law Nos.1 to 3 are concerned, both counsel fairly state that the issue is covered by the Apex Court judgment in favour of the Revenue in the case of Assistant Commissioner of Income Tax Vs. Rajesh Jhaveri Stock Brokers P. Ltd. ( (2007) 291 ITR 500). Following the above judgment, we answer the above questions of law Nos.1 to 3 in favour of the Revenue and against the assessee. 7. As far as question of law Nos.4 and 5 are concerned, it is the claim of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Income Tax Act, 1961. So, the Tribunal held that the status of the assessee is "Not Ordinarily Resident". It is pertinent to note that the assessee in his original return declared his status as "Resident". Therefore, the Assessing Officer denied the benefit. The real status of the assessee cannot be denied merely the assessee made a wrong declaration when he satisfied all the conditions. Therefore, the Tribunal, applying the scope of the provisions of Section 6(6)(a) of the Act, given a categorical finding that the status of the assessee is "Not Ordinarily Resident" during the relevant assessment year and also upto the assessment year 2001-02. Because of the status of the assessee is 'Not ordinarily resident' during the year, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; any income from investment or income from long-term capital gains of an asset other than a specified asset ; (b) income by way of long-term capital gains, the tax payable by him shall be the aggregate of - (i) the amount of income-tax calculated on the income in respect of investment income referred to in clause (a), if any, included in the total income, at the rate of twenty per cent ; (ii) the amount of income-tax calculated on the income by way of long-term capital gains referred to in clause (b), if any, included in the total income, at the rate of ten per cent ; and (iii) the amount of income-tax with which he would have been chargeable had his total income been reduced by the amount of income referred to in clause ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d been opened with the inflow of the original Foreign exchange transferred to India as approved by the Reserve Bank of India. Under these circumstances, the assessee must be a Non-Resident Indian. This question was considered by the Assessing Officer, who had gone by the declaration of the assessee made in terms of section 115H of the Act and consequently, impliedly, negatived the claim of tax benefit under section 115E of the Act. This question was considered by the Tribunal, which held that merely because a declaration was made by the assessee due to ignorance of law, it would not nullify the entitlement of a Non-Resident Indian. Factually, the Tribunal found that the assessee, at the time of filing the returns, was a "Non-Resident Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X
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