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TMI Blog2013 (5) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... ven tankers which is not in dispute. Provisions of section 44AE, will only apply to the assessee who owns not more than ten goods carriages. Thus, in case of the assessee who is in possession of more than ten goods carriages, then by virtue of the provisions of sub-section (1) of section 44AE the deeming provision of section 44AE will not apply to the facts of the present case. Moreover, it has also not been disputed that the assessee has been maintaining regular books of account for the business of hire of eleven tankers which are also subjected to audit under section 44AB. On this ground also, the provisions of section 44AE will not apply in view of sub-section (7) of section 44AE. Against revenue. Exemption u/s 10(15) - whether CIT(A) erred in holding that in A.Y. 1999-2000 the assessee's status was that of R & NOR and allowed exemption u/s 10(15) - Held that:- As decided in assessee's own case assessee was out of India for more than 182 days in both the A. Ys. so he was not resident of India for that period. As far as employment is concerned, it is found that he had gone to Dubai as a Manager of a Dubai firm. The assessee had filed copies of the visa, passport, appointment lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his diary shows monthly cash withdrawal from various concerns of the assessee. The said page shows two kinds of withdrawal c.n 15.10.95, one at the top of the page and other at the lower half of the paco Vide Notice uls. 142(1) dated 23.2.2001, the assessee was asked to P nmish detail comment on the various books/diaries/loose paper folder identified and inventorised during the survey. But, this was not complied with. Again, a spacific reference of this particular page was made tc Vie assessee for explanation. But, in spite of specific request for explanation of above referred cash withdrawals, the assessee preferred not to furnish any explanation. It is important to mention that this diary is a diary written by the accountant of the group who handles the day-to-day accounts of the group. These cash withdrawals are also examined from the computerised accounts, whose floppies were seized during the course of searon arid i.t is observed that no such cash withdrawals appear on the corresponding date that is 14.10.1995. This page has also been considered in the background of submission given for the same page by the assessee's brother Atul M. Thakkar, in his own block assessment procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner (Appeals) given in the block assessment order have been reproduced by him in the impugned order. Thus, he held that once the substantive addition has been deleted on merits, the protective addition cannot be sustained. 5. Before us, the learned Departmental Representative, relying upon the findings of the Assessing Officer submitted that during the course of survey, it was found in the diary that there were certain withdrawals of cash which were not recorded in the books of account. These were nothing but utilization for household expenses from unexplained sources. Therefore, the addition even though has been deleted in the block assessment proceedings which is the subject matter of the dispute before the Tribunal and is pending, the same cannot be held to be a valid ground for deleting the addition in the regular assessment proceedings. 6. On the other hand, the learned Counsel submitted that, first of all, the addition has already made in the block assessment order wherein the issue has been discussed on merits both by the Assessing Officer as well as the Commissioner (Appeals), therefore, no protective addition is called for in the present appeal. Secondly, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total withdrawal made by the members of the family, whereas the assessee had strongly emphasized the point. Had the AO done this exercise, he himself would have reached to the conclusion that household expenditure incurred by the members of the family was sufficient. The Hon'ble Tribunal has vide its order dated 19.3.2002 (para 7) also deleted the addition made by the A0 on account of lower household." 8. From the above, it is clear that the Commissioner (Appeals), in the block assessment, has deleted the addition purely on merits. Even though this may be a subject matter of appeal before the Tribunal by the Department in the block assessment proceedings but that issue would be decided there only and not in the regular assessment proceedings wherein only protective addition has been made. Thus, the protective addition made by the Assessing Officer in the regular assessment order dated 30th March 2001, in our opinion, has no legs to stand. Consequently, the findings given by the Commissioner (Appeals) in this appeal are upheld. The grounds raised by the Revenue is treated as dismissed. 9. In the result, Revenue's appeal is treated as dismissed. We now take up Revenue's appeal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the provisions of sub-section (1) of section 44AE the deeming provision of section 44AE will not apply to the facts of the present case. Moreover, it has also not been disputed that the assessee has been maintaining regular books of account for the business of hire of eleven tankers which are also subjected to audit under section 44AB. On this ground also, the provisions of section 44AE will not apply in view of sub-section (7) of section 44AE. Thus, we do not find any infirmity in the findings given by the Commissioner (Appeals) and the same are hereby upheld. Accordingly, ground no.1, raised by the Revenue, is treated as dismissed. 15. Ground no.2, reads as under:- "2. On the fact and in the circumstances of the case and in law, the Ld. CIT(A) has erred in holding that in A.Y. 1999-2000 the assessee's status was that of R & NOR & relied upon the order of the CIT(A) for the block assessment period which is subject matter of further appeal by the department and allowed exemption u/s 10(15) of the Act for Rs.11,22,781/-." 16. The relevant findings of the Assessing Officer, while making the addition, read as under:- "During the course of search and seizure operation, evidences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be that of R & NOR and in the circumstances, the interest income received would be exempt under section 10(15) of the Act. This ground of appeal is, therefore, allowed." 18. Both the parties agree before us that the issue for our adjudication is covered in favour of the assessee in assessee's own case in ITA no.3400/Mum./2007, order dated 31st October 2008, in assessment year 2002-03. 19. After carefully considering the submissions of both the parties and on going through the findings of the Assessing Officer as well as the Commissioner (Appeals) and also the decision of the Tribunal cited supra, we find that this issue has been decided by the Tribunal in assessee's own case after observing and holding as under:- "9. We have considered the issue. The undisputed fact is that the assessee was not a resident in 9 out of 10 preceding years even though he was staying for more than 730 days in the 7 proceedings years as per the provisions of section 6(6), one of the conditions is enough to be satisfied if the assessee is to be treated as RNOR. In this regard the order of the CIT(A) for the block assessment dated 14.03.2006 in assessee's own case will throw considerable light on this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment year 2002-03 as held by the Hon'ble Lucknow Bench in the case or 108 ITD 8. Consequently, the assessee being Not Resident in India in 9 out of 10 previous years preceding relevant previous year he has to be considered as Resident and Not Ordinary Resident in India though he satisfy the first condition of section 6(6)(a) even though it do not satisfy the second condition of not being in India for 730 days or more in 7 years. Accordingly the status is to be considered as Resident but not ordinary Resident. Ground no.2 is allowed. Consequent to the determination of the status, the assessee is eligible for exemption of income under section 10(15). Accordingly ground no.3 is also allowed."
20. Consistent with the aforesaid view taken by the Tribunal in assessee's own case cited supra, we decline to interfere with the order so passed by the Commissioner (Appeals) in the matter as such. Consequently, ground no.2, raised by the Revenue is treated as dismissed.
22. In the result, Revenue's appeal is treated as dismissed.
22. To sum up, Revenue's appeal for A.Y. 1998-99 and A.Y. 1999-2000 are treated as dismissed.
Order pronounced in the open Court on 30th April 2013. X X X X Extracts X X X X X X X X Extracts X X X X
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