9911796707
TMI Blog2019 (4) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... the deposits made by the assessee in HSBC unless the source of deposits are from India, as the assessee is a citizen of USA and is a Non-resident in India within the meaning of the Income-tax Act, 1961 from 1993 onwards and even for the earlier years. (ii) The assessee has to prove that the source of deposit in the HSBC account was out of India and not from India. (iii) If the deposits were not made out of foreign source during the years for which assessments are made, but are carried over balances from NRI Bank account in 1999, then the assessee has to prove by producing relevant bank account to confirm that it was deposited into Indian bank account out of transfer of funds from foreign NRI Bank account. Remit the issue in dispute to the file of the Assessing Officer with a direction to pass fresh order in the light of our above directions - Appeals filed by the Revenue are allowed for statistical purposes. - ITA No.280/Coch/2018, ITA No.281/Coch/2018, ITA No.282/Coch/2018, ITA No.277/Coch/2018, ITA No.278/Coch/2018 And ITA No.279/Coch/2018 - - - Dated:- 19-3-2019 - Shri Chandra Poojari, AM And Shri George George K, JM For The Appellant : Smt.A.S.Bindhu, Sr. DR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee. The assessee submitted that the account statements of the account for the period were not available with him and filed a notarized affidavit authorizing the department to collect the necessary information from the HSBC (Suisse). 3. Regarding the source of the deposits and investments, the assessee submitted that the HSBC account (held jointly with this wife; was opened out of their savings from previous employment in Abudhabi and that the said account was closed in the year 2000. Other than this the assessee could not produce any concrete proof to link the source of the deposits and investments with his earlier employment income Hence a show cause notice was issued to the assessee on 15.03.2001 requesting to satisfactorily explain the source of the investments it HSBC account with full supporting proofs and clear one to one linking In the absence of satisfactory explanation substantiated with evidence it was proposed to treat the same as unexplained investment u/s. 69 of the I.T.Act. In response, the Authorized Representative of the assessee appeared on 24.03.2016 and reiterated the earlier submissions. No new fact was brought on record by the assessee and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad. The assessee has merely claimed all along that the investments were sourced from his and his spouse's employment savings from abroad and claims to have deposited those amounts into the HSBC account. However, this claim of the assessee is not acceptable, in the absence of sufficient supporting documents. 5. The only details furnished by the assessee during the course of the assessment proceedings are the certificates of employment issued by the previous employers (for the period upto 1987) indicating that he had worked abroad in Abu Dhabi till then and communications regarding the closing of the HSBC account. There is nothing on record to show that the assessee's employment abroad generated enough savings and that the said savings indeed had been routed to the HSBC account. Merely because the assessee was having some employment abroad during earlier periods, it does not lead to the conclusion that this could sufficiently source investments to the HSBC or count Further the veal' under investigation is A. Y.2006-2007 and there is nothing to link that the so claimed employment savings from the year 1987 has resulted in the fiduciary deposits and investments to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained investments u/s. 69 of the Income Tax Act, 1961. Hence, an addition of ₹ 2,35,01,408/- is made to the assessee's total income uls.69. Though the HSBC account is a joint one with the assessee's spouse, in the absence of sufficient evidence to prove the share of the assessee (who is the primary account holder) in the investments made, the entire amount is being added in the assessee's hand Based on the above, the Assessment for A.Y. 2006-2007 is finalized as under as per the provisions of the Act. Returned Income : Nil Additions : Unexplained investments u/s 69 as discussed above. Rs.2,35,01,408 Assessed Income Rs.2,35,01,408 4. Similar additions were made by the Assessing Officer in assessment years 2007-2008 and 2011-2012 and also in the hands of his wife Smt.Aleyamma Benjamin, since the accounts in HSBC Bank was a joint account. 5. Aggrieved by the assessments completed for assessment years 2006-2007, 2007-2008 and 2010-2011, both the assessees filed appeals before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.37 was deposited in NRE Account at Union Bank of India, Muvattupuzha on 03.10.2009 (copy of DO issued by HSBC Bank has been enclosed). I have gone through the submission and details filed by the appellant, and find them to be correct. Two kinds of persons can be assessed in India, One - a Resident, whose global income is taxable in India, and Second - if the source of any persons income is from India. In this case, there is no dispute about the residential status of the Appellant as he is clearly a Non- Resident. He has contended that he has no source of Income from India. The AO has taxed his deposits in HSBC Bank (Switzerland: in spite of the fact that he was a non-resident and has explained as to where he earned this income and why he deposited this amount in HSBC Bank. If the AO wants to tax this deposit, the onus is on the AO to prove that this income has been earned in India, which the AO has failed to do. Therefore, the appellant cannot be taxed either on the basis of i) Rule of Residence, or ii) Rule of source. The appellant, in his submission has contended that the amount in this account is being carried forward from year to year and figures have also not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) failed to consider the fact that the assessee had declared his nationality as Indian and his Indian domicile address located in Kerala in the HSBC Geneva, Switzerland account, indicating thereby that the source of the deposits therein was in India. 7. The learned CIT(A) failed to consider the fact that the HSBC, Geneva, Switzerland account are essentially secret account in which the assessee has been consistently making investments throughout the relevant assessment year. 8. For these and such other grounds that may be urged at the hearing, it is prayed that the order of the Assessing Officer be upheld and that of the order of the learned CIT(A) be cancelled. 7. The learned Departmental Representative strongly relied on the assessment order and the grounds raised before the Tribunal. The learned AR, on the other hand, strongly supported the order of the CIT(A). The assessee has filed a paper book consisting of 27 pages inter alia enclosing statement of account, American Passport of the assessees, certificate of employment from the year 1973, etc. 8. We have heard the rival submissions and perused the material on record. Admittedly the assessee is NRI and citi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,11,812.33 was deposited with NRE Account at Union Bank of India, Muvattupuzha on 03.10.2009. Copy of DD issued by HSBC is enclosed at page 14 of the paper book. Copies of HSBC Bank statements from 01.04.1999 are also enclosed at pages 15 to 20 of the paper book filed by the assessee. The assessee was also stated that from the HSBC bank statement, it is evident that the balances in the account are carried forward from the year 1999. While completing the assessment year A.Y. 2006- 2007, the monthly balances from November 2005 to March 2006 are added presuming that each month s balances are fresh deposits and the same is assessed as income. In the case of A.Y. 2007-2008, the monthly balances from April 2006 to February 2007 are added together again presuming that each month s balances are fresh deposits and the same is assessed as income. In making the addition, the Assessing Officer has relied on a statement in Excel Sheet. Copy of this statement is enclosed at page 27 of the paper book. It was submitted that each month the balances are carried over to the next month and such balances carried over are not fresh deposits. Alleging that the assessee had opened deposits with HSBC, Swi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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