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TMI Blog2019 (4) TMI 2003X X X X Extracts X X X X X X X X Extracts X X X X ..... and accordingly we uphold the same by dismissing the appeal of the Revenue. - ITA No.7405, 5947, 1324/M/2016, 1323/M/2017 - - - Dated:- 30-4-2019 - SHRI MAHAVIR SINGH AND SHRI RAJESH KUMAR, JJ. Appellant by : Shri Biren Gabnawala, A.R. Respondent by : Shri Asghar Zain V.P., D.R. ORDER Rajesh Kumar, J. The above titled four appeals have been preferred by the Revenue against the orders dated 15.06.2016, 28.10.2016 08.08.2016 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment years 2006-07 2007-08. ITA No.5947/M/2016 (A.Y. 2006-07) 2. The grounds raised by the Revenue are as under: 1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is correct in deleting the addition of ₹ 2,33,92,362/- being the peak balance lying in the applicant's HSBC Private Bank (Suisse) SA, Geneva made by the AO. 2. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is agreeing to the contention of the Assessee that it is fabricated/manufactured data with some malafide intention, and has ignored the fact that the assessee did not gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tored. 8. The Appellant craves leave to amend or alter any ground or add a new ground which may be necessary. 3. The only effective issue raised by the Revenue in the various grounds of appeal is against the deletion of addition of ₹ 2,33,92,362/- by Ld. CIT(A) as made by the AO on the basis of peak balance lying in assessee s HSBC Private Bank, (Suisse) SA, Geneva. 4. The facts in brief are that the Government of India received information from French Government under DTAA in exercise of its sovereign powers that some Indian nationals and residents have foreign bank accounts in HSBC Private Bank, (Suisse) SA, Geneva which were undisclosed to the Indian taxation department. The said information was received in the form of base note wherein the various details of account holders such as name, date of birth, place of birth, residential address, nationality, along with date of opening of bank account and balance lying therein were mentioned. In the case of the assessee also a base note was received. Thereafter, these information/details were passed on to the AO. The AO after receiving the informations from DIT(Inv.) 2, Mumbai issued notice under section 148 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ultimately he completed the assessment on 31.3.2015 treating the peak amount appearing in the HSBC bank account as income of the appellant purely on the basis of presumption and conjecture. 5.3 The appellant opened the bank account No. 10388171 in Zurich Branch of HSBC on 13.8.2004 and transferred USD 704220.28 to this account on redemption of fixed deposits with ANZ Grind lays Bank. Jersey, which are as under: Fixed deposit No. Date of deposit Last Dale of maturity Maturity Amount 1229187-102 18.1.1990 15.9.2004 USD87,094.50 122918^-101 3.1.1990 30.9.2004 USD 1,68,224. 23 122918^-103 29.12.1989 29 11.2004 USD 4,48,901. 55 It may kindly be noted that the' aforesaid fixed deposits were made out of funds available from the husband of the appellant, late Shri Narendra J. Khimji. In this regard, copies of statements showing the details of date of initial deposit, date of periodical maturity, inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er husband on his death. 6. Thereafter, the Ld. CIT(A), after taking into account the above submissions and contentions of the assessee, allowed the appeal of the assessee by observing and holding as under: As regards Ground Nos. 4 5, the crux of the matter emerging from the above details is that the AO relied on the information in the Base Note and reopened the assessment on the belief that the assessee did not show the balance of USD 528880 which was in the bank account of HSBC and did not file the Return of Income for the A.Y.2006-07. The Assessing Officer further believed that the accumulated balances were earned from India as the assessee was not permitted to undertake any employment abroad and this fact got strength from the perusal of passport which revealed that during the F.Y.2005-06 relevant to A.Y.2006-07 the assessee had made frequent visits to India and completed the re-assessment by holding that the source of the funds for the deposit of US Dollars 704220.28 on 30/11/2004 were relatable to a source in India and a discretionary trust was made by the assessee from sources in India and also had a source in India and assessed the total income at ₹ 2,33,92 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records. This is further evident from the observations of the AO who re-opened the assessment and recorded reasons and the AO who passed the assessment order as follows: The above facts and circumstances of the case when read with the jurisprudence as mentioned above points only to one thing with regard to the source of deposits in the HSBC, Geneva accounts, that the initial contribution to the HSBC, Geneva account while settling the discretionary trust was made by the assessee from sources in India which has not been disclosed in her return of income. Further, by applying the same principle, it can be concluded that the subsequent deposits in the account were also from sources in India which has not been disclosed in the assessee's return of income. 2.7 Prima facie it appears that the following initial deposits made by the assessee in December 1989 and January 1990 multiplied over a period of time every month with the credit of interest to it as per bank rules which ultimately resulted in the deposits of US Dollars 704220 with HSBC Bank Switzerland in 2004. A. 15th September 2004 USD 87,167.50 transferred to HSBC Private Bank (Suisse) SA B. 30th September ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee's CA that most of the information/details required for making a fair and just assessment viz., the original CD of the HSBC Bank Account Statement right from the date of creation till date or date of closure, whichever was later and the assessee replied during the assessment proceedings stating that the assessee has submitted the original CD of the account from HSBC Bank, Geneva to the ACIT-26(1). Similarly, the assessee's CA has also submitted that copy of the passport/details of foreign travel was also made available to ACIT-26(1) vide letter dated 16.02.2015 and was verified by the AO, ACIT.26(1], Mumbai. However, it is seen from the assessment order that the Assessing Officer mentioned that the assessee did not provide any information. The assessee's CA, however, during the appellate proceedings filed the details again. The undersigned verified these details and based on which the decisions have been taken. Nevertheless, the assessee's CA is requested to provide the entire set of 13 page affidavit, 265 page documents and letter dated 27.05.2016 along with three annexures to the AO and AO will verify the authenticity of these documents, correlate figures of dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sits were the deposits of the husband along with interest earned from time to time right from 1988 onwards in Grindlays Bank and ANZ Bank, Muscat which were quantified at USD 704220 standing in the bank account No.10388171 and this is the amount which was deposited with the HSBC Private Bank, (Suisse) SA, Geneva which is the bone of contention in the present case. The Ld. A.R. submitted before the Bench that the assessee is undisputedly a non resident Indian and even the Ld. CIT(A) has observed that AO was in a hurry to pass the assessment order since the time barring date was 31.03.2015 and probably did not have the time to examine the CD furnished by the assessee and the records from investigation wing, Mumbai. The Ld. A.R. submitted that the Ld. CIT(A) has given a finding of facts that the source of deposits as appearing in the HSBC Private Bank, (Suisse) SA, Geneva were out of the credit balance with the banks as stated above as increased by interest from time to time which were deposited in HSBC Private Bank, (Suisse) SA, Geneva in 2004 as per detail given hereinabove. The Ld. A.R. submitted that Ld. CIT(A) has even noted that assessee is a non resident and is not having any a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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