2021 (11) TMI 420

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..... , to address the menace of undisclosed income and assets stashed abroad. Factual backdrop: 2. It is a case wherein based on the intelligence inputs with respect to offshore entities in the British Virgin Islands (BVI), that the income tax investigation wing claims to have learnt that Gold Jewel Corporation (GJC-BVI in short), a company formed in the BVI on 7th July 2008, had its beneficial owners in India and that GJC-BVI operated certain bank account in the UBS, AG, Singapore branch (UBS Bank, in short). It appears that this input was investigated further, information was successfully requisitioned from, amongst others, the Government of Singapore under the 'exchange of information' clause in the India Singapore Double Taxation Avoidance Agreement [(1994) 209 ITR (Stat) 1], and the inputs available to the investigation wing were analysed. The two undisclosed bank accounts reflect credit entries of US$ 122,011,244 and US$ 25,011,282 (equal to Rs. 999.74 crores, as computed by the Assessing Officer by adopting the rate of 1US$ as equal to INR 68), but then many of these entries were intra-bank and contra entries. The incorporation documents of the GJC-BVI, the documents regarding .....

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..... u or your family members..... are promoter, partner, proprietor, trustee, settlor, beneficiary etc" and "state whether interest in such offshore entities were disclosed to the income tax authorities". Nothing further happened thereafter, except for taking the reply on record. A similar summons, with a requisition for the same information, was again issued on 24th November 2014, by the then Dy Director of Investigation. Copies of this summons and replies thereto are placed before us on pages 1-24 of the paper book filed by the assessee. The assessee was in denial mode and did not volunteer any information about the GJC-BVI or the bank accounts with the UBS Bank, Singapore. No such information was shared with the income tax authorities. It appears that the inputs available with the investigation wing were investigated further and relevant information was gathered from the agencies in different parts of the world. Armed with the information so collected, the investigation wing took steps to conduct search and seizure operations to take the matter to a logical conclusion. 3. It was in this backdrop that a search and seizure operation was carried out, on 17th March 2016, on the residen .....

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..... bove position, are reproduced below: Q 40. Are you aware about a concern M/s. Gold Jewel Corporation, BVI? Ans. To the best of my knowledge, answer is No. Q.41 Do you have any relation or connection in any manner whatsoever with the company M/s. Gold Jewel Corporation based in Portcullis, Trustnet Chambers, P.O. box 3444, Road Town, Tortola, British Virgin Islands (BVI)? Ans. To the best of my knowledge, answer is No. Q. 42 Do you have any business or personal transactions in any capacity in UBS AG Bank, Singapore or any other foreign bank in a foreign country? Ans. No transactions have taken place. Q.43 Did you sign any account agreement or any other document with UBS AG, Singapore or any other foreign bank in a foreign country in the last 10 years? If so, please state the detailed particulars of the same. Ans. To the best of my knowledge, answer is No. Q.44 Are you a beneficial owner or have any other interest in any foreign bank account? Ans. Personally No. However, Goldiam subsidiary in America and Honkong has foreign bank accounts. Q45. Did you have any business relations in any of your concerns with an entity M/s Hinkar Exports? Ans. I do not rememb .....

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..... e of incorporation and registration number, registered office address, nature of business along with the names and specimen signatures of List of directors/partners/trustees/officers with Names of RasheshManharkumar Bhansali and Ami Rashesh Bhansali with designation as Directors along with your passport nos. F3687352 & Z1457657. Please go through the contents of page No.3 of the Account Mandate and offer your comments. Also please confirm as to whether the name and passport id number that appears on page No. 3 belong to you? Please explain these documents. Ans. I don't recall signing any such document. Regarding Passport it is a xerox copy of my old passport. I do not know how this has gone to UBS AG Bank, Singapore. Q.54 I am showing you the account Opening Form for Corporation/ Trust/ Partnership/ Association of total l5 pages of Account No.161753 whereas page No.5 reflects the name details of the Authorised E-mail like name: Bhansali Rashesh, ID/Passport No: F3687352 & E-mail address: [redacted by us] Please go through the contents of page 5 of these total 15 pages of Mandate and confirm as to whose name, Passport and E-mail details appears. Please explain these documents. .....

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..... explain. Ans. These certified true copies specially of passports are used frequently by me for opening any D'mat account, bank account in India, visa purposes etc. etc. I am not sure how this has gone to Singapore. Q.59 I am now showing you a document titled "Corporate Certificate" in respect of foreign bank account No. 161753 [4 to 5 pages). On page 4 there are details of Name of Charger as Gold Jewel Corporation, Names of Authorised Representatives as RasheshManharkurnar Bhansali and Ami Rashesh Bhansali. Please go through the contents -of this document and explain. Ans. I have seen the pages that have shown to me. Again I am shocked to see our names on it. Q.60 I am showing you Incorporation details/certificates related to Gold Jewel Corporation at BVI which consists of Resolution of opening of bank account with UBS, AG, Singapore, details of Register of Directors, Consent to act as Directors, Application for shares, Share Certificate which are duly signed by Sh. RasheshManharkumar Bhansali and Smt. Ami Rashesh Bhansali. Please to through the contents of this document and explain? Ans: I have seen the pages that have shown to me and again state I don't have any comme .....

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..... nk account No. 161753 of Gold Jewel Corporation with UBS AG, Singapore branch there are outgoing payment of USD 71303, 29308, 13000 respectively on 10.06.2009, 12.06.2009, 18.11.2009 being transfer of amount to the account of M/s Goldiam international Limited. Please explain the nature of these debit entries in the foreign bank account of Gold Jewel Corporation. Please explain whether these receipts are reflected in the regular books of accounts of M/s. Goldiam International Limited. Please provide ledger copies of these receipts in the books of accounts of M/s Goldiam International Limited. Also provide details of bank account to which these remittance are received by M/s Goldiam international Limited? Ans. I am not aware of these entries and will verify. I will verify by 20.04.2016. Q.67 Perusal of the bank statement of foreign bank account No. 161753 of Gold Jewel Corporation with UBS AG, Singapore branch there are outgoing payment of USD 21587, 36800 respectively on 12-06-2009, 28-08-2009 being transfer of amount to the account of M/s. Goldiam international Limited. Please explain the nature of these debit entries in the foreign bank account of Gold Jewel Corporation. Plea .....

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..... branch You have not explained the sources of credits received in the said bank account. Please state as to why the sum of Rs. 829,67,64,592/- should not be treated as your income for these years in view of the fact that you are the beneficial owner of the said foreign bank account. Ans. As stated earlier these do not belong to me hence I have no comments for the same. Q.72 Please explain as to why your contention that you are not the beneficial owner of the assets, including foreign bank account of M/s Gold Jewel Corporation should be accepted in view of the contrary facts present. Ans. I believe there is some fraud and I am not the owner of this bank account. Q.73 The documents gathered from intelligence in respect of the foreign bank account No. 161753 with UBS AG Bank, Singapore branch, reveal your name as the beneficial owner and authorized representative along with copy of your passport. Please explain as to why you should not be held as the beneficial owner of this bank account. Ans. I believe there is some fraud and I am not the owner of this bank account. Q.74 You have denied that neither you nor your family members are beneficial owners or authorized represe .....

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..... d bank account shows that there are credit entries of USD$ 2,50,11,282 during the FY 2008-09. Please explain the sources of these credit entries. Ans. I do not know and I do not remember. Date Name Credit in US$ Debit in US$ 04-08-2008 Asha Samir Bhansali [Sister of Rashesh M. Bhansali] 21,86,000   05-08-2008 Sahil Pravin Jain   21,86,000 25-09-2008 Gold Jewel Corporation 37,02,810   Q.81 Please explain these entries. Ans. I do not have an explanation as they do not belong to me. Q 82. The bank statement of Bank account no. 137274 in (UBS AG Bank Singapore in your name. Please explain as to whether the transactions in this account are reflected in you tax returns in India. Ans. These are not reflecting in my income tax returns filed in India. Q.83 You have not been able to explain the sources of credits in Bank account no. 137274 in UBS AG Bank Singapore in your name. Please explain as to why the said credits at USD$ 2,50,11,282 amounting to Rs. 170,07,67,176/-@Rs. 68 exchange rate be not considered as you undisclosed income from unexplained sources. Ans. As stated earlier these do not belong to me hence I have no comments for the same .....

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..... he assessee submitted that the BMA is not applicable in this case because it applies only from 1st April 2016 onwards, i.e. the assessment year 2016-17. It was also pointed out that somewhat similar requisitions were made by the income tax authorities on 19th July 2013 and 24th January 2014, which have been replied to, and a search operation was carried out on the assessee on 17th March 2016 for which post search assessment proceedings are being carried out separately anyway. It was thus contended that there can not be two parallel proceedings on the same subject, and that, in any event, the bank accounts in question pertain to the period prior to the BMA coming in force. The assessee thus denied the applicability of BMA on these facts. Without prejudice to this stand, the assessee further requested the Assessing Officer to "give copies of the alleged specific information regarding foreign bank accounts" as the assessee "needs to be informed about the basis on which such assessment or reassessment (under the BMA) is proposed to be made". The stand so taken by the assessee was rejected by the Assessing Officer and it was, inter alia, explained that what is material is that when a fo .....

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..... which mentions that the Account Opening form is duly signed by you on 26-08-2008. 2. The part-1 of Account opening form containing details and mandate as under: Name of the Corporation Gold Jewel Corporation Address British Virgin Island Date of incorporation 07-07-2008 Registration No. 1491607 Nature of Business Investment Holdings List of directors Name Rashesh Manharkumar Bhansali Ami Rashesh Bhansali   Designation Director Director   Passport No. F3687352 Z1457657 Signing Authority Any one signature is required for written instructions Correspondence Through Retained mail Power of Attorney None Details of authorized e mail Name Rashesh Bhansali   Passport No. F3687352   e-mail address [redacted]           3. Appendix-1, which mentions that each of the directors, vide Board meeting dated 12-08-2008, have resolved to have received and reviewed the copies of Bank Account Agreements and other relevant documents. 4. Declaration of the beneficial owner's identity form, which mentions the following details: Client M/s Gold Jewel Corporation First name RasheshManhark .....

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..... fying Shri Rashes ManharkumarBhansaliaAmi Rashesh Bhansali as directors and details of their share holding in Gold Jewel Corporation. The documents are signed by Shri RasheshManharkumar Bhansali and Smt. Ami Rashesh Bhansali. 9. Appointment of first Registered Agent's appointment of first Director(s) of Gold Jewel Corporation as Shri RasheshManharkumar Bhansali and Smt. Ami Rashesh Bhansali. The document is dated 12-08-2008. 10. Separate consent letters to act as a director issued and signed by Shri RasheshManharkumar Bhansali and Smt. Ami Rashesh Bhansali. The letter is issued to M/s Gold Jewel Corporation. 11. Share Certificate No.-001 issued by M/s Gold Jewel Corporation on 12-08-2018 whereby, the company has issued one share to Shri RasheshManharkumar Bhansali and Smt. Ami Rashesh Bhansali out of 50,000 shares authorized to be issued. The certificate is signed by Shri RasheshManharkumar Bhansali. 12. Appendix-2 which is a letter dated 16-05-2011 issued by UBS AG to M/s Gold Jewel Corporation for closure of account No.-161753 and transfer of any asset as per the instruction. 13. Application for shares dated 12-8-2008 made and duly signed by Shri RasheshManhark .....

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..... e UBS AG Singapore 161753 122011244 8296764592 Gold Jewel Corporation 04-09-2008 16-05-2011 UBS AG Singapore 137274 25011282 1700767176 Rashesh M. Bhansali - 08-10-2008 Total   147022526 9997531768       The Financial Year wise details of credits in the aforementioned accounts are as under: Account No. F.Y. Amount in USD 161753 2008-09 12,018,359 2009-10 10,99,92,885 Total 829,67,64,592 X 68 = INR     Account No. F.Y. Amount in USD 137274 2008-09 250,11,282 Total 250,11,282 X 68 = INR 170,07,67, 176 Therefore the Grand Total of undisclosed credits detected in both the account numbers i.e. 161753 and 137274 are as follows. F.Y. Amount in USD 2008-09 3,70,29,641 2009-10 10,99,92,885 Total 14,70,22,526 x68= INR 999,75,31,768 In the instance, you are summoned u/s 8(b) of the Black Money (Undisclosed Foreign Income and Assets) And Imposition of Tax Act, 2015, to attend before the undersigned in person on 19-02-2019 at 03:00 pm and explain and show cause as to why all the credits in account No.-161 753 and 137274 maintained in UBS, AG, Singapore, totallin .....

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..... m the fact that the assessee was served a show-cause notice in respect of these accounts on 19th July 2013, the valuation date for the asset can at best be as on 19th July 2013. It was then pointed out that as per the bank statements furnished to the assessee, there are loan entries of as much as US$ 11,73,75,690.53, the loan availed cannot be treated as an undisclosed asset of the assessee. It was then submitted that the inter- bank transfers from or to loan account stand fully explained, and, to that extent, these amounts cannot be taxed in the hands of the assessee. On that day, i.e. 19th February 2019, the assessee had appeared in person before the Assessing Officer, and the statement of the assessee under section 8(b) of BMA was recorded. Some of the questions and answers recorded in this statement were as follows: Q.7 I am showing you photo copies of Indian Passports on which names are mentioned as RasheshManharkumar Bhansali. Please verify the same and confirm whether this is the copy of passport belong to you. Ans. Yes. This Passport belongs to me. Q.8 I am showing you a copy of Memorandum of Articles (MOA) and Article of Association (AOA). It is seen from the MOA, .....

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..... of signing the document was in Singapore on 26-08-2008. I would like to state that neither me nor Ami were in Singapore on 26-08-2008. Further, I would like to state that I have seen all the documents as, mentioned above and confirm that I am not at all aware of any of the documents and they are not signed by me. Q.10 From the documents is it is evident that you and Smt. Ami Rashesh Bhansali are the first directors of the company M/s Gold Jewel Corporation appointed by the first Agent M/s Portcullis Trust net (BV Limited. Please confirm the same. Ans. I am not aware of the company Gold Jewel Corporation, the documents that states that we are the first directors of the companies. To the best of my knowledge they are not signed by us. Q.11 I am showing you a copy of document 'Consent to Act as a director' issued to M/s. Gold Jewel Corporation and signed by you and Smt. Ami RasheshBhansalias director. Please peruse the same and confirm that you and Smt. Ami Rashesh Bhansali have signed and issued your consent letter to M/s Gold Jewel Corporation giving consent of directorship effectively from 12-08-2008. Ans. I am not aware of the company Gold Jewel Corporation, the docum .....

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..... ficial owner's identity was submitted to the UBS AG, Singapore, mentioning that you and Smt. Ami Rashesh Bhansali are the beneficial owners of M/s Gold Jewel Corporation (BV). The document is signed by you on 26-08-2008. Please go through the same carefully and confirm the same. Ans. As replied earlier, from the documents shown on beneficial owner's identity: It may be noted that there is no signature of Ami Bhansali on this document and for me, the signature is not done by me. Q.17 Please peruse the copy of bank account opening form submitted in UBS, AG, Singapore signed by you and Smt. Ami Rashesh Bhansali. It is seen from the document submitted with the bank that copy of your Passport bearing number F3687352 as well as copy of Passport of Smt. Ami Rashesh Bhansali bearing No. Z1457657 was provided to the bank as identity proof. Please confirm that you and Smt. Ami Rashesh Bhansali have signed near the details of Passports in the bank account opening form. Please also confirm that the copies of passport, bearing numbers as mentioned above belong to you and Smt. Ami Rashesh Bhansali. Ans. I confirm that the Passport numbers belong to me and Ami Bhansali but we have .....

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..... tivities of M/s Gold Jewel Corporation. Q.23 Please explain all the credit and debit entries in the bank accounts number 161753 and 137274. Ans. The entries appearing in the bank account statements for both the accounts are self explanatory in the wordings as loans and time deposits given by the bank. Q.24 Vide letter dated 05.02.2019 your Authorized representatives had requested for copies of bank account opening form and bank account statement in respect of Bank Account No.- 161753 (Gold Jewel Corporation) and 137274 (RasheshManharkumar Bhansali) opened in UBS, AG, Singapore, which was provided to the Authorized Representatives vide order sheet noting dated 07-02-2019. Please confirm that you have received the requisite documents on 07-02-2019 and carefully perused and studied the same. Please comment on the same. Ans. Yes, we have received the copies of the requisite documents. I state that I and Ami Bhansali have no connection with Gold Jewel Corporation and the bank accounts No.-161 753 and 37274 in the UBS, AG, Singapore. We have not signed any documents as can be seen from the copies provided. Q.25 I am showing you copy of document marked as Annexure 4 The docu .....

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..... . Ans. I have not given any such instruction to the bank and the signature on the instruction is not mine. Q.29 In your statement u/s 132(4) of the Income tax Act, dated 18-03-2016, in answer to Q. No. -35, you have stated that you are not owner of any offshore entity however from the MOA, AOA, Share application, Share certificate and bank account opening form shows that you are the beneficial owner of M/s. Gold Jewel Corporation and Bank account No.-161753 and 137274. All the aforementioned document bear your signature which matches with your signature as seen from copy of your Indian Passport bearing No.- F3687352. Please comment Ans. All the signature on the documents do seem like mine and that of Ami Bhansali. However, we have not signed any such documents under consideration. Q.30 In your statement u/s 132(4) of the Income tax Act, dated 18-03-2016, in answer to Q.No.-41, you have stated that you are not connected with Gold Jewel Corporation, BVI, an offshore entity, however from the MOA, AOA, Share application, Share certificate and bank account opening form shows that you are the beneficial owner of M/s Gold Jewel Corporation. All the aforementioned documents bea .....

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..... ebody else for income for using you signature? Ans. I have seen the documents as being shown to me and I can only say that these are not my signatures. I have no further comments to offer. Q.34 Who is Ms. Asha Samir Bhansali and what is her profession? Ans. Asha Samir Bhansali is my elder sister. She lives in the USA with her husband and two children. I do not even know what her profession is. Q.35 Please describe the business of her husband and children. Ans. I am not aware of their business as I am not connected in business with them. Q.36. When did you last meet. and/or spoke to Ms. Asha Samir Bhansali, her husband and children? Ans. I met Asha six month back when she was in Mumbai. Q.37 How is your terms with her, her husband and her children? Ans. I do not have good terms with Asha for more than 15 years approx. I have normal and plutonic kind of relationship with them. Q.38 Did you and/ or any of your concern ever had any kind of transactions (whether business or personal) with her, her husband and children? Ans. To the best of my knowledge neither I nor any of my concerns ever had any kind of transaction whether business or personal with her, .....

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..... name of Gold Jewel Corporation, BVI and you respectively have been provided to your Authorized Representative. Have you gone through the Bank Statements? Ans. More or less I have gone through the provided photo state copies of the Bank Statements as mentioned above. Q.49 I am again showing you the copy of Bank Statements in respect of Account No.-161753 and 137274. Can you please go through the same and explain the credit and debit entries appearing in the bank statements? Ans. Prima facie on seeing these, it seems there are a lot of Bank Loans given and taken back by the bank. There are lot of words used by the bank such as Time Loan, Call Deposit, Time Loan Repayment, Call Deposit Repayment etc. These words indicate that the bank has given loans to the account and recovered later. Regarding other entries, you have already asked above with individual names which have been answered accordingly. It must be stated that huge amounts are in the tune of Bank Loan received and recovered and the exact amounts on Time Call deposits repayments etc. should be confirmed by the said bank. Q.50 Do you know Arunabh Banerjee. Ans. I have seen his name initially in the search when .....

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..... nk AG, Singapore, and that bank account of GJC-BVI be opened with UBS Singapore and operated by the assessee or by his wife, signing singly for an unlimited amount. All the details on records were analyzed and the Assessing Officer came to the conclusion that the assessee was operating the UBS Bank account under his signatures and making several transactions with the Indian entities as well. So far as one aspect of the transactions from these UBS Bank is concerned, the Assessing Officer observed as follows 7.4 From the above, it can be seen that outward remittances were made on the instances of the assessee, i.e. Shri RasheshManhakumar Bhansali. Shri RasheshManharkumar Bhansali used to give instruction to the UBS, AG, Singapore, under his signature and the same amount is shown to have been outgoing from the Account No. 61753 and reach its destination in India through SWIFT transfer. The transfer of funds from the undisclosed offshore Bank Account to Indian concerns have been done under the instruction of Shri RasheshManharkumar Bhansali clearly proves the ownership of the undisclosed Bank Account by Shri RasheshManharkumar Bhansali and Smt. Ami Rashesh Bhansali. 7.5 As can be .....

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..... ns. 7. On 28th March 2019, as the assessment proceedings under the BMA were on the verge of completion, the assessee finally owned up the bank accounts and submitted as follows: 1. This refers to the ongoing assessment proceedings under section 10 of the Black Money Act, 2015. 2. While I continue to maintain that Black Money Act is not applicable in the present case, it is self-evident from the photocopies of the bank statement which are relied upon, as evidence, against me, that there are large numbers of loan entries and re-deposits in the accounts. The credit entries in the same bank statements relate to the loan taken from UBS Bank, and the same has been repaid with interest to UBS Bank, which is reflected by the debit entries in the same bank statement. Assuming that the Black Money Act does apply, the tax leviable on the undisclosed income. There is no tax leviable on loans availed and repaid. Loans are in the nature of liability, and cannot be treated as income for the purpose of tax. 3. On this basis, the actual tax on the alleged" undisclosed foreign income" (revealed from the photocopies of the bank statements) cannot be so high as sought to be demanded, as is c .....

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..... papers recovered from my father, Shri Manharkumar Bhansali's old office which was sold recently, I found some papers pertaining to these bank accounts. These papers as now found are photocopies of papers which are being relied upon against me and my wife by the department in respect of these two bank accounts. Looking at these, I recall that my father had got me and my wife Mrs. Ami Bhansali to sign some such papers many years back. It thus appeared that these signed papers are pertaining to the very same two accounts which must have got opened by my father in the names of my wife and myself, for reasons best known to him. I immediately took legal advice and accordingly in light of this, I do hereby categorically own up these accounts viz.: account number-1372 74 belonging to Rashesh Bhansali and account number 161753 belonging to Gold Jewel Corporation, where beneficial owner is Rashesh Bhansali only though shareholders are Rashes Bhansali & Ami Bhansali. I am giving explanation to the entries appearing in these two accounts to the best of my ability in the Annexure enclosed. 8. The above submissions are without prejudice to my rights and contentions in pending Writ Petitio .....

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..... 0(3) of the Black Money (Undisclosed Foreign Income And Assets) And Imposition Of Tax Act, 2015, you have been denying the ownership of the offshore entity M/s Gold Jewel Corporation and offshore Bank Account Nos.-161753 and 137274 held and maintained in the UBS, AG, Singapore. Contrary to the same, in your submission dated 28-03-2019 you have stated that Bank Account No 161753 belongs to M/s. Gold Jewel Corporation and Account No 137274 belongs, to you and you are the beneficial owner of both the aforesaid Bank Accounts Please comment on the changed stand of yours. Ans. It is true that during the course of Search proceedings, subsequent proceedings and during the course of Assessment proceedings, I have been denying the ownership of the Bank Account No 161753 and 137274 held in the name of M/s Gold Jewel Corporation and Rashesh M. Bhansali respectively, However, during the Search, I maintain, that it was for the first time, I saw the Bank Accounts Statements and other documents pertaining to the aforesaid accounts. Hence, I had denied them as I did not know anything about the same. As per my submissions today, i.e, 28-03-2019, I want to state that on cleaning up the heap of pape .....

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..... Statement in respect of Bank Account No. 161753 and 137274. Ans. Sir, I have appended the detailed explanation of each and every entry with my submission dated 28-03-2019 wherein, I have quantified an amount of US$ 7,15,538.58 and US$ 1,29,688.92 as credits in bank account not supported by withdrawal in Bank Account No. 161753 and 137274 respectively. This may therefore be treated as income and taxed accordingly. Q.10 I am again showing you some communication made to Shri Anurabh Banerjee by you in which you have instructed him to remit USD 71103.31, 36,800, 18,000 and 13,000 from Bank Account No 161753 to Goldiam International Ltd. in India on various occasion, please explain the transaction and also confirm that the instructions to the bank were issued by you. Ans. As I have mentioned earlier, all finance, investments, payments, bank related work was always controlled by my father. At the instances of my father, I signed the instructions for remittances. However, I was not aware the nature and the purpose of the transactions. As stated earlier, I used to sign papers sent by my father unquestionably as he was my father and also the Chairman of the Group. Q.11 As per instr .....

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..... y withdrawals may be added to my income and not in her income which would meet the end of justice. Q.15 When was the account No. 137274 which was held in your personal name, opened? Ans. Since, this is a very old matter, I do not remember when exactly it was opened by my father in my name. However, it was somewhere in financial year 2008-09 as per your records. Q.16 I am showing you the statement of Bank Account No. 137274. The statement show a negative opening balance of US$(-) 73.62. Please explain the same. Ans. As I understand, these are some account opening/ bank charged they must have debited. Q.17 It is seen from the bank statement of the Account No. 137274 that an amount of US$ 5000000 was taken from the bank as Callable Range Accrual Note on which quarterly periodical interest was received in the same account. Please explain how the same was redeemed and where? Ans. The Callable Range Accrual Note of US$ 5000000 was purchased on 15-05-2008 from the bank in my name in account No. 137274. The maturity date of this note was 15-05-2018 and interest was received on the same on quarterly basis which was credited in the bank account No. 137274 only. However, to the .....

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..... proceedings under the Act. 11. As for the reasons as to why the UBS Bank account and the offshore company in GJC-BVI was being owned up at this stage, the assessee had an interesting explanation set out in the affidavit dated 29th March 2019 as follows: I, RasheshManharkumar Bhansali, residing at 5th Floor, 55A, Nishika Terrace, AG Khan Road, Worli Sea Face, Mumbai - 400 030, do hereby solemnly affirm as under: 1. I say that my father Late Shri Manharkumar Bhansali used to operate from office premises at The Capital 7th Floor, Bandra-Kurla Complex, Mumbai, till he expired in October 2017. I say that in or about July 2018, the said office, which had become inoperative, was sold. Because I have the office in the same building, all the leftover articles and documents were packed up and stored in office. Since last couple of weeks, because of approaching year end, I started to open and sort out these papers bit by bit. On 28th March 2019, while I was clearing these papers I found some papers relating to the Bank accounts which are a subject matter of present investigations by you. 2. I say that, looking at these, I recalled that my father had got me and my wife, Mrs. Ami Bha .....

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..... and Assets) And Imposition of Tax Act, 2015, on 28-03-2019, and affidavit of the Assessee dated 29-03-2019 were considered carefully. In this regard, it is pertinent to mention that the Assessee in the Statement dated 28-03-2019, has stated that he was made a director of M/s. Gold that the Assessee was one of the director in the aforesaid offshore entity and the offshore Bank Account No. 161753 and 137274 were held by him and therefore, the Assessee is held to be beneficial owner and accountable for the transactions made in the Bank Accounts. 9.2 Further, the explanation of the Assessee on the entries of the Bank Account No. 161753 cannot be accepted in toto. An amount of US $ 3213307.60: is shown as incoming payment credited from Gold Jewel Corporation on 22-02-2010. The Assessee has stated that the same is premature redemption of investment. However, he failed to substantiate the claim as to why the same should not be considered as a part of income in the statement and explanation of bank Account. The Assessee has not been able to furnish any documentary evidence in support of the claim. 9.3 The onus to prove that the amount of US$ 3213307.60 shown at credit side, does not .....

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..... ive proper justification, of the credit amount of US$ 3213307.60 and also remained silent on the amount of interest to the tune of US$ 87500. Thus the Assessee failed to discharge his duty on both the counts. It is also pertinent to mention here that section 101 of the Indian Evidence Act, 1872 states that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. According to Section 103 of the Indian Evidence Act, 1872, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. Section 106 of Indian Evidence Act, 1872 says that when any fact is especially within the knowledge of any person, then burden of proving that fact is upon him. All the aforesaid provisions are applicable to the assessee. This is a fact which he asserts. Therefore, burden lies on the person to prove the said facts (Section 101 and 103 Indian Evidence Act 1872). Secondly, this is a fact that the amount of US$ 3213307.60 was credite .....

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..... ount reflected in bank account no. 137274, in the hands of the assessee. c) On the facts and circumstances of the case and in law, the learned Assessing Officer erred in taxing an amount of Rs. 10,67,24,870 /- (being equivalent to $1606653.8) being the amount reflected in the bank account no.161753, in the hands of the assessee. d) On the facts and circumstances of the case and in law, the learned Assessing Officer erred in taxing an amount of Rs. 29,06,172/ - (being equivalent to $ 43750) alleged to be credited in the bank account no.161753 on an estimated basis, in the hands of the assessee. e) On the facts and circumstances of the case and in law, the learned Assessing Officer erred in taxing an amount of Rs. 13,28,53,600/- (being equivalent to $20,00,000) being the amount reflected in the bank account no.137274, in the hands of the assessee. f) On the facts and circumstances of the case and in law, the learned Assessing Officer erred in taxing an amount of Rs. 14,52,08,985/- (being equivalent to $21,86,000) being the amount reflected in the bank account no.137274, in the hands of the assessee. 5) On the facts and circumstances of the case and in law, the learned A .....

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..... sessing Officer. Neither the assessee nor the Assessing Officer is satisfied with the stand so taken by the learned CIT(A). While the assessee is aggrieved of the additional sustained in his hands, the Assessing Officer is aggrieved of the relief granted by the learned CIT(A). The assessee as also the Assessing Officer is now in appeal before us. Issues in appeal: 15. When these appeals came up for hearing before us, Shri Pardiwalla, learned counsel for the assessee, submitted that broadly speaking, there are six questions that are required to be adjudicated by us, and identified these six questions for our consideration. It was submitted that once these six questions are answered, most of the issues in these appeals will be settled. We are urged to adjudicate on these questions first. One of the questions he framed, i.e. with respect to the challenge to the Assessing Officer's jurisdiction, was later dropped by him on instructions. One question, representing the grievance of the Assessing Officer in appeal, was added to these questions. The questions finally framed for our adjudication, as learned representatives specifically agreed, are up as follows: (a) Whether a bank accou .....

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..... ghted is that, according to him, what it covers is those undisclosed foreign assets that existed at the point of time when provisions of the Act came into force. It was pointed out that Section 1(3) provides that "save as otherwise provided in this Act, it shall come into force on the 1st day of April 2015". It is then also pointed out that the expression 1st day of April 2015 was substituted for "1st day of April 2016" by the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act (Removal of Difficulties) Order, 2015. It is thus submitted that the provisions of the Act came into effect from 1st April 2015. Learned counsel then takes is to the provisions of Section 2(11) which provides that "'undisclosed asset located outside India' means an asset (including financial interest in any entity) located outside India, held by the assessee in his name or in respect of which he is a beneficial owner, and he has no explanation about the source of investment in such asset or the explanation given by him is in the opinion of the Assessing Officer unsatisfactory". Learned counsel submits that the wordings of the provision clearly refers to the expression "which is held .....

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..... ion for bringing the same to tax under the BMA. Learned counsel submits that Gautam Khaitan(supra) decision relied upon by the learned CIT(A) is completely out of place inasmuch as this is a case that dealt with the question of whether the application of Act could be extended to 1st April 2015, as against 1st April 2016 originally enacted, under section 86 of the BMA. It was thus urged that the action of the authorities below in applying the provisions of the BMA cannot be sustained in law. 18. Learned senior counsel's next proposition is that a bank account abroad per se, whether it existed at the point of time of the provisions of the BMA came into force or not, cannot be treated as an asset or an income for the purpose of Section 2 (11). It is submitted that a bank account statement could be a relevant document but it does not constitute an asset particularly when an account is no longer in existence. Learned senior submits that section 2(11) refers to only such assets which have a cost of acquisition as section 2(11) defines the undisclosed asset located outside India as "an asset (including financial interest in any entity) located outside India, held by the assessee in his n .....

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..... A. We are urged to read down the provisions of rule 3(e). We are then urged to read the language of section 3, alongwith CBDT clarification under reply to question 13. He states that what can be assessed in the hands of the assessee is either an asset or an income. The bank account is not an asset under BMA as it did not exist at the point of time when BMA came into force and in any case, there is no net balance in the account eventually, and it is not income because what can be taxed is only income and not simply the credits. Learned senior counsel fairly submits that rule 3(e), the mechanism of valuing the bank account has been provided but then he submits that it is well settled in law that the provisions of the rules cannot override the provisions of the parent Act. Therefore, if a bank account cannot be treated as an asset under the BMA, it cannot be open to us that a bank asset is an asset because a mechanism has been provided to compute the value of bank account under rules framed under the BMA. On the basis of this line of argument, learned senior counsel urges us to hold that the bank account nos. 161753 and 137274, which were closed much before the BMA came into force, di .....

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..... unsel submits that, therefore, unless it is shown that an assessee has, directly or indirectly, provided consideration for that asset, an assessee cannot be said to be owner thereof. It is then submitted that there is nothing to demonstrate that the assessee has paid any consideration for the asset in question- the company or the bank account. We are thus urged to hold that the assessee could not be treated as a beneficial owner of the bank accounts in question. He further submitted that he is alive to the fact that a coordinate bench of this Tribunal, in the case of ACIT Vs Jitendra Mehra (BMA No. 1/Del/20; order dated 6th July 2021) has rejected this approach by holding that the definition under the Income Tax Act, 1961 in this regard will not hold good but as this position is clearly contrary to Section 2(15) of the BMA, this decision is required not to be taken into account. When it was put to him that the contextual reference for the meaning of 'beneficial ownership' in the context of unaccounted offshore assets may be materially different, learned counsel submits that even the definition under Explanation 4 to Section 139(1) is in the context of offshore assets only, and, to .....

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..... ed entries but once all the entries are explained, there cannot be any occasion to make any additions in respect of the same. Learned counsel submitted that the assessee, on his own has accepted unexplained credit entries to the extent of US $ 7,15,538.58 in respect of UBS Bank account no. 161753, but the Assessing Officer has made the addition of US $ 3,213,307 in respect of early redemption of investments, as discussed a short while ago- which has been deleted by the CIT(A), and the US $ 87,500 in respect of missing entry of interest on securities, While so far as the addition of US $ 3,213,307, learned counsel took us through the order of the learned CIT(A) and justified the same, no specific arguments were addressed on the addition of US $ 87,500 beyond saying that the addition is devoid of any basis. As regards account no. 137274, learned counsel points out that the addition of US $ 2,000,000 in respect of early redemption of 7.5% ANZ Callable Daly Range Accrual note, but then this investment was made out of the borrowings, and, to that extent, it stands explained and should be deleted. As regards the addition of US $ 2,186,000 on account of remittance received on 4th August 2 .....

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..... products of the assessee, learned counsel did not have anything much to say, beyond what has been submitted before the authorities below at various stages, but he submitted that he will take further instructions on this aspect. Learned counsel concluded by submitting that in case there are any more specific questions on facts, the same will be dealt with at the rejoinder stage. 23. Shri Anand Mohan, learned Commissioner (Departmental Representative), submitted that the assessee before us was in denial mode all along and it was just at the fag end of the assessment proceedings, and just three days before the end of the time limit for completing the assessment, that the assessee owned up the bank account and furnished his explanations in this regard. This action on the part of the assessee, according to the learned Commissioner, was part of the strategy of the assessee to pre-empt a thorough examination of the details furnished. Learned Commissioner submitted that the assessee has been completely non- cooperative right from the beginning, and has not furnished any information other than what was anyway in the possession of the Assessing Officer. It is submitted that the explanation .....

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..... of the Black Money (Undisclosed Foreign Income & Assets) and Imposition of Tax Rules, 2015 (BMR, in short) which clearly provides that "value of an account with a bank shall be, (i) the sum of all the deposits made in the account with the bank since the date of opening of the account; or (ii) where a declaration of such account has been made under Chapter VI and the value of the account as computed under sub-clause (i) has been charged to tax and penalty under that Chapter, the sum of all the deposits made in the account with the bank since the date of such declaration" subject to the proviso that "where any deposit is made from the proceeds of any withdrawal from the account, such deposit shall not be taken into consideration while computing the value of the account". It is then submitted that as rightly held by the coordinate bench in the case of Jitendra Mehra (supra), even a bank account is an asset, and even if a bank account pertained to the earlier years, it will be brought to tax in the year in which it came to the notice of the Assessing Officer. Learned Commissioner (DR) submits that it is anyway a non-issue because what has been brought to tax are only interest entries a .....

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..... he securities is not properly explained- save and except for reference to certain entries. As regards the addition of US $ 87,500, it was noted that there is no explanation for the same. We were thus urged to vacate the relief granted by the CIT(A) in respect of US $ 3,212,766, and confirm the additions of US $ 2,000,000, US $ 2,186,000, and the US $ 87,500 which have been confirmed by the learned CIT(A) as well. Learned CIT(DR) submits, in response to our question about the nature of transactions that these aspects indeed require deeper examination than on record, and, as the final fact-finding authority, rather than confining ourselves to limited findings on the record, we may give a direction for an examination of entries in detail, should that be considered necessary. 28. In the brief rejoinder given by Shri Madhur Agarwal, learned counsel for the assessee, the points made by the learned senior counsel were reiterated. It was submitted that all the credit entries are properly explained and whatever has not been explained, the assessee has, on his own, accepted tax liability in respect of the US $ 7,15,538 and the US $ 1,29,688 in these two accounts. Learned counsel once again .....

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..... in callable bonds giving interest. The assessee would also keep the surplus fund in the call deposits which were in the nature of fixed deposits. The banks provided loans against the investments to be made in their own portfolios and against call deposits made by the assessee. Further, the loans were short term. The assessee would either repay loans out of the call deposit or take a fresh loan to pay the earlier loan. Further, the assessee would make investment out of the loans taken from the banks or out of the call deposit. As a result, the assessee would earn interest on investment and profit on sale of investment. Similarly, the assessee would pay interest on loans or incur loss on sale of investment. 29. On the strength of these submissions, we were once again urged to confirm the relief of US $ 3,212,766 granted by the CIT(A), and delete the additions of US $ 2,186,000, US $ 2,000,000, and the US $ 87,500 confirmed by the learned CIT(A). Learned counsel once again submitted that he has no objection to the entire disputed addition being confirmed, to the extent sustainable in law, in the hands of the assessee, as the assessee is a beneficial owner of both of these accounts. .....

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..... arned counsel has nevertheless been granted time till 28th October morning to take instructions on the limited aspect as to whether or not such an account existed, and, if yes, why was that information not shared with the income tax authorities. There has been no response till the time of pronouncement of this order. Challenge to the proceedings under the BMA before Hon'ble Bombay High Court 33. We may, at this stage, also take note of a writ petition (i.e. WP No. 40 of 2019) filed by the assessee, and of Hon'ble Bombay High Court 's order dated 28th March 2019 thereof. Their Lordships' order is reproduced below for ready reference: Several legal issues including the challenge to the constutionality of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Act 2015, require detailed consideration, hence, Rule. In view of the challenge to the Union legislation, let there shall be notice of admission be issued to the learned Attorney General. Having heard the learned counsel for petitioner, however, we donot find any reason to either stay any of the provisions of the Act, or to prevent Competent Authority from passing appropriate orders on pending proce .....

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..... the said writ petition are wholly unconnected with our adjudication, as evident from the following extracts from the writ petition (see page 324 of the assessee's paper book): POINTS TO BE URGED: A. Retrospective operation of Black Money Act in terms of Section 72(c) leading to duality of proceedings is ultra vires the provisions of the Black Money Act and unconstitutional. Section 72(c) of the Black Money Act cannot travel beyond the charging Section 3 (1) of the Black Money Act. The legal fiction created by Section 72 (c) of the Black Money Act cannot dilute the provisions of the charging section. B. On completion of Re-Assessments under the Income Tax Act, the jurisdiction of the officers to institute or continue proceedings under the Black Money Act is wholly ousted. C. Retrospective operation of Black Money Act in terms of Section 7(c) suffers from the vices of an ex post facto penal statue and is violative of Article 20 (1) of the Constitution of India. D. Provisions of Chapter VI including Section 72 (c) has been wrongly invoked in the present case. 37. We have also noted that Their Lordships have specifically declined a stay on the applicability of the prov .....

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..... r got this eye back.] 41. The way things have unfolded in India, and way Indian initiative has found support from the global quarters, however, these perceptions turned out to be incorrect. 42. A series of administrative steps as also legislative changes, beginning with the setting up of the SIT. enactment of the Black Money (Unaccounted Foreign Income and Assets) and Imposition of Tax Act 2015, strengthening the institutional framework for the exchange of information and clearly discernible thrust on enforcement of law are pointers in this directions. While it may still take time to see the complete results of this exercise, and what we see now is only the tip of the iceberg, the cases like this aptly demonstrate that the efforts are yielding results, even if the pace of progress is slow due to the delays inherent in a just, fair and transparent legal process. 43. The information about the GJC-BVI and assessee's linkage with the same was in the public domain as far back as 2013, as could be seen in the Indian Express press report oninvestigations done by the International Council of Investigative Journalists- see item 74 (http://archive.indianexpress.com/news/icij-probe-list-of .....

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..... ated with any offshore companies, but the assessee replied in negative. On 17th March 2016, during the income tax department's search operation, the assessee was specifically asked about the GJC-BVI and whether he had any connection with the GJV-BVI, the assessee feigned ignorance about it. He was asked about the UBS Bank Singapore account, and he feigned ignorance about it. The assessee was confronted with the material that the Government had obtained, under the exchange of information enabled by the applicable tax treaties, including the material on which signatures of the assessee appeared and which was in assessee's own handwriting, but the assessee declined having signed these papers and went to the extent of saying that "I think there is some huge mistake or conspiracy in the matter". When the assessee was asked about the persons with whom the assessee had transactions through these bank accounts, he refused any information about them. When the assessee was shown entries in the bank accounts, he was completely evasive and went to extent of saying that "I believe that there is some fraud and I am not the owner of this bank account". All this was being said on the face of the m .....

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..... benefit from his act in any manner or learnt anything more than whathe already knew. 47. The assessee has a very interesting, and somewhat dramatic, explanation for this change of heart in owning up the bank accounts. On 28th March 2019, he informed the Assessing Officer that "it is only yesterday while cleaning up the heap of papers recovered from my father, Shri Manharkumar Bhansali's old office which was sold recently, I found some papers pertaining to these bank accounts ...(which).... are photocopies of papers which are being relied upon against me and my wife by the department in respect of these two bank accounts. Looking at these, I recall that my father had got me and my wife Mrs. Ami Bhansali to sign some such papers many years back. It thus appeared that these signed papers are pertaining to the very same two accounts which must have got opened by my father in the names of my wife and myself, for reasons best known to him" The assessee claims that he took the legal advice, immediately on finding these papers, and in the light of the legal advice so obtained, "I do hereby categorically own up these accounts viz.: account number-1372 74 belonging to Rashesh Bhansali .....

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..... of the assessee's paper-book], and Their Lordships declined interim reliefs prayed by the assessee, but then nothing on the records suggests that the assessee did inform Hon'ble Bombay High Court of this critical development. There is nothing to even remotely suggest that the facts set out in the writ petition before Hon'ble Bombay High Court were corrected. What follows is that the assessee was untruthful before the Hon'ble Bombay High Court, even according to his own admission of wisdom having dawned on him on 27th March 2019, but even that did not yield him any relief- as evident from Their Lordship's order declining interim relief prayed for- see para 33 at page 47-48 earlier in this order. Not only the assessee has taken the contradictory stand at different times, the assessee has also takenthe contradictory stand before different forums at the same time. We may, in this regard, refer to the dictum known as 'falsus in uno, falsus in omnibus' (false in one thing, false in everything) which has been referred to, with approval, by the Hon'ble Calcutta High Court in the case of Amal Kumar Chakraborty v. CIT [(1994) 207 ITR 376 (Cal)]. In this case, Hon'ble Calcutta High Court has .....

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..... ion rebutted. We agree. We further agree that it is not the law that any and every explanation by the assessee must be accepted. It must be acceptable explanation, acceptable to a fact-finding body." On a similar note, Hon'ble Supreme Court's observation, in the case of CIT v. Durga Prasad More [(1971) 82 ITR 540 (SC)], to the effect that "Science has not yet invented any instrument to test the reliability of the evidence placed before a court or tribunal. Therefore, the courts and Tribunals have to judge the evidence before them by applying the test of human probabilities". When such are the views of Hon'ble Supreme Court even on the reliability of 'evidence', it is futile to even suggest that 'explanations' given by the assessee should be treated as gospel truth without putting them to elementary tests in the light of what really happens in a real world. This approach is also echoed by Hon'ble Supreme Court in SumatiDayal v. CIT [(1995) 214 ITR 801 (SC)], wherein Their Lordships rejected the theory that it is for alleger to prove that the apparent and not real, and observed that, "This, in our opinion, is a superficial approach to the problem. The matter has to be conside .....

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..... arking shows not only the fact that the assessee was called back to confirm the instructions but even the date and time when the call back was given.When the assessee was asked about Arunabh Banerjee, during the course of recording a statement, the assessee had stated that "I do not know Arunabh Banerjee and hence do not have any relation with him...". That was clearly untrue. Not only thus the assessee sign the instructions, but the assessee was also called back on the same by the bank official Arunabh Banerjee and the assessee was fully aware of what the instructions were. As if even this was not enough, in many cases, the transactions were with the Indian companies, managed by the assessee, and the impact of these transactions could not, therefore, have been missed. See, for example, one of the bank instructions received under exchange of information from the Government of Singapore, which is also reproduced on page 144 of the assessment order. The instruction was to pay the US $ 13,000 to the assessee's Indian company Goldiam International Ltd, through HSBC New York.As per noting by Anirudh Banerjee, he called back Mr R B (the assesseee) on 13 November 2009 at 12.35 pm, obvious .....

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..... 31st March 2008 and shows an opening negative balance of US $ 73.62. When the assessee was asked about this amount, he states that "these (i.e. US $ 73.62) are some account opening/bank charges they must have debited", suggesting that there were no transactions prior to that date. When asked about when was this account opened, the assessee states that "this is a very old matter" and that he does "not remember when exactly as it opened by my father in my name" and that "however, it was somewhere in 2008-09 as your (AO's) records". These statements, however, clearly contradict the information obtained, under the exchange of information program, from the Singapore Government, which shows that the total assets in that account in the UBS, as of 31.12.2007, were the US $ 1,107,533.63. A copy of the said document, a copy of which was duly furnished to the assessee as well on 7th February 2019 and is also placed before us at page 49 of revenue's paper-book, is as follows: 55. It is also important to note that on 7th April 2008, there is an entry of US $ 37,250 on account of interest on 7.45% ANZ Callable Daily Range Accrual Note 2006- 5.10.2016. Clearly, therefore, the assessee had some i .....

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..... been offered to tax. There is certainly no objection to such amounts being offered to tax, as long as the Assessing Officer accepts the same, but that does not mean that all the explanations are to be accepted on the face value. There are clear missing links in the information furnished, and it cannot even be an excuse that the assessee could not have gathered the requisite information from his banker in Singapore and shared the same with the Assessing Officer. As is noted at page 128 of the assessment order, the books of accounts and records of GJC-BVI were kept with UBS AG, Singapore, and the assessee was also confronted with the board resolution to that effect duly signed by the assessee, but the assessee did not bother to share the same. That is not an approach on the part of the assessee which can be appreciated or admired.And yes, the assessee has not served any information about where seed funds came in these accounts and where did the closing funds disappear. When we asked about the source of initial deposits to make investments, we were told that the assessee had taken the loans from the bank itself to make investments in the bank itself. When we asked for the margin moni .....

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..... sessment of the bank accounts was the statement, explaining the bank entries, as given by the assessee. 60. So far as UBS bank account no. 161753, in the name of Gold Jewel Corporation, is concerned, the assessee, on his own, accepted the 'assessable income', on account of unexplained entries, at the US $ 7,15,538.58. This is the figure as per 'Annexure to letter dated 27.3.2019' filed with the Assessing Officer on 28.3.2019. The ownership of this account, for the detailed reasons set out earlier in this order and independent of the affidavit filed by the assessee, is beyond the slightest doubt, and the explanation, for the delay in owning up the bank account, as given by the assessee stands rejected. 61. There are two adjustments that the Assessing Officer has made to this declaration of income. 62. The first addition is with respect to the credit of US $ 32,13,307.60 which is described in the bank statement as 'Incoming payment: Gold Jewel Corporation' and the value date is 22.02.2010. The explanation given by the assessee, in the remark column of his chart, is 'Maturity of Investments' but there is nothing to show that the said investment was ever accounted for. As noted by t .....

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..... % UBS Callable Range Accrual note of US $ 5 million. It is an agreed position that the assessee held this security at the relevant point of time and that this amount would have been due on account of interest income from that security. It is also an admitted position that the bank statement from this account, for the period of 12.6.2009 to 28.8.2009 (wrongly mentioned by the Assessing Officer as 12.6.2008 to 28.8.2008), is missing, and that closing figure on 12.6.2008 and opening figure on 28.8.2008 are different- see pages 139 and 140 of the paper-book filed by the assessee. Under these circumstances, the interest entry on the due date is a reasonable inference, and the Assessing Officer has rightly made the addition for this missing entry of interest income, and the CIT(A) has rightly confirmed the same. We see no need to interfere in the matter and confirm the action of the authorities below on this point. 64. On a separate note, it is an interesting co-incidence that seemingly the Singapore Government authorities, most likely on account of an oversight, did not send the bank statement for the period 12.6.2009 to 28.8.2009, and even though the assessee had already found another .....

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..... t March 2008, as the interest of US $ 87,250 could not have been earned on the securities worth the US $ 2,000,000 in just 7 days. The description also suggests that the security in question was acquired on 5.10.2006, as, in consonance with other similar transactions entered by the assessee with the same bank, these callable notes seem to be for a ten-year tenure redeemable on completion of 10 years. Therefore, it will be logical to assume that callable security redeemable on 5.10. 2006 but we are not really concerned with even that aspect of the matter, because, whether acquired in 2006 or not, it was definitely acquired before 31st March 2008, and, therefore, it cannot be said to be out of accounted assets. The explanation of the assessee has been rightly rejected by the authorities below. We confirm the action of the authorities below and decline to interfere with this adjustment as well. 68. The second adjustment made by the Assessing Officer, which has also been sustained in the first appeal, is with respect to credit of US $ 2,186,000 on 4th August 2008 with narration as "Incoming payment: Asha Sameer Bhansali". The assessee has explained this entry as "loan from sister" in .....

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..... ngapore was thus US $ 83,32,083.56, or say US $ 8,332,083.56. No interference is called for in this computation. 70. In view of the above discussions as also bearing in mind the entirety of the case, question nos. (e) and (f) posed for our consideration, which are broadly factual in nature as is discussed above, stand answered in negative, and in favour of the Assessing Officer. 71. Let us now move on to deal with all the legal questions posed for our consideration and these legal questionsare (a) whether a bank account abroad or any unaccounted asset abroad, which did not exist as at the point of time when the Black Money (Undisclosed Foreign Income & Assets) and Imposition of Tax Act 2015 came in force, i.e. 1st July 2015, can be assessed under the said legislation? and (b) whether an undisclosed bank account abroad can be treated as an asset under section 2(11) of the Black Money (Undisclosed Foreign Income & Assets) and Imposition of Tax Act 2015?The questions so framed by the learned senior counsel proceed on the assumption that what has been brought to tax in the impugned assessment is the value of the asset by way of undisclosed foreign bank accounts, and that this has bee .....

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..... ed foreign income is to be computed under the BMA, no deduction in respect of any expenditure or allowance or set-off of any loss shall be allowed to the assessee, whether or not it is allowable in accordance with the provisions of the ITA. 76. In any event, there is no reference to valuation of bank account under rule 3(e) of BMR in the submissions of the assessee, before the Assessing Officer, in the computation of taxable income, in the assessment order or in the documents relating to, and the computation of taxable income is in the manner and on the basis of an approach adopted by the assessee, and the assessee can not be aggrieved of his approach being accepted by the Assessing Officer. 77. Let us take a look at the scheme of taxation of unaccounted foreign income and assets. As we do so, it is also important to bear in mind the fact so far as the assessment of undisclosed foreign income and assets is concerned, the Act does not provide any different treatment, and the differentiation being sought to be canvassed by the learned senior counsel, therefore, is a distinction without any material difference. Under section 2(12), 'undisclosed foreign income and asset' means 'total .....

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..... sed receipts simpliciter which are subjected to tax under the Act. Section 5(1)(ii) provides that where an undisclosed foreign asset is acquired, partly or wholly, out of income assessed in the hands of the assessee, and assessee furnishes evidence to that effect, to that extent, the assessee shall give relief from double taxation of the same income. No such differentiation thus, as is argued before us, is material in the context of the present case. 77. Clearly, therefore, what is offered to tax even by the assessee is of predominantly of unambiguously income nature, as also unexplained credits in the bank accounts which are also of income nature. It is, therefore, wrong to proceed on the basis that what has been taxed is only the value of an undisclosed asset and not an income. 78. Let us now move to the question, as has been put by the learned senior counsel, i.e whether a bank account, which did not exist at the point of time when the provisions of the Black Money (Undisclosed Foreign Income & Assets) and Imposition of Tax Act 2015 came in force, i.e. 1st July 2015, can be treated as an 'undisclosed asset' under section 2(11) of the Act and be brought to tax as such, under th .....

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..... factor leading to the "present and future meaning" being assigned by Their Lordships is the word "available" immediately following the word "is". Their Lordships have thus clearly hedged the assigned meaning given to the expression "is" as wholly "contextual" in the sentence using the expression "is", and certainly that is not the situation before us. In our considered view, therefore, Their Lordships' observations do not support the interpretation sought to be canvassed. 83. Section 2(11) uses the undisclosed foreign assets as "an asset (including financial interest in any entity) located outside India, held by the assessee in his name or in respect of which he is a beneficial owner, and he has no explanation about the source of investment in such asset or the explanation given by him is in the opinion of the Assessing Officer unsatisfactory". There is no indication anywhere that the assessee must continue to hold the asset anywhere, and proviso to Section 3(1) on the contrary, specifically mentions about the assets held in the past inasmuch as it provides that "Provided that an undisclosed asset located outside India shall be charged to tax on its value in the previous year in w .....

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..... hiraja Madhav Rao Jiwaji Rao Scindia Bahadur v. Union of India [1971] 3 SCR 9, Hon'ble Supreme Court cautioned: "It is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment." 85. Learned senior counsel has taken pains to demonstrate that the reliance placed by the learned CIT(A), as also by the learned Commissioner (DR), on Hon'ble Supreme Court's judgment in the case of Gautam Khaitan(supra).It is contended that this judicial precedent cannot be considered an authority for the proposition that an asset, which did not exist at the point of time when the provisions of the BMA came into effect, can be brought to tax under the BMA. 86. This argument, given our findings earlier in this order and having rejected plea of the learned senior counsel on merits, is somewhat academic. As long as conclusions arrived at by the learned CIT(A) are correct, it does not really matter as to what was the reasoning adopted. 87. Be that as it may, we have noted that Hon'ble Supreme Court's judgment has obse .....

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..... he income clearly discernible from the bank account in question and not the value of the asset itself. 91. Learned senior counsel's suggestion that section 2(11) refers to only such assets which have a cost of acquisition as section 2(11) defines the undisclosed asset located outside India as "an asset (including financial interest in any entity) located outside India, held by the assessee in his name or in respect of which he is a beneficial owner, and he has no explanation about the source of investment in such asset or the explanation given by him is in the opinion of the Assessing Officer unsatisfactory", does not appeal to us for the simple reason that an amount receivable from the bank in respect of a bank account is certainly an asset of the person holding that account, for all practical and legal purposes. While such a bank account is an asset, the cost of this asset is the deposits made in the account by the account holder or receipts diverted to such an account by the account holder. If the owner of a bank account has say Rs. 10 crore in a bank account, he has to explain the source of investment in this bank account. If, for example, he can substantiate that, out of this .....

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..... eated as an asset under section 2(11). Rule or no rule, the position would be the same. 95. The next question that the learned senior counsel wants us to adjudicate upon is whether the provisions of the Black Money (Undisclosed Foreign Income & Assets) and Imposition of Tax Act 2015 can be pressed into service in respect of an undisclosed foreign asset or income which was already in the knowledge of the revenue authorities as at the point when the said legislation came into force. 96. So far as this plea is concerned, we find that proviso to Section 3 (1) that an undisclosed foreign asset located outside India shall be charged to tax on its value in the previous year in which "it comes to the notice of the Assessing Officer". Quite clearly, thus, its being in the notice of the Assessing Officer which is a critical factor. Unless it comes to the notice of the Assessing Officer, the taxation of the asset does not get triggered. So far as an undisclosed income from a source is concerned, it is a negative definition in the sense that under section 4(1)(a) and (b) provide that "subject to the provisions of this Act, the total undisclosed foreign income ...... any previous year of an a .....

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..... case where person makes declaration in respect of 5 assets whereas the Government has information about only 1 asset. In such situation the person will be eligible to declare the balance 4 assets under Chapter VI of the Act. In such case the declarant, on receipt of intimation by the Principal Commissioner/Commissioner, shall revise the declaration made within 15 days of such receipt of intimation to exclude the asset which is not eligible for declaration. Tax and penalty on the eligible assets under the Act shall be payable in respect of the revised declaration by 31st of December, 2015. In respect of the ineligible assets provisions of the Income-tax Act shall apply. [All emphasis, by underlining etc, is supplied by us] 98. It is contended that the reference in the above question is for the matter being in the knowledge of the Government of India, and not the Assessing Officer alone. This circular, being in the nature of a concession- even if that be so, will bind all the field officers. It is thus submitted that dehors the wordings of Section 3 and 4, the provisions of circular should be given effect, and the cases in the knowledge of the Government of India, as at the point .....

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..... fficer, as at the point when the said legislation came into force. This question is thus decided against the assessee. 101. The last question that learned counsel has framed for our consideration is whether the assessee can be treated as a beneficial owner, under Explanation 4 to Section 139(1) of the Income Tax Act, 1961- which holds good in the present context as well, of the account in the name of the Gold Jewell Corporation BVI, and be thus assessed in respect of the same, and, whether, in this regard, the coordinate bench decision in the case of ACIT Vs Jitendra Mehra (BMA No. 1/Del/20; order dated 7th July 2021) does not constitute a binding precedent inasmuch as it does not take into account Section 2(15) of the Black Money (Undisclosed Foreign Income & Assets) and Imposition of Tax Act 2015? 102. We take up the second limb of this question first. It is indeed true that, as rightly pointed out by the learned senior counsel, Section 2(15) of the BMA provides that "all words and expressions used herein (i.e. Black Money (Undisclosed Foreign Income & Assets) and Imposition of Tax Act 2015) but not defined, and defined under the Income Tax Act, 1961, shall meaning respectively .....

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..... d out that under Explanation 4 to Section 139(1) beneficial owner "in respect of an asset means an individual who has provided, directly or indirectly, consideration for the asset for the immediate or future benefit, direct or indirect, of himself or any other person". Learned counsel, therefore,submits that, therefore, unless it is shown that an assessee has, directly or indirectly, provided consideration for that asset, an assessee cannot be said to be 'beneficial owner' thereof. It is then submitted that there is nothing to demonstrate that the assessee has paid any consideration for the asset in question- the company or the bank account. We are thus urged to hold that the assessee could not be treated as a beneficial owner of the bank accounts in question. 104. It is only elementary that BMA is enacted to deal with, as its preamble aptly puts it, "the problem of the black money that is undisclosed foreign income and assets", and, as such, it deals with the underbelly of the world of offshore companies and tax havens. The present context of 'beneficial ownership' is thus diametrically different inasmuch as, unlike the Income Tax Act, it does not deal with transparent business t .....

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..... scription of the Latin maxim 'ut res magis valeat quampereat'. A statute is supposed to be an authentic repository of the legislative will and the function of a judicial forum is to interpret it "according to the intent of them that made it." From that function the judicial forum can not resile, it has to abide by the maxim ut res magis valeat quampereat, lest the intention of the legislature may go in vain or be left to evaporate in thin air. (See CST v. Mangal Sen Shyam Lal AIR 1975 SC 1106.) The judicial forums should thus as far as possible avoid that construction that attributes irrationality to the legislature. Viewed thus, if we are to hold that definition of 'beneficial owner' as assigned by Explanation 4 to Section 139(1) is to equally apply, we will end up in a situation in which the BMA itself will become unworkable. Therefore, for both of these reasons- i.e. (a) the contextual requirements being otherwise, and (b) the adoption of this meaning rendering the provisions of BMA becoming unworkable, the definition under Explanation 4 to Section 139(1) cannot be adopted in the context of the BMA. We reject this plea of the learned counsel as well. 105. As arguments of the le .....

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..... 03/M/2021;Y 2017-18 Rashesh M. Bhansali Vs Addl Commissioner of Income Tax 1) In the facts and circumstances of the case and in law, learned CIT(A) erred in confirming the action of Assessing Officer in invoking the provisions of Black Money (Undisclosed Foreign Income & Assets) and Imposition of Tax Act, 2015 since the same are neither attracted nor applicable in the case of the appellant. Dismissed 2) In the facts and circumstances of the case and in law, learned CIT(A) erred in confirming the action of Assessing Officer in passing the impugned assessment order dated 31.03.2019 u/s 10(3) of Black Money (Undisclosed Foreign Income & Assets) and Imposition of Tax Act, 2015 which is bad in law and without jurisdiction. Dismissed 3) In the facts and circumstances of the case and in law, Learned CIT(A) has erred in rejecting various grounds urged on behalf of the Appellant with respect to the assailability of Order passed by Assessing Officer that too based on conjectures and surmises. The Learned CIT(A) has failed to even deal with various contentions raised on behalf of the Appellant including as contained in the Written Submissions filed on 14.06.2021 by the Appellant .....

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..... , the Impugned Order is bad under the law and is required to be set aside. No adjudication required 8) The Appellant craves leaves to alter, amend, withdraw or substitute any ground or grounds or to add any new ground or grounds of appeal on or before the hearing. No adjudication required BMA 05/M/2021; AY 2017-18 Addl Commissioner of Income Tax Vs Rashesh M. Bhansali Grounds of appeal 1. Whether on the facts and circumstances of the case and in law, the CIT(A) was correct in holding that the source of credit of US$ 32,13,307.60 in bank account no. 161753 on 22.02.2010 was premature redemption of investment, when the assessee has failed to satisfactorily proof the same and thus the burden of proof remains un-discharged by the assessee. Allowed 2. Whether on the facts and circumstances of the case and in law, the CIT(A) was erred in not treating the credit of US$ 32,13,307.60 in bank account no. 161753 on 22.02.2010 as undisclosed asset, when as per section 2(11) of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015, unsatisfactory explanation regarding source of investment in a foreign asset renders such asset to be an undisclos .....

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..... re somewhat akin to the provisions of Section 153(3) of the Income Tax Act. In the case of Rajinder Nath Vs CIT [(1999) 120 ITR 14 (SC)], and dealing the scope of the provisions of Section 153(3), Hon'ble Supreme Court has held that "The expressions 'finding' and 'direction' are limited in their meaning. A finding given in an appeal, revision or reference arising out of an assessment must be a finding necessary for the disposal of the particular case, that is to say, in respect of the particular assessee and in relation to the particular assessment year. To be a necessary finding it must be directly involved in the disposal of the case" and that the reference to finding and directions being given by the appellate authorities or Courts are not in the nature of "a provision enlarging the jurisdiction of the authority or court". So far as disposal of these appeals is concerned, we see no need to give any specific directions to the authorities. Whatever the Assessing Officer has done has been confirmed, and we cannot go beyond that. The question as to whether any of our observations given during the course of our adjudication can be construed as 'findings' for Section 11(3) is hypothet .....

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