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TMI Blog2021 (12) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... ed or deemed to be received by or on behalf of such person or the same accrues or arises or is deemed to accrue or arise in India to such person. No such evidence to prove the fact that the remittance made by the assessee in his NRE Account or the credit allegedly appearing in HSBC has any source from income in India or routed from any business connection in India. We find that the CIT(A) clearly held that there is no material or evidence to say that the assessee was having any business connection in India so as to justify an inference that any income thereof was received or deemed to have been received or accrued or deemed to have accrued in India. Further on perusal of the Grounds of appeal raised by the revenue before us, we find that none of the findings recorded by the CIT(A) have been assailed on the basis of any material or evidence rather based on assumption. Therefore, we do not find any merit in the grounds of appeal raised by the revenue. Hence, we do not find any infirmity, illegality or perversity in the order passed by ld CIT(A), which we affirm. No merit in all the grounds of appeal raised by the revenue, resultantly all the grounds of appeal raised by the reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018 are dismissed. 3. Now adverting to the facts for the A.Y. 2006-07. Facts of the case are that assessee is a Non Resident Indian(NRI), filed his return of income for the A.Y. 2006-07 on 23.08.2007 declaring income of ₹ 60,243/-. The case was not selected for scrutiny and no scrutiny assessment order was passed. The Assessing Officer(AO)received information that assessee is maintaining foreign bank account with HSBC Bank, Geneva, Switzerland, with data sheet containing monthly balance in his account, received by Indian Government from French Authority. The said information was passed on by the Investigation Wing, Surat. As per the report of ADIT(Inv.), Unit-2, assessee refused to provide the details of his bank account on the ground that being Non-Resident, he is not obliged to provide details of his foreign income, bank account or transaction to Indian Tax Authority. As per the information available with the AO, the assessee was having peak balance in the impugned account with HSBC of US$ 562739.52, in the month of March, 2007. The data sheet and the account extract contained personal information of the account holder. The AO recorded that assessee did not furnish the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s served with notice under section 142(1) of the Act, dated 11.12.2015 and was asked to provide information with regard to nature and business activities during this year and source of his Income earned during this period, the copy of passbook, extract of all bank accounts including NRO/NRE, foreign bank account either in his name or jointly with any other person in India as well as abroad including HSBC Bank, Geneva and extract of all bank account with HSBC, Geneva with date of opening of account, tax returned and tax payment challan in respect of income earned in the tax jurisdiction wherein the assessee resided in last three years. The Profit and Loss account, Return of Income, Commission, brokerage income declared by assessee, the capital account, source of income which resulted in transfer of amount with necessary evidence and other details. The AO recorded that assessee in its written submissions has not denied the existence of bank account in HSBC, Geneva. The assessee pleaded that he was a non-resident, only income accrued or arising in India was taxable in India, has not substantiate the plea, that he had not earned in income in India, it was necessary for assessee to demo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annel and there is no evidence regarding the transfer of money. The money is transferred with the RBI norms. On the alleged credit in the HSBC, the assessee reiterated that he is an NRI from so many years and under no obligation to disclose foreign income or assets. The assessee further stated that in case of non-resident, the onus is on the department to prove that income is remitted from India. The assessee also rely on the decision of Hon ble Supreme Court in the case of Parimisetti Seetharamamma vs. CIT (1965) 57 ITR 532 (SC). The assessee also stated that no income is accrued or arose in India and is not taxable in India as per section 9(1)(i) of the Act as there is no business connection, any property or asset or source of income in India or capital asset generating income in India. Mere alleged reference in the address in HSBC account does not represent accrual of income from India. The nexus between income and India is either business connection in India or the property in India or source or asset in India. As per section 5 in case of non-resident or resident but not ordinary residence, the income accrued and received outside India is not taxable in India. In case of non-re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard to this addition would depend on whether the assessee is a resident or non-resident. The Ld. CIT(A) recorded that during A.Y. 2006-07the assessee s period of stay in India was 45 days. Further there is no dispute that status of assessee is a non-resident in terms of section 6 of the Act. Further, the assessee is filing his return in India by reflecting is status as non-resident. This status of assessee is accepted by Assessing Officer. The Ld. CIT(A) further recorded that perusal of Circular No.5 of 1969 issued by CBDT states that if the inward remittance has come through proper banking channel, no question at all asked by Income Tax Officer so as to origin of money brought in. The Assessing officer has accepted that impugned amount of ₹ 57,37,619/- has come through banking channel in his NRE account. Any credit entry in terms of inward remittance in India cannot be income deemed to accrue or arrive in India. The assessee earned the income outside India and remitted it to India. In such cases, the assessee is not under obligation to state the nature of transaction in abroad. In case of remittance by banking channel, the onus on the assessee is stranded discharged. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emitted in abroad. From the bank account furnished by assessee it is clear that assessee has not diverted any income of remittance abroad from India. Therefore the assessee has discharged his primary onus. Moreover, the non-resident the assessee is working abroad. The assessee is not a partner, a proprietor, director of any company doing business in India and he does not have any business in India. As he is non-resident, he is under obligation to declare his Indian asset and Indian accounts and he is not required to explain his foreign income or asset. The assessee already declared income arising or accruing in India by filing return of income in India. The Assessing Officer merely assumption and surmises that assessee has concealed particulars of income on the basis of sheet of papers from French Government highlighting that assessee holds a bank account in Switzerland. On the basis of above observation, the Ld. CIT(A) deleted the addition of ₹ 2,50,30,653/-. Aggrieved by the order of ld CIT(A), the revenue has filed present appeal before this Tribunal. The revenue has raised following grounds of appeal. a. That the Ld. CIT(A)-13, Ahmedabad has erred in facts and in law i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remittance of ₹ 57,37,619/- by way of banking channel, the onus on the Non-Resident u/s 69 of the Act stands discharged and therefore Section. 5(2)(b) of the Act does not apply, completely ignoring the fact that the onus was not discharged by the assessee that the said amount did not accrue or arise in India or could not be held to have accrued order arisen in India without verifying the residential status of the assessee upto AY 2004- 05 wherein the assessee could have been a resident as per provision 6(11)(c) of the Act and therefore such a huge remittance within such a short span warranted deeper investigation and enquiry. h. That the order of the Ld. CIT(A)-13, Ahmedabad suffers from perversity since the Ld. CIT(A) failed to enquiry the source of remittance which was received by the assessee or call for a remand report directing the assessee which were received in such a short span of time of assessee becoming nonresident. i. That the Ld.cita-13, Ahmedabad has erred in facts and in law in holding that it is incumbent upon the AO to establish that the balance in the bank account reflect the income, source of which is in India, in absence of which the additions canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of lower authorities carefully. The learned CIT-DR for the revenue submits that the learned CIT(A) erred in holding that assessing officer made addition without any basis and not considering the status of assessee being non-resident Indian. The assessing officer made addition on the basis of information received from sovereign country that is French Authorities, wherein it was communicated that certain Indian nationals and residents were maintaining bank account in HSBC Geneva. The said bank accounts are not disclosed to Income tax authorities. The learned CIT(A) not appreciated the relevant information received from sovereign countries. The assessee has not denied of having bank account with HSBC Geneva, nor filed in the detail to prove that the said bank does not have any link or there is no income derived or sourced from India. The assessing officer during the assessment proceeding granted full opportunity to the assessee to prove that the credit shown in the HSBC bank, it source and nature, despite the fact the assessee failed to prove the nature and source of credit. The learned CIT(A) appeals without appreciating these facts deleted the addition on account of remittance as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities. The learned AR of the assessee further invited our attention on section 5, 6 and 9 of Income-tax Act and would submit that the assessee is non-resident and his status is not disputed. The assessee is having no business connection, whatsoever no income accrues or arise in Indie or received or deemed to receive on behalf of assessee, therefore, merely some information had been received from some sources the same cannot be considered to make the assessment on non-resident in India in respect of bank account and assets held outside in India. The assessee has already filed his affidavit that he has no business connection in India. Only his passport was issued from Ahmedabad. The Ld. AR for the assessee submits that in fact the issues raised by the revenue are squarely covered by the decision of Mumbai Tribunal in DCIT Vs Venu Raman Kumar (ITA No. 2977/Mum/2018) and in DCIT Vs Hemant Mansukhlal Pandya (ITA No. 4697 680/Mum/2016). To buttress his other submissions the ld AR for the assessee relied on the following decisions; DCIT Vs Venu Raman Kumar (ITA No. 2977/Mum/2018), PCIT Vs Binod Kumar Singh (2019) (4) TMI 1533, DCIT Vs Binod Kumar Singh (2019) (4) TMI 295 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee is working abroad. The assessee is not a partner, a proprietor, director of any company doing business in India and he does not have any business in India. As he is non-resident, he is under obligation to declare his Indian asset and Indian accounts and he is not required to explain his foreign income or asset. The assessee already declared income arising or accruing in India by filing return of income in India. The Assessing Officer merely assumption and surmises that assessee has concealed particulars of income on the basis of sheet of papers from French Government highlighting that assessee holds a bank account in Switzerland. 14. We find that the coordinate bench of Mumbai Tribunal in DCIT Vs Venu Raman Kumar (supra) while relying on earlier decision in DCIT Vs Hemant Mansukhlal Pandya (supra) almost on similar grounds of appeal, in case of assessee who was also non-resident from decade, passed the following order; 12. We have carefully considered the rival submissions. So far as the factual aspect of the matter are concerned, the same has been noted in the earlier paragraphs and are not been repeated for the sake of brevity. So however, in order to briefly recap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank account in India in Dena Bank which is an NRO account. The said bank account has been reflected in AIR information. In order to prove that the amount in foreign bank account is not sourced from India, the assessee filed the bank statement of his only bank account in India Hemant Mansukhalal Pandya from the financial years 1998 to 2008. On perusal of the bank account filed by the assessee, it was noticed that there are no debits in the bank account which could have gone to the foreign bank account. Thus, it can be seen that no amounts have been transferred from his Dena Bank account in India to any of the bank accounts maintained including HSBC, Geneva. In fact, the balance in the account maintained in Dena Bank is so less that it cannot fund an amount of ₹ 4.28 crores which has been added by the AO as assessee's income. Despite this, the AO sought to put the onus of proving a negative that the deposits in foreign bank account are not sourced from India, on the assessee. In our considered view, the AO is not justified in placing the onus of proving a negative on the assessee. In fact, only a positive assertion can be proved, but not a negative. Furthermore, the onus o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of hearing before us, is based on the presumption that the assessee has routed the money sourced from India through the three entities into the bank accounts in question. It is a well-settled proposition that a presumption, howsoever, strong cannot substitute an evidence and, therefore, in our view, the CIT(A) made no mistake in deleting the addition. At this stage, we may also refer to the reliance placed by the AO as well as the CIT-DR on the judgment of Hon ble Supreme Court in the case of Sumati Dayal vs. CIT [214 ITR 801] to defend the addition made on the test of human probability. No doubt, the test of human probabilities is an acceptable test to decide the genuineness or otherwise of a particular transaction. So, however, what is required is to weigh and consider all evidences and material which are available on record. Considering the facts of the instant case and noting that there was complete absence of material, as noted by the CIT(A) too, we find that the application of test of human probabilities to sustain the addition would be unjustified. Therefore, the reliance placed on the judgment of Hon ble Supreme Court in the case of Sumati Dayal (supra), is not applicabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia so as to justify an inference that any income thereof was received or deemed to have been received or accrued or deemed to have accrued in India. Further on perusal of the Grounds of appeal raised by the revenue before us, we find that none of the findings recorded by the CIT(A) have been assailed on the basis of any material or evidence rather based on assumption. Therefore, we do not find any merit in the grounds of appeal raised by the revenue. Hence, we do not find any infirmity, illegality or perversity in the order passed by ld CIT(A), which we affirm. 16. In the result, we do not find any merit in all the grounds of appeal raised by the revenue, resultantly all the grounds of appeal raised by the revenue are dismissed. As we have dismissed all the grounds of appeal raised by the revenue, thus, the grounds of Cross Objections raised by the assessee have become infructuous. Even otherwise the ld AR for the assessee at the time of his submissions asserted that in case, the grounds of appeal raised by the revenue is dismissed, the assessee will not press his grounds of appeal raised in Cross objections. 17. In the result, the appeal of the revenue for AY 2006-7 is dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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