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TMI Blog2022 (7) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... d report. AO has observed that the source of assessee s fund in Dubai was not examined by him being out of courty s transaction. We note that the assessee has discharged its onus and addition under section 68 of the Act is not at all sustainable in as much as identity, creditworthiness and genuineness of the transaction has been duly explained. CIT(A) has observed that taxability of sum in Dubai Bank account is beyond the jurisdiction of Indian tax authorities as the assessee is an NRI. Once it is clear and accepted by the Assessing Officer also that sums were sent to India from assessee s (an NRI) foreign bank account in Dubai the provisions of DTAA are attracted. Hence, the reasoning of the learned CIT(A) that sum in Dubai bank accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the I.T. Act, 1 961 3. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that the source of investment amounting to Rs. 25.37 Crs. In M/s. Rajesh Exports Ltd. by the assessee lies in Dubai on the supposed basis of remand report where the AO has not given any such finding? 4. The Appellant prays that the order of the Ld. CIT(A) on the above grounds be set aside and that of the Assessing Officer restored. 5. The Appellant craves leave to amend or alter any ground or add a new ground which may be necessary. 3. Brief facts of the case are as under :- The case was reopened based on the specific information that the assessee entered into shares transactions and the bank acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of above period sent with previous letter dated 26.12.2016. 1 am a nonresident Indian, as I have been staying in Dubai since 2nd October, 1983 - till date I herewith attach my Passport copy with Dubai Visas. I have my own businesses of jewellery manufacturing and wholesales in Dubai, I herewith attach my trade Licence copy. 4. However, the Assessing Officer was not satisfied. He observed as under : On perusal of the Bank statement of Abu Dhabi Commercial Bank A/c. No. 417076, it is seen that huge amount has been deposited in Indian currency through RTGS ICICI Bank, Notice U/s. 142(1] of the I.T. Act, 1961 was issued to the assessee on 29.12.2016, which was served on the assessee though e-mail on 29.12.2016, requiring to furnish co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That the assessee is a non-resident. That many notices were not served to the assessee. Accordingly he admitted additional evidence. Thereafter learned CIT(A) noted the remand report and found that the Assessing Officer had accepted the same. Learned CIT(A) observed as under :- 10. The report of appellant on merits concluded as under: As per submission filed dated 22/09/2017 assessee has claimed that the assessee is engaged in business of jewellery in Dubai and he is issued business resident visa by UAE. His business is into the name of Radhakrishna jewellers (LLC) and business income is invested in shares. The assessee has NRE A/C no 417075. The assessee has invested Rs. 25.37 Crores through M/s Ventura Securities Ltd for Purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the income is paid is effectively connected, with such permanent establishment or fixed base. In such case, tile provisions of Article 7 or Article 14, as the case may be, shall apply. From the above it is clear that the sum cannot be assessed under Income Tax Act 1961 in India as provisions of Double Taxation Avoidance Agreement override provisions of Income Tax Act 1961. As per paragraph 1 of assessment order, the appellant is nonresident. He is resident of 'UAE and income is not from immovable property. The income which is taxed by As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer in the remand report. The Assessing Officer has observed that the source of assessee s fund in Dubai was not examined by him being out of courty s transaction. We note that the assessee has discharged its onus and addition under section 68 of the Act is not at all sustainable in as much as identity, creditworthiness and genuineness of the transaction has been duly explained. In this regard learned assessee s counsel placed reliance upon the ITAT decision in ITO Vs.Rajeev Suresh Ghai (ITA No. 6290/Mum/2019 for A.Y. 2010-11 vide order dated 23.11.2021). The proposition preferred in the said order of the ITAT duly supports the view taken by learned CIT(A) wherein he has referred to Double Taxation Avoidance Agreement (DTAA). Learned CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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