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TMI Blog2023 (7) TMI 1084X X X X Extracts X X X X X X X X Extracts X X X X ..... which was claimed as marriage gifts and therefore exempt. 2. The learned CIT (Appeals) erred in not applying the decision of the Honourable Supreme Court in the case of P,K.Noorjahan 237 ITR 570 merely on the ground that section 69 was the subject matter of addition in the Honourable Supreme Court case but in the case of the assessee section 69A is applicable ignoring the fact that the language employed in both the sections are same. 3. Brief facts are that the assessee is a non-resident individual employed in USA and living outside India since 2004. According to assessee, he is not having any source of income in India since 2004. The assessee being a non-resident and having no source of income in India, as claimed, did not filed any return of income for earlier assessment years. For the relevant assessment year 2017-18, the assessee filed his return of income on 31.03.2018 admitting total income at Rs. 96,100/-. The assessee's case was selected for scrutiny assessment under CASS and notice u/s.143(2) of the Act was issued. The AO noticed that during financial year 2016-17 relevant to assessment year 2017-18, the assessee has made cash deposit to the tune of Rs. 2,00,000/- in hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of a property from M/s. Sobha Ltd, the appellant has clearly proved that he is the owner of the money. Thus, the 1st condition which requires satisfaction for application of section 69A stands satisfied. The second condition says that it should not be recorded in books of account, which is also satisfied, partly. 5.3 The Third and most important condition is, the "nature and source of the said money or valuable article" should remain unexplained. Here, the Ground gets dicey. The claim of the appellant that the cash is sourced out of his marriage gifts remains unproved in view of no demonstable evidence. The case of the A.O is also not strengthened by any evidence. In other words, both the claims remain unsubstantiated. 5.4 As mentioned above, the application of Section 69A to any case should be primarily on facts and not on law. As no direct evidence is available in substantiation of both the claims, I am placing reliance on "Theory of preponderance of possibilities." To ask any person to prove gifts received on the occasion of marriage etc., is nearly impossible. No, economic transaction an be divorced from the underlying socio-cultural factors. As widely known, demoneti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the observations of CIT(A) that no economic transaction can be divorced from the underlying social cultural factors. It is customary in Indian society and according to status one receives gifts in marriage. Hence, we further want to estimate by looking into the fact that assessee might not have received cash gift of Rs. 1,00,00,000/- and CIT(A) has already allowed relief of Rs. 30,00,000/-, we want to make a further estimate and delete the amount of Rs. 20,00,000/- further. Thereby, the total deletion is i.e., deleted by CIT(A) of Rs. 30,00,000/- plus deletion now by the Tribunal of Rs. 20,00,000/-, aggregate comes to Rs. 50,00,000/-. Hence, we sustain the balance of Rs. 50,00,000/- as unexplained money u/s.69A of the Act. In term of the above, the first two grounds raised by the assessee are partly allowed as indicated above. 7. Coming to next issue as regards to applicability of provisions of section 115BBE of the Act. For this, ld.counsel for the assessee raised the following ground No.3:- 3. The learned CIT (Appeals) erred in confirming the action of the Assessing officer in levying tax under the amended provisions of section 115BBE @60 and surcharge of 25% without noticing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Where the total income of an assessee,- (a) includes any income referred to in section 68, section 69, section 69A, section 69B, section 69C or section 69D and reflected in the return of income furnished under section 139; or (b) determined by the Assessing Officer includes any income referred to in section 68, section 69, section 69A, section 69B, section 69C or section 69D, if such income is not covered under clause (a), the income-tax payable shall be the aggregate of- (i) the amount of income-tax calculated on the income referred to in clause (a) and clause (b), at the rate of sixty per cent; and (ii) the amount of income-tax with which the assessee would have been chargeable had his total income been reduced by the amount of income referred to in clause (i). The reliance placed by the ld.counsel for the assessee on the decision of Hon'ble Supreme Court in the case of Karimtharuvi Tea Estates, supra was as regards to imposition of surcharge on the ground that the law applicable to assessment for 1957-58 under the provisions of agricultural income-tax was the law enforced on 01.04.1957 and as the Surcharge Act having come into force on 1st September, 1957 did not hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that year. The enhanced rate applies from the commencement of the assessment year, which relates to the previous financial year. 10.2 We noted from the taxation law, Second Amendment Act, 2016 that the Income-tax payable shall be the aggregate of the amount of income-tax calculated on the income referred to clause (a) and clause (b) of section 115BBE(1) of the Act at the rate of 60% w.e.f. 01.04.2017 that means from assessment year 2017-18 relevant to financial year 2016-17 rate of tax will be at sixty percent. In our view and as held by Hon'ble Kerala High Court, there was no new liability created and the rate of tax merely stood enhanced which is applicable to the assessment year 2017-18. The enhanced rate applies from the commencement of the assessment year 2017-18, which relates to previous financial year 2016-17 as the case in the present assessee and not on the date of commencement of the amendment. The reasoning for the same is that the date of amendment on which an amendment comes into force is the date of the commencement of the amendment. It is read as amended from that date. Under the ordinary circumstances, and Act does not have retrospective operation on substantial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year was in force for that assessment year or - as if the provision in the Finance Bill for that year was duly passed into an Act, Whichever of these two provisions is more advantageous to the assessee. 10.5 It means that the provisions of Section 294 of the Act are valid only upto the time of finance bill proposed for the assessment year is duly enacted into law. Hence the argument of Ld. Counsel invoking the provisions of Section 294 of the Act in the present case is without any logic. 11. Accordingly, we are of the view that in the instant case before us the provisions of Section 115BBE of the Act as amended by second amendment Act by the Taxation Laws (second amendment) Act, 2016 will apply w.e.f 01.04.2017 on enhanced rate of tax @60% instead of @30%. The enhanced rates applies from the commencement of the assessment year relevant to previous financial year. In this case, this applies to Financial Year 2016-17 relevant to Assessment Year 2017-18. Hence, we find no force in the arguments of the Ld. Counsel and hence same are rejected. This issue is decided in favour of Revenue and against assessee. 12. In the result, the appeal filed by the assessee is partly allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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