9911796707
TMI Blog2024 (11) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... on 148A (b) dated 20.02.2024. 3. The brief facts of the case are as under: 3.1. The petitioners are British Citizens and residing in India during the year under consideration. As the petitioners were holding the NRE account as joint holders with HSBC Bank, Ahmedabad, no return of income was filed by the petitioners for the Assessment Year 2017-18 as they were earning interest on term/ fixed deposits in the NRE account which according to the petitioner is exempt under Section 10(4) of the Act. 3.2. The respondent issued a notice under Section 148A (b) dated 09/11.03.2024 and passed order under Section 148A (d) dated 27/28.02.2024. The petitioner of Special Civil Application No. 8544 of 2024 filed reply dated 05.03.2024, explaining the total amount of investment of Rs. 1,21,92,914/- was out of past remittance made. The petitioner also uploaded several documents comprising of copy of his passport, detail of fixed deposits and renewal of fixed deposits, NRE statement issued by the HSBC Bank from 31.12.2013 to 31.03.2017 and Form 26AS. 3.3. Thereafter, notice under Section 148A (b) of the Act dated 09/11.03.2024 was issued by the respondents as the petitioners did not file return of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the year 2013. 4.3. Learned advocate Mr. Umaidsingh Bhati, therefore submitted that information which is referred to in the impugned notice and the order are contrary to the reply filed by the petitioners stating the investment made by the petitioners during the year under consideration out of the funds which was already invested on withdrawal of the fixed deposits, the new fixed deposits were placed. However, the same is not taken into consideration by the respondent Assessing Officer. 4.4. It was further submitted that even Specific Authority as per Section 151 of the Act have also not granted mechanical sanction to reopening without considering the documents placed on record by the petitioner. 4.5. It was further submitted that the petitioners have not disclosed about their residential status for the year under consideration as the same was not a material fact as the only requirement sought for reopening was about the amount of Rs. 1,21,92,914/-, which is withdrawn by the petitioner and reflected in the bank statement, which was later on placed by the petitioners by way of another fixed deposit, which is not in dispute as the same is evident from the bank statement placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of jurisdiction for reopening for the year under consideration and taking into consideration the facts of the case, the impugned order is passed by the respondent authority to further scrutinize the case of the petitioners who are admittedly resident in India for the year under consideration as stated in the affidavit filed by the Chief Commissioner of Income Tax. Reliance was also placed in para-12 of the said affidavit to point out that since 2015-16, the petitioners were residing for more than 200 days in India and therefore since 2015-16, the petitioners were not having status of NRI as per the provisions of Section 6 of the Act. 5.3. It was therefore submitted that no interference be made by this Court at this stage when the respondent authorities have come to the conclusion that it is a fit case to reopen the assessment. 6. Considering the submissions made by both the sites, it is pertinent to note that this Court passed the following order on 15.07.2024: "1. Heard learned advocate Mr. Umedsingh Bhati for the petitioner and learned senior standing counsel Mr. Varun Patel for the respondent. 2. Learned advocate Mr. Bhati submitted that the impugned order under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the impugned order under Section 148A (d) of the Act has not considered the reply of the assessee wherein all details with regard to transaction in NRE Account of the assessee are made available so as to arrive at a conclusion as to whether it is a fit case to issue notice under Section 148A of the Act. 5. We, therefore, direct the Chief Commissioner of Income Tax, West Zone, Mumbai, to file an affidavit giving details as to on what basis the approval is granted to the issuance of notice under Section 148 and order under Section 148A (d) of the Act being a fit case to re-open the assessment for A.Y. 2017-18 as provided under the said Section. Such affidavit shall be filed on or before the next date of hearing. Stand over to 23rd July, 2024." 7. Pursuant to the aforesaid order, an affidavit-in-reply was filed by the Chief Commissioner of Income Tax (I.T.) based on Mumbai on 02.08.2024 and thereafter additional reply was filed on 21.09.2024, placing on record the relevant documents of granting sanction and what has weighed with the authority to grant sanction under Section 148A (d) of the Act to the reopening of the assessment for the year under consideration. 8. On perus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... she has made 5 separate FCNR Deposits. Therefore, to substantiate her claim, the assessee has not submitted the documents for the purpose of verification regarding the conversion of debit of Rs. 1,22,00,000/- into 5 different FCNR Deposits. Hence, in lack of details/evidences, the contention of the assessee is not found tenable" 12. From the above observation, it is clear that the Assessing Officer has stated following false facts without taking into consideration the reply of the assessee, which ought to have been considered as provided under Section 148A (d) of the Act as such order is required to be passed after considering the reply filed by the assessee. (i) "The assessee has failed to submit the bank statement of the fixed deposits closed during the year." The above statement is contrary to what is placed on record at page no.94, which is a statement as on 30.02.2017 from the HSBC bank which was placed on record by the petitioner along with the reply, which clearly shows that there was withdrawal of Rs. 1,21,00,000/- by following five entries Which has again be placed in to fixed deposit of Rs. 1,22,00,000/- along with the details of the fixed deposits in GBP, starting d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
