9911796707
TMI Blog2025 (2) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... TAT DELHI] held that if identity of non-resident remitter is established and money has come in through banking channels, it cannot be treated as deemed income under section 68 or 69.
' in the assessee`s case under consideration, the assessee purchased the property on 25.02.2010, and major payment was made to Oberoi Realty Limited in the year 2010 itself. Therefore, it should not be taxable in the assessment year 2018-19. That is, no addition under section 69 could be made in year under consideration in respect of investment in immovable property made in earlier year(s).
Money brought in India by non-resident for investment or for other purposes is not liable to tax under provisions of Act and question of assessment to income-tax arises only when there is no evidence to show that amount in question in fact represents remittance from abroad, for that reliance is based on the decision of the Coordinate Bench of ITAT Panaji in the case of Iqbal Ismail Virani, [2021 (3) TMI 664 - ITAT PANAJI] Thus addition made by the assessing officer/DRP needs to be deleted - Appeal of the assessee is allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... not consider the submissions made by him during the course of assessment, therefore, the assessing officer was again requested to give his comments on the submission of the assessee, by way of remand report, which also contained additional evidences in the form of bank statement of Chetna Chandrakant Mehta (assessee's wife) for the relevant year and also copies of income tax return and computation of income of Chetna Chandrakant Mehta for AYs 2013-14 to 2017-18. It was assessee's contention that all the payments were made from the account of his wife as it is a joint property purchased in the name of the assessee and his wife and that only a meager parts of the payment were made during earlier years. The details were sent to the assessing officer, who sent his remand report on 04.12.2023 to the DRP. In his remand report, the assessing officer has mentioned that the assessee has only produced the bank account statement of Chentna Chandrakant Mehta and that being an NRI account, the credits appearing in the account has not been properly explained by the assessee. In rejoinder, the assessee again reiterated that the payments have been made through bank account and all sum have been r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Ld. Counsel for the assessee submitted that the immovable property was purchased in the year 2010 and part payment was made in the year 2010, which clearly evident from the bank statement and moreover, the payment was made through banking channel. Therefore no addition should be made in the hands of assessee. 6. On the other hand, Learned Senior Departmental Representative (Ld. Sr. DR) for the Revenue submitted that the appeal filed by assessee is in a non-resident status and assessee has not filed the appropriate affidavit to the effect to appoint any person in India to argue his case. Besides the genuineness of the payment made by the assessee is not proved thus, the addition made by the assessing officer may be sustained. 7. We have heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld CIT(A) and other materials brought on record. The ld. Counsel for the assessee, submitted before the Bench, the following documents and evidences, which were also on the file of the lower authorities: (1). Detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od 01/01/2017 to 3 1-12-2017 (PB- 184-189) (19). Copy of Bank Statement of assessee's wife Chetna Chandrakant Mehta NRI Account No. 087010100295956 for the period 01/01/2018 to 31-12-2018 (PB-190- 200) (20). Bank Statement of Anil Dhansuklal (PB-203-217) (21). Copy of Passport of issued by Republic of Portuguese from 25.03.2009 to 25.03.2014 (PB-218-235) (22). Copy of Passport of issued by Republic of Portuguese from 25.03.2022 to 25.03.2017,(PB-236-243) 9. The Copy of the allotment letter issued to the assessee, by Oberoi Realty Ltd, on 25.02.2010, is reproduced below, to the extent applicable for our analysis: OBEROI CONSTRUCTIONS Building Concrete Dreams Ref. No. AG65 25 February 2010 Mr. Anil Dhansukla! Mr. Birju Anil Dhansuklal Mrs. Chetna Chandrakant Mehta AV. BOA ESPERANÇA, LOTE 4,45 1C 3C, PORTUGAL, LISBOA - 1990-044 Dear Sir/Madam, Re: Premises admeasuring 100.43 square metres (carpet area) approximately equivalent to 1081 square feet (carpet area) approximately equivalent to 123.12 square metres (usable area) approximately equivalent to 1325.27 square feet (usable area) approximately equivalent to 169.08 square metres (saleable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter (3), ledge (3) and service / dry yard. 4. The sale price of the Said Premises shall be Rs. 22,476,000/- (Rupees Two Crores Twenty Four Lakhs Seventy Six Thousand Only) in addition to other payments as mentioned in clause 10 herein below and you shall pay the sale price of Rs. 22,476,000/- (Rupees Two Crores Twenty Four Lakhs Seventy Six Thousand Only) to us in the following manner: (a) Rs. 4,495,200/- (Rupees Fourty Four Lakhs Ninety Five Thousand Two Hundred Only), being the earnest money, which has been paid, prior hereto the receipt whereof is acknowledged at the foot of this writing. (b) Rs. 2,247,600/- (Rupees Twenty Two Lakhs Fourty Seven Thousand Six Hundred Only) to be paid on receipt of amended approved plans of the building in which the Said Premises is situated. (c) Rs. 2,247,600/- (Rupees Twenty Two Lakhs Fourty Seven Thousand Six Hundred Only) to be paid on receipt of commencement certificate from the MCGM. (d) Rs. 9,889,440/- (Rupees Ninety Eight Lakhs Eighty Nine Thousand Four Hundred and Fourty Only) to be paid in 49 equal installments on completion of each of 49 slabs of the building in which the Said Premises is situated. (e) Rs 899,040/- (Rupees E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support of its claim, they cannot be brushed aside based on surmises. 11. The whole exercise is to be based on facts and it is the duty of the assessing officer to marshal all the facts and come to a logical conclusion about the income of the assessee for the year under consideration. For that we rely on the Judgment of Hon'ble Supreme Court in case of Sreelekha Bannerjee (491 ITR 122), wherein it was held that " ..... before the department rejects such evidence, it must either show an inherent weakness in the explanation or rebut it by putting to the assessee some information or evidence, which it has in possession ..." 12. From the above facts, we find that there was no mistake on the part of the assessee to submit the relevant documents and evidences and explanations before the assessing officer, as well as DRP. The assessing officer, as well as DRP, did not find any mistake in the documents and evidences and explanation submitted by the assessee, except to say that these documents and evidences are not acceptable. It is not tenable in the eye of law. The assessing officer and ld DRP, do not mention why they are not accepting these evidences, and when an assessee has all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eference to those amounts whose origin of source can be located in India. Therefore, the provisions of s. 68 or 69, in our opinion, have limited application in the case of non-resident." 11.2 The decision in the case of Finlay Corporation Ltd. (supra) has been followed in the case of Smt. Susila Ramasamy (supra), holding as under : "The assessee, who is a non-resident, brought money into India through banking channel and the manner in which this money was utilized in India is described in the Annexure. We have observed in the above paras that because of the mode of banking channel, admittedly, used for the remittance in this case, the onus on the assessee under s. 69 stood discharged, and therefore, it was not taxable in India under s. 5(2)(b) of the Act. The CBDT circular (supra) squarely supports the case of the assessee. The fact that the transactions and events narrated in the Annexure look curious and suspicious makes no difference to the conclusions that we have drawn in this case, as per law, in the above paras." 11.3 Apropos applicability of CBDT Circular No/5, dt. 20th Feb., 1969, the Tribunal in the case of Saraswati Holding Corpn. Inc. (supra), wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of evidence available on the record and the discharge of burden by the assessee is also to be decided on the basis of documents filed by the assessee and facts and circumstances of each case and on that basis a reasonable view is to be taken as to whether the assessee has discharged the primary onus of establishing the identity of share applicant, its creditworthiness and genuineness of the transaction. From the documents filed during the course of assessment and before CIT(A), the independent existence of the share applicants in Russia is clearly established. The assessee's application to FIPB for raising the capital contains all the relevant details which is favourably accepted by the Board, particularly by allowing the assessee to raise further capital without approaching the FIPB. The transactions are through banking channels. Thus, the gamut of evidence does not leave any doubt in the discharge of primary burden of the assessee. On the issue CBDT circular and Finlay Corporation Ltd.Judgment (supra) also we are in agreement with the learned counsel for the assessee that in these circumstances of the case, moneys remitted by non-residents through banking channel outside Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of amounts remitted to India, from sources outside India which are not incomes under provisions of Act. Similarly, the Co-ordinate Bench of ITAT Mumbai, in the case of Hemant Mansukhlal Pandya [2018] 100 taxmann.com 280 (Mumbai - Trib.), held that where additions were made to income of assessee, who was a non- resident since 25 years, since, no material was brought on record to show that funds were diverted by assessee from India to source deposits found in foreign bank account, impugned additions were unjustified 16. Further, in the assessee`s case under consideration, the assessee purchased the property on 25.02.2010, and major payment was made to Oberoi Realty Limited in the year 2010 itself. Therefore, it should not be taxable in the assessment year 2018-19. That is, no addition under section 69 could be made in year under consideration in respect of investment in immovable property made in earlier year(s). For that, reliance is placed on the decision of the Co-ordinate Bench of ITAT Delhi in the case of Km. Preeti Singh, [2019] 103 taxmann.com 293 (Delhi - Trib.). Moreover, Money brought in India by non-resident for investment or for other purposes is not liable to tax und ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
