Dr.Balachandran Nair M, Trivandrum V. The ACIT, Trivandrum

ITA 149/COCH/2016

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 4045 (ITAT-COCHIN)
• Duration Of Justice: 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-08-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 05-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A DHANARAJ
• Assessee Lawyers: A S NARAYANAMOORTHY
• Keywords: Residential status; Additional evidence; Reassessment proceedings
• Section: 143(3); 69; 148; 6

Judgement Text

ITA NO S 146 TO 156/C/2016 1 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH KOCHI BEFORE S/ SHRI B P JAIN , AM & GEORGE GEORGE K, JM ITA NO S. 14 6 TO 156/COCH/2016 (A SST YEAR S 2002 - 04 TO 2013 - 14 ) DR BALACHANDRAN NAIR M 88 ASHA DEEPAM PTP NAGAR PO TRIVANDRUM 695 038 VS THE ASST COMMR OF INCOME TAX CIRCLE 1(2), TRIVANDRUM ( APPELLANT) (RESPONDENT) PAN NO. ABUPN9358F ASSESSEE BY SHRI A S NARAYANAMOORTHY REVENUE BY SH A DHANARAJ, SR DR DATE OF HEARING 31 ST AUG 2016 DATE OF PRONOUNCEMENT 5 TH SEPT 2016 ORDER PER B ENCH : THESE APPEALS, AT THE INSTANCE OF THE ASSESSEE, ARE DIRECTED AGAINST DIFFERENT ORDERS OF THE CIT(A). THE RELEVANT ASSESSMENT YEARS ARE 2003 - 04 TO 2013 - 14. 2 THESE APPEALS ARE HAVING COMMON ISSUES AND HENCE THEY WERE HEARD TOGETHER AND DISPOSED OFF BY THIS CONSOLIDATED ORDER. 3 IN SOME OF THE APPEALS, THE ASSESSEE HAD CHALLENGED THE REOPENING OF THE ASSESSMENTS. THE ISSUE, ON MERITS FOR ALL THE ASSESSMENT YEARS, IS ADDITION ON ACCOUNT OF DEPOSITS IN ASSESSEES BANK ACCOUNT WITH HSBC BANK GENEVA AND ITA NO S 146 TO 156/C/2016 2 SBI NRI ACCOUNT IN THE NAME OF HIS DAUGHTER , IN WHICH ASSESSEE IS A JOINT ACCOUNT HOLDER. 4 BRIEFLY STATED THE FACTS OF THE CASE ARE AS FOLLOWS: THE ASSESSEE IS A D OCTOR BY PROFESSION. IT IS CLAIMED THAT HE WAS A NRI FOR CONTINUO U S PERIOD OF 25 YEARS WO RKING IN THE HEALTH DEPARTMENT OF SULTANATE OF OMAN. HE HAD RETURNED TO INDIA IN JULY 2000. THE ASSESSMENTS FOR THE AY 2001 - 02 TO 2013 - 14 WERE RE - OPENED. THE ASSESSMENT S FOR THE A Y 2001 - 02 AND 2002 - 03 WERE COMPLETED WITHOUT DISTURBING THE RETURNED INCOM E , ACCEPTING THE ASSESSEES RESIDENTIAL STATUS AS RESIDENT BUT NOT ORDINARILY RESIDENT . THE AO CONCLUDED THE REASSESSMENT FOR THE ASSESSMENT YEARS 2003 - 04 TO 2013 - 14 BY ADDING VARIOUS DEPOSITS IN HSBC BANK ACCOUNT MAINTAINED BY THE ASSESSEE IN GENEVA. THE AO ALSO ADDED DEPOSITS MADE IN SBI NRI ACCOUNT TRIVANDRUM IN THE NAME OF THE ASSESSEE AND HIS DAUGHTER . THE ADDITIONS WERE MADE U/S 69 OF THE I T ACT. 5 AGGRIEVED BY THE ASSESSMENTS CONCLUDED, THE ASSESSEE PREFERRED APPEALS TO THE CIT(A). BEFORE TH E CIT(A), THE ASSESSEE HAD RASIED THE ISSUE OF VALIDITY OF THE REOPENING OF THE ASSESSMENT AND ALSO ON MERITS THAT THE ADDITION MADE U/S 69 OF THE ACT, IS NOT JUSTIFIED. THE CIT(A) REJECTED ALL THE CONTENTIONS RAISED BY THE ASSESSEE AND CONFIRMED THE A SSESSMENTS CONCLUDED U/S 143(3) R.W.S 147 OF THE I T ACT. ITA NO S 146 TO 156/C/2016 3 6 AGGRIEVED BY THE ORDERS OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US. THE LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ADDITION ON ACCOUNT OF DEPOSITS IS NOT WARRANTED , SINCE THE MAJORIT Y OF DEPOSITS WERE MADE PRIOR TO THE YEAR 2000, WHEN THE ASSESSEE WAS A NR. IT WAS SUBMITTED THAT THE DEPOSITS WERE RENEWED PERIODICALLY AND ARE NOT FRESH DEPOSITS MADE IN THE RELEVANT ASSESSMENT YEARS. THE ASSESSEE HAS ALSO SUBMITTED A PETITION ACCOMPANI ED BY AN AFFIDAVIT FOR THE ADMISSION OF ADDITIONAL EVIDENCE. THE ADDITIONAL EVIDENCES ARE IN THE FORM OF A CERTIFICATE ISSUED BY HSBC BANK GENEVA AND SBI NRI BRANCH, TRIVANDRUM. THE CONTENTS OF THE CERTIFICATE ARE TO THE EFFECT THAT THE DEPOSITS WERE MADE PRIOR TO THE YEAR 2000 AND MOST OF THESE DEPOSITS WERE RENEWED IN THE CONCERNED ASSESSMENT YEARS. THE ASSESSEE HAS FILED THE AFFIDAVIT STATING THE REASONS AS TO WHY THE ABOVE SAID CERTIFICATE ISSUED BY THE BANK S COULD NOT BE FURNISHED BEFORE THE INCOME T AX AUTHORITIES EARLIER. THE LD COUNSEL SUBMITTED THAT 95% OF THE ADDITION MADE BY THE AO , IS FOR THE DEPOSITS MADE PRIOR TO THE YEAR 2000 , WHICH WERE RENEWED IN THE CONCERNED ASSESSMENT YEARS AND HENCE, THE ADDITION OUGHT TO BE DELETED. THEREFORE, IT WAS P RAYED THAT THE ADDITIONAL EVIDENCE, NOW PRODUCED IN THE FORM OF CERTIFICATE ISSUED BY THE CONCERNED BANK S , IS RELEVANT WHICH GOES TO THE ROOT OF THE ISSUE AND FOR THE SUBSTANTIAL CAUSE AND JUSTICE, THE SAME NEED TO BE AD MITTED ON RECORD. THE LD DR, PRESEN T WAS DULY HEARD. 7 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ADDITION , MADE U/S 69 OF THE ACT , IS WITH REGARD TO THE DEPOSITS MADE IN TWO ITA NO S 146 TO 156/C/2016 4 BANK ACCOUNTS. IT IS THE CLAIM OF THE ASSESSEE THAT THESE ARE OLD DEPOSITS MADE PRI OR TO THE YEAR 2000, WHEN THE ASSESSEE WAS A NRI, HENCE, WAS NOT LIABLE TO BE TAXED IN INDIA. THE ADDITION MADE IN THE CONCERNED ASSESSMENT YEARS, ACCORDING TO THE ASSESSEE, IS ON ACCOUNT OF THE RENEWAL OF THE OLD DEPOSITS. THE ASSESSEE HAS FILED A PETITI ON UNDER RULE 29 OF THE ITAT RULES, 1963 FOR ADMISSION OF THE ADDITIONAL EVIDENCE. THE ADDITIONAL EVIDENCES, NOW PRODUCED, ARE THE BANK CERTIFICATE S TO THE EFFECT THAT THE DEPOSITS MADE IN THE EARLIER YEAR, ARE RENEWED IN THE CURRENT ASSESSMENT YEARS. TH E ASSESSEE HAS ALSO FILED AN AFFIDAVIT STATING THE REASONS FOR NOT PRODUCING THESE ADDITIONAL EVIDENCES BEFORE THE INCOME TAX AUTHORITIES. THE RELEVANT PORTION OF THE AFFIDAVIT FILED BY THE ASSESSEE, WITH REGARD TO NON FURNISHING OF THE CERTIFICATE BEFORE THE AUTHORITIES BELOW, READ AS FOLLOWS: AT THE TIME OF HEARING BEFORE THE ASSESSING OFFICER ON VARIOUS DATES , DOCUMENTS IN THE FORM OF DETAILS OF CREDITS , HOLDING STATEMENTS ISSUED BY HSBC BANK ON QUARTER END DATES , CERTIFICATE ISSUED BY STATE BANK OF I NDIA , TRIVANDRUM ETC WERE FILED , BUT THE ASSESSMENTS WERE COMPLETED BY DISREGARDING THE EVIDENCES FILED. THE ADDITION WAS U/S 69 IN RESPECT OF BANK DEPOSITS AND OTHER INVESTMENTS WHICH WERE MATURED / REDEEMED DURING THE RELEVANT PERIOD AND ALSO THE DEPOSIT I N MY DAUGHTERS ACCOUNT TAKEN AS MINE. THE LEARNED COMMISSIONER (APPEALS) IN SPITE OF THESE DOCUMENTS DID NOT GRANT ANY RELIEF AND THE APPEALS FILED WERE DISMISSED. AS SERIOUS HARM AND PREJUDICE WAS CAUSED TO ME DUE TO NOT PROPERLY APPRECIATING THE EVIDEN CES ALREADY FILED , I APPROACHED HSBC GENEVA AND STATE BANK OF INDIA , NRI BRANCH , TRIVANDRUM FOR FURTHER DOCUMENTARY EVIDENCES LINKING THE INDIVIDUAL CREDITS IN THE BANK ACCOUNTS WITH THE MATURITY / REDEMPTION PROCEEDS OF MY INVESTMENTS MADE EARLIER WHEN I W AS A NON RESIDENT . REA S SESSMENT PROCEEDINGS FOR THE THIRTEEN YEAR S FROM ASSESSMENT YEAR 2001 - 02 TO 2013 - 14 WERE COMMENCED BY ISSUE OF NOTICES UNDER SECTION 148 WHICH WERE SERVED ON ME ON 19 . 11 . 2014 . ASSESSMENTS FOR ALL THE YEARS WERE COMPLETED BY 17.04.2 015. THUS ENTIRE REASSESSMENT PROCEEDINGS RELATING TO THIRTEEN YEARS WERE COMPLETED WITHIN A SPAN OF FIVE MONTHS RESULTING IN LACK OF SUFFICIENT OPPORTUNITY TO PRODUCE DOCUMENTS RELATING TO THIRTEEN YEARS BY ME. THE DETAILS CALLED FOR FROM BANKS WERE RELAT ING TO PERIOD MORE THAN FOURTEEN ITA NO S 146 TO 156/C/2016 5 YEARS BACK AND IT TOOK LOT OF TIME FOR OBTAINING THE SAME WHICH WAS BE Y OND M Y CONTROL . THE HSBC GENEVA AND STATE BANK OF INDIA , TRIVANDRUM BRANCH , HAVE NOW ISSUED FURTHER CERTIFICATES / DOCUMENTS LINKING THE CREDITS IN MY BANK ACCOUNTS TO THE EARLIER INVESTMENTS MADE BY ME WHILE I WAS A NON RESIDENT . A S THESE ADDITIONAL DOCUMENT S WERE ISSUED B Y THESE INSTITUTIONS ONLY AFTER DISPOSAL O F THE APPEALS BY THE COMMISSIONER (APPEALS) , THESE EVIDENCES COULD NOT BE PRODUCED BEFO RE THE ASSESSING OFFICER OR THE COMMISSIONER (APPEALS) . IF THESE ADDITIONAL EVIDENCES ARE NOT CONSIDERED WHILE DISPOSING OF THE APPEALS BEFORE THE HONOURABLE TRIBUNAL SERIOUS HARM AND DETRIMENT WILL BE CAUSED TO ME RESULTING IN IRREPARABLE LOSS TO MY INTER EST . UNDER THESE CIRCUMSTANCES I PRAY BEFORE THE HONOURABLE TRIBUNAL , TO KINDLY EXAMINE AND ADMIT THE EVIDENCE NOW FILED TO ENABLE PROPER APPRECIATION OF THE ISSUE IN APPEAL AND IN THE INTEREST OF JUSTICE AND SUBSTANTIAL CAUSE. 7.1 THE CONTENTS OF THE CERTIFICATE ISSUED BY THE HSBC BANK , GENEVA AND SBI NRI BRANCH TRIVANDRUM , IS TO TH E EFFECT THAT THESE DEPOSITS WERE MADE PRIOR TO THE YEAR 2000 AS PER THE BANK RECORDS AND THESE WERE PERIODICALLY RENEWED DURING THE CONCERNED ASSESSMENT YEARS. ACCORDING TO THE LD AR, 95% OF THE ADDITION MADE BY THE AO U/S 69 OF THE ACT WOULD HAVE TO BE DELETED , SINCE THESE ARE OLD DEPOSITS MADE BY THE ASSESSEE IN THE RESPECTIVE BANK , WHEN HE WAS A NRI. WE ARE OF THE VIEW THAT THE CERTIFICATE ISSUED BY THE BANK S, IS RELEV ANT PIECE EVIDENCE , WHICH GOES TO THE ROOT OF THE ISSUE . FOR PROPER ADJUDICATION AND IN THE INTEREST OF SUBSTANTIAL JUSTICE AND EQUITY, THE SAME NEEDS TO BE ADMITTED AND TAKEN ON RECORD. THEREFORE, THESE ADDITIONAL EVIDENCES ARE ADMITTED. SINCE THE ADDIT IONAL EVIDENCES ARE TAKEN ON RECORD, THE MATTER NEEDS FRESH CONSIDERATION BY THE AO. ACCORDINGLY, ALL THE ISSUES RAISED IN THESE APPEALS, ARE RESTORED TO THE FILE OF THE AO. THE AO SHALL DISPOSE OFF THE MATTER AS EXPEDITIOUSLY AS POSSIBLE AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. IT IS ORDERED ACCORDINGLY. ITA NO S 146 TO 156/C/2016 6 8 IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5TH DAY OF SEPT 2016 . SD / - SD/ - ( B P JAIN ) ( GEORGE GEORGE K ) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN: DATED 5 TH SEPT 2016 RAJ* COPY TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) ,TRIVANDRUM 4 . CIT, TRIVANDRUM 5 . DR 6 . GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN