SANDEEP SHIVKUMAR TEKRIWAL, BANGALORE V. ASST CIT CEN CIR 38, MUMBAI

ITA 2957/MUM/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0348 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 25-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JANARDHANAN
• Assessee Lawyers: M A C SURESH MUTHUKRISHNAN
• Keywords: Salary income; Additional evidence
• Section: 5(2); 68; 69

Judgement Text

, SMC , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO.2957/MUM/2017 : ASST.YEAR 2009-2010 SHRI SANDEEP SHIVAKUMAR TEKRIWAL 3006, 2 ND FLOOR, 12 TH B MAIN HAL 2 ND STAGE BANGALORE 560 038. PAN : ABGPT9885P. / VS. ASST.COMMISSIONER OF INCOME - TAX CENTRAL CIRCLE 38 MUMBAI. ( / APPELLANT) ( / RESPONDENT) /APPELLANT BY : SHRI M.A.C.SURESH MUTHUKRISHNAN /RESPONDENT BY : SHRI V.JANARDHANAN / DATE OF HEARING : 05.07.2017 / DATE OF PRONOUNCEMENT : 16.08.2017 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF LEARNED CIT(A) DATED 13.12.2016 AND PERTAINS TO ASSESSMENT YEAR 2009-2010. 2. GROUNDS OF APPEAL READ AS UNDER:- 1. THE ORDER OF ASSESSMENT PASSED BY THE LEARNED A 0 IN SO FAR AS IT IS AGAINST THE APPELLANT, IS OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS.16,14,248/- AS 'INCOME FROM OTHER SOURCES' MADE ON ACCOUNT OF THE FOREIGN REMITTANCES RECEIVED UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 3. THE AUTHORITIES BELOW FAILED TO APPRECIATE THE FACT THAT THE APPELLANT HAD MADE THE REMITTANCES BETWEEN HIS OWN ACCOUNTS ITA NO.2957/MUM/2017. SHRI SANDEEP SHIVAKUMAR TEKRIWAL. 2 AND NO INCOME HAS ACCRUED ON THE SAME AND THE ADDITION THUS MADE IS PURELY ON SUSPICION AND SURMISE. 4. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WITH THE HON'BLE CCIT/DG, THE APPELLANT DENIES ITSELF LIABLE TO BE CHARGED TO INTEREST U/S 234-B OF THE ACT, WHICH UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE DESERVES TO BE CANCELLED. 3. IN THIS CASE THE ASSESSING OFFICER MADE THE IMPUGNED ADDITION BY OBSERVING AS UNDER:- 3.1 ON PERUSAL OF ICIC BANK NRE ACCOUNT NO.036601075019 SUBMITTED BY THE ASSESSEE, IT IS NOTICED THAT RS.16,1,248/- IS CLAIMED TO BE DEPOSITED / CREDITED IN THE BANK ACCOUNT ON ACCOUNT OF TRANSFER FROM SELF-INDONESIA ACCOUNT. IN THIS REGARD, THE ASSESSEE WAS ASKED TO SUBMIT FOREIGN INWARD REMITTANCE CERTIFICATE (FIRC) OF BANK, SOURCE OF SUCH FUNDS, PROOF THAT SUCH AMOUNT IS HER OWN FUNDS AND HENCE NOT TAXABLE. 3.2 IN REPLY, THE ASSESSEE HAS NEITHER SUBMITTED FIRC, NOR SUBMITTED PROOF OF BANK ACCOUNT FROM WHICH SUCH FUND WAS TRANSFERRED TO HER. THE ASSESSEE ONLY STATED THAT AMOUNT IS TRANSFERRED FROM HER SALARY INCOME IN INDONESIA. 3.3 THE SUBMISSION GIVEN BY THE ASSESSEE IS NOT ACCEPTABLE AT ALL IN VIEW OF THE FACT THAT IT IS NOT PROVED AT ALL THAT THE AMOUNT IS NOT A TAXABLE INCOME. THUS, THE SUM OF RS.16,14,248/- CREDITED IN THE BANK ACCOUNT OF THE ASSESSEE IS TREATED AS HER INCOME FROM OTHER SOURCES AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 4. BEFORE THE LEARNED CIT(A), THE ASSESSEE FILED ADDITIONAL EVIDENCE IN THE FORM OF FIRC (FOREIGN INWARD REMITTANCE CERTIFICATE) FOR THE CONCERNED AMOUNT FOR US$ 34,925. EXAMINING THE SAME, THE LEARNED CIT(A) HELD THAT ASSESSEES TOTAL EARNING WAS NEARLY US$ 40,000. HENCE IT IS UNLIKELY THAT HE WOULD BE ABLE TO SAVE US$ 35,000. HENCE, THE LEARNED CIT(A) OBSERVED THAT ITA NO.2957/MUM/2017. SHRI SANDEEP SHIVAKUMAR TEKRIWAL. 3 SINCE THE ASSESSEE HAD FAILED TO PRODUCE FURTHER EVIDENCE / SOURCE OF CREDIT, THE DEPOSIT WAS NOT COGENT. 5. AGAINST THE ABOVE ORDER, ASSESSEE IS IN APPEAL BEFORE THE ITAT. 6. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. THE LEARNED COUNSEL OF THE ASSESSEE REFERRED TO THE PROVISIONS OF SECTION 5(2) OF THE INCOME-TAX ACT, 1961. HE FURTHER SUBMITTED THAT THE INCOME OF A NON-RESIDENT WHETHER THE SAME IT TAXABLE OR NOT IS TO BE DECIDED WITH REFERENCE TO PROVISIONS OF SECTION 5(2) AND PROVISIONS OF SECTION 68 OR 69 CANNOT ENLARGE SCOPE OF SECTION 5(2). FOR THIS PROPOSITION, HE REFERRED TO THE FOLLOWING CASE LAWS:- (I) DCIT V. FINLAY CORPORATION LTD. [(2003) 86 ITD 626 (DEL.)] (II) DCIT V. MADHUSUDAN RAO [(2015) 57 TAXMANN.COM 262 (HYD-TRI)] [68 SOT 515] 7. PER CONTRA, THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. HE SUBMITTED THAT THE ASSESSEE HAS NOT DISCHARGED THE ONUS AND HENCE THE AMOUNT HAS RIGHTLY BEEN ADDED TO THE INCOME. 8. UPON CAREFUL CONSIDERATION, I FIND THAT ASSESSEE HAS DULY SUBMITTED FOREIGN INWARD REMITTANCE CERTIFICATE. THE SAID CERTIFICATE DULY SHOWS THAT THE AMOUNT WAS RECEIVED IN THE ASSESSEES ACCOUNT IN INDIA FROM HIS OWN ACCOUNT IN JAKARTA (INDONESIA). THE FIRC SUBMITTED DULY DEMONSTRATES THAT THE AMOUNT HAS DULY BEEN TRANSFERRED FROM HIS ACCOUNT IN JAKARTA. AS PER THE PROVISIONS OF SECTION 5(2), THE FOLLOWING INCOME OF NON-RESIDENT IS TAXABLE:- ITA NO.2957/MUM/2017. SHRI SANDEEP SHIVAKUMAR TEKRIWAL. 4 (A) THE SAME WHICH IS RECEIVED OR IS DEEMED TO BE RECEIVED IN INDIA IN SUCH YEAR BY AND ON BEHALF OF SUCH PERSON; (B) ACCRUES OR ARISE OR IS DEEMED TO ACCRUES OR ARISE TO HIM IN INDIA DURING SUCH YEAR. 9. HERE IT IS NOTED THAT THE SAID SUM WAS DULY TRANSFERRED FROM ASSESSEES ACCOUNT IN JAKARTA (INDONESIA) TO HIS ACCOUNT IN INDIA. HENCE THIS SUM IS CLEARLY NOT TAXABLE UNDER THE PROVISIONS OF SECTION 5(2). THIS PROPOSITION IS DULY SUPPORTED BY THE CASE LAWS CITED BY THE LEARNED COUNSEL OF THE ASSESSEE AS ABOVE. FURTHERMORE, IT IS NOTED THAT FOR THE ASSESSMENT YEAR 2010-2011, THE CIT(A) HAS ACCEPTED SUCH TRANSFER OF FUNDS FROM ASSESSEES ACCOUNT IN JAKARTA IN HIS ACCOUNT IN INDIA AS DULY EXPLAINED AND HENCE NOT TAXABLE IN INDIA. 10. HENCE IN THE BACKGROUND OF THE DISCUSSION AND PRECEDENTS, I SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED ON THIS 16 TH DAY OF AUGUST, 2017. SD/- ( SHAMIM YAHYA ) ACCOUNTANT MEMBER MUMBAI; DATED : 16 TH AUGUST, 2017. DEVDAS* ITA NO.2957/MUM/2017. SHRI SANDEEP SHIVAKUMAR TEKRIWAL. 5 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT, MUMBAI. 4. / CIT(A), MUMBAI 5. , , / DR, ITAT, MUMBAI 6. [ / GUARD FILE.