Sri.Mohammed Haris T, Calicut V. The DCIT, Calicut

ITA 426/COCH/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2614 (ITAT-COCHIN)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 28-12-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 10-08-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: C B M WARRIERC A
• Keywords: Residential status
• Section: 132; 12

Judgement Text

ITA NO S. 421 TO 427/C/2015 1 IN THE INCOME TAX APPEL L A TE T R IBUNAL COCHIN BENCH , COCHIN BEFORE S/SH RI B P JAIN , A M & G EORGE GEORGE.K , J M ITA NO S . 421 TO 427/COCH/2015 (ASST YEAR S 2005 - 06 TO 2011 - 12 ) SH MOHAMMED HARIS T ALANKAR MANZIL KANNACHERI KALLA ROAD CALICUT VS THE DY COMMR OF INCOME TAX CIRCLE 1 KOZHIKODE ( APPELLANT) (RESPONDENT) PAN NO. ALEPM8448B ASSESSEE BY SH C B M WARRIER,CA REVENUE BY S/SH SHANTOM BOSE, CIT - DR/ K P GOPAKUMAR, SR DR DATE OF HEARING 28 TH DEC 2015 DATE OF PRONOUNCEMENT 4 TH , JAN 201 6 OR D ER PER BENCH : THESE SEVEN APPEALS, AT THE INSTANCE OF THE ASSESSEE, ARE DIRECTED AGAINST CONSOLIDATED ORDER OF THE CIT(A) DATED 25.5.2015. THE RELEVANT ASSESSMENT YEARS ARE 2005 - 06 TO 2011 - 12. 2 SINCE COMMON ISSUE IS INVOLVED IN THESE APPEALS AND THE Y PERTAIN TO THE SAME ASSESSEE, THESE APPEALS ARE BEING DISPOSE D OF BY THIS CONSOLIDATED ORDER. THE ASSESSEE, IN ALL THESE APPEALS HAS RAISED IDENTICAL GROUNDS EXCEPT FOR ITA NO S. 421 TO 427/C/2015 2 VARIANCE IN FIGURES. THEREFORE, GROUNDS RAISED WITH REGARD TO AY 2005 - 06 IS REPRODUCE D BELOW: 1 THE APPELLANT IS MOHAMMED HARIS T , ALANKAR MANZIL, KANNANCHERI , KALLAI ROAD , KOZHIKODE AND IN REGARD TO THE A.Y 2005 - 06 , THE ASSESSING OFFICER HAS GONE WRONG IN ASSESSING RS . 19,32,623/ - AS THE INCOME OF THE APPELLANT AND THE COMMISSIONER O F INCOME TAX ( APPEALS) HAS GONE WRONG IN CONFIRMING THE ASSESSMENT. 2. THE APPELLANT IS A NON RESIDENT INDIAN FOR THE ASSESSMENT YEAR AND THE REMITTANCE IN THE NRE A/C RS. 19,32,623/ - WITH ICICI BANK IS NOT ASSESSABLE AS THE INCOME OF THE YEAR. 3. FOR T HE ABOVE REASONS AND OTHER ARGUMENTS THOSE MAY BE PUT FORWARD AT THE TIME OF APPEAL HEARING, APPELLANT MAY SUBMIT THAT THE ASSESSMENT IS LIABLE TO BE CANCELLED . 3 BRIEF FACTS OF THE CASE ARE AS FOLLOWS: THE ASSESSEE IS AN INDIVIDUAL AND IS ONE OF THE DI RECTORS OF M /S AL - HIND TOURS AND TRAVELS (P) LTD. THERE WAS A SEARCH U/S 132 OF THE I T ACT IN THE PREMISES OF M/S AL - HIND TOURS AND TRAVELS P LTD ON 10.11.2010. THE ASSESSMENT WAS COMPLETED U/S 153C OF THE ACT IN THE CASE OF THE ASSESSEE FOR THE AY 2005 - 0 6 TO 2011 - 12 . THE AO HAD MADE AN ADDITION WITH RESPECT TO THE DEPOSITS IN NRE ACCOUNT WITH ICICI BANK , CALICUT TREATING THE ASSESSEE STATUS AS A RESIDENT INDIAN AND NOT NRI, AS CLAIMED BY THE ASSESSEE . THE RELEVANT FINDINGS OF THE AO WITH REFERENCE TO THE ABOVE ADDITION READ AS UNDER: 'APART FROM HIS BUSINESS INTERESTS IN INDIA THE ASSESSEE ALSO RUNS VARIOUS CONCERNS ABROAD ESPECIALLY IN SAUDI ARABIA. IN THE RETURN OF INCOME FILED FOR THE A . Y 2005 - 06 THE ASSESSEE HAD CLAIMED HIS RESIDENTIAL STATUS AS 'NRI' . DURING THE COURSE OF HEARING THE ASSESSEE'S REPRESENTATIVE WAS ASKED TO FURNISH THE PASSPORT FOR VERIFICATION OF THE RESIDENTIAL STATUS OF THE ASSESSEE. EVEN THOUGH THE REQUIREMENT WAS MADE TO THE ASSESSEE'S REPRESENTATIVE A LONGTIME BACK, HE HAD NOT PRO DUCED ANY EVIDENCE IN ITA NO S. 421 TO 427/C/2015 3 THIS REGARD, FINALLY THE ASSESSEES REPRESENTATIVE APPEARED AND FILED UNATTESTED PHOTOCOPIES OF THE PASSPORT WHICH WERE NOT ACCOMPANIED BY THE PASSPORT IN ORIGINAL . FROM THE PHOTOCOPIES FILED THE ACTUAL DATES OF ARRIVAL AND DEPARTURE CANNOT BE ASCERTAINED AS THE ENTRIES ARE NOT CLEAR AND HENCE THE EXACT NUMBER OF DATES THE ASSESSEE STAYED IN INDIA CANNOT BE ASCERTAINED AS THE ENTRIES ARE NOT CLEAR AND HENCE THE EXACT NUMBER OF DATES THE ASSESSEE STAYED IN INDIA CANNOT BE FOUND OUT . EVE N OTHERWISE, IN THE ABSENCE OF ORIGINAL DOCUMENTS, THE PASSPORT, THE ASSESSEE'S CLAIM CANNOT BE ADMITTED. EVEN DURING THE POST SEARCH INVESTIGATIONS IT IS SEEN THAT SEVERAL OPPORTUNITIES WERE GIVEN TO ASSESSEE TO CLARIFY HIS RESIDENTIAL STATUS BUT THESE WE RE NOT AVAILED OF. FOR THE REASONS MENTIONED ABOVE THE ASSESSEE'S CLAIM THAT HE WAS A NON - RESIDENT DURING THE RELEVANT PERIOD CANNOT BE ALLOWED AND FOR THE PURPOSE OF ASSESSMENT HE IS TREATED AS A RESIDENT. INCOME FROM ABROAD: AS PER THE DOCUMENTS SEIZE D DURING THE COURSE OF THE SEARCH AND ALSO AS PER THE SWORN STATEMENT RECORDED FROM THE ASSESSEE IT IS NOTICED THAT THE ASSESSEE HAD RECEIVED HUGE INCOME FROM VARIOUS CONCERNS IN UAE , DUBAI , QATAR ETC . THESE WERE QUANTIFIED AS BELOW S.N O . NAME OF FIRM 2007(RS . ) 2008(RS . ) 2009(RS . ) 2010(RS . ) SE I ZED I TEM NUMBER 1. ALHIND TOURISM & - - 1460436 1082628 47 , PAGE 17 & 1E TRAVEL CARQO , UAE 2 . ALHIND MIDDLE EAST 1830552 2815908 1585488 6386700 26 , PAGE 20 TRAVELS 47 , DA QE 5 3 . ALHIND TOURS& - - 82,09,368 - 9 , PAGE 24 TRAVELS DOHA 4 . ALHIND TOURS & - - - 30 , 528 6 , PAGE 2 TRAVELS DUBAI 5 . RESTAURANTS AT SHARJ - 18 , 00 , 000 18 , 00 , 000 18 , 00 , 000 AS PER SWO R N DUBAI & SAUD I STATEMENT TOTAL 1830552 46,15 , 908 1 , 30 , 57 , 301 92 , 99 , 856 2 , 88 , 03 , 617 IN THE SWORN STATEMENT RECORDED ON 10 . 12.2010 , THOUGH THE ASSESSEE HAS ADMITTED THE EXISTENCE OF THE ABOVE CONCERNS HE HAS ALSO STATED THAT HE RECEIVES ONLY A SMALL PORTION OF THE INCOME EARNED BY THESE CONCERNS. THE MAJOR PORT I ON GOES TO THE NATIVE ARAB WHO IS THE ACTUAL OWNE R OF THESE CONCERNS . IT I S A L SO SEEN THAT AGA I NST SI NO . 5 ABOVE THE INCOME ADMITTED FOR 2008 , 2009 & 2010 ARE IDENTICAL FIGURES OF RS . 18 , OO,OOO/ - EACH. IN THE C I RCUMST ANCES , I T WOULD APPEAR THE ABOVE TABLE DOES NOT GIVE A TRUE AND CORRECT STATE OF AFFA I RS . THERE I S ITA NO S. 421 TO 427/C/2015 4 ALSO THE DIFFICULTY THAT THESE FIGURES CANNOT BE CROSS CHECKED FOR VERIFICATION BECAUSE OF PRACT I CAL DIFFICULTIES . ON EXAMINATION OF THE BANK ACCOUNTS OF THE ASSESSEE IT IS NOT I CED THAT THERE ARE HUGE DEPOSITS FROM ABROAD IN THE ACCOUNTS MENTIONED BY HIM. THE ASSESSEE'S RESIDENTIAL STATUS BEING TREATED AS 'RESIDENT' THE ENTIRE DEPOSITS FROM ABROAD ARE TO BE TREATED AS HIS INCOME . AS THESE DEPOSITS GIVES A MORE CORRECT PICTURE OF THE ASSESSEE ' S I NCOME GENERATED ABROAD THESE FIGURES AS MENTIONED BELOW ARE ADOPTED AS THE ASSESSEE'S CORRECT INCOME FROM ACTIVITIES ABROAD . SL.NO F.Y BANK DEPOSITS (RS) 1 2004 - 05 19,32,623.00 2 2005 - 06 18,93,336.40 3 2006 - 07 11,17,3 88.93 4 2007 - 08 43,09,905.46 5 2008 - 09 13,48,498.00 6 2009 - 10 42,50,939.00 7 2010 - 11 2,05,622.00 TOTAL 1,50,58,312.79 FOR THE REASONS DISCUSSED ABOVE THE RECEIPTS FROM ABROAD RELEVANT TO THE AY 2005 - 06 AS SHOWN AGAINST SL NO.1 ABOVE THE SUM OF RS.19 ,32,623/ - TREATED AS THE INCOME OF THE ASSESSEE AND IS BROUGHT TO TAX ACCORDINGLY. 4 THE ABOVE ADDITION MADE BY THE AO WAS CONFIRMED BY THE CIT(A). THE RELEVANT FINDINGS OF THE CIT(A) READS AS UNDER: 5 . 3.1 DURING THE COURSE OF APPEAL PROCEEDINGS , THE APP ELLANT WAS F UR T HE R ASKED TO PRODUCE THE ORIGINAL PASSPORT OR THE WORKING BASED ON THE A RRI VA L AND DEPARTURE WHICH COULD JUSTIFY HIS NRI STATUS . THE APPELLANT HAS SUBMITTED A CHART SHOWING THE ARR I VAL/DEPARTURE AND THE NUMBER OF DAYS OF STAY. HOWEVER , IN SO ME OF THE CO L UMNS THE AR R IVAL / DEPART UR E DESCR I P TI O N S HAVE BEEN MISS I NG . THE C HAR T I S R E PR OD U CED AS U N DER : DETAILS OF PASSPORT Z1404338 ISSUED ON 27.10.2003 AT JEDDAH PAGE DEP.DAE PAGE ARR.DATE TOTAL FY 2003 - 04 4 09.11.2003 7 30.11.2003 4 17.12. 2003 17 17 DAYS ITA NO S. 421 TO 427/C/2015 5 FY 2004 - 2005 4 28 - 05 - 2004 32 03 - 06 - 2004 6 14 09 - 09 - 2004 17 17 - 10 - 2004 18 08 - 12 - 2004 14 04 - 02 - 2005 58 64 DAYS FY 2005 - 2006 25 04 - 08 - 2005 12 14 - 08 - 2005 10 23 21 - 10 - 2005 5 18 - 11 - 2005 28 18 17 - 12 - 2005 25 22 - 12 - 2005 5 37 24 - 12 - 2005 12 23 - 01 - 2006 30 28 10 - 02 - 2006 34 04 - 03 - 2006 22 40 08 - 03 - 2006 95 DAYS FY 2006 - 2007 . - 43 15 - 11 - 2006 19 19 - 11 - 2006 4 44 11 - 12 - 2006 1 2 21 - 02 - 2007 72 47 27 - 03 - 2007 4 80 DAYS FY 2007 - 2008 44 09 - 04 - 2007 8 12 22 - 06 - 2007 50 29 - 07 - 2007 40 31 - 08 - 2007 33 DETAILS OF PASSPORT - Z12SSS39 ISSUED ON 03/09/2007 AT KOZHIKODE 4 05 - 09 - 2007 4 21 - 09 - 2007 16 8 30 - 09 - 2007 9 03 - 10 - 2007 3 9 16 - 10 - 2007 50 22 - 10 - 2007 6 11 26 - 10 - 2007 49 02 - 11 - 2007 7 49 27 - 11 - 2007 14 05 - 12 - 2007 8 47 27 - 12 - 2007 48 29 - 12 - 2007 14 01 - 01 - 2008 3 33 14 - 01 - 2008 53 11 - 02 - 2008 52 16 - 02 - 2008 5 52 10 - 03 - 2008 52 20 - 03 - 2008 10 99 DAYS FY 2008 - 2009 30 29 - 04 - 2008 18 08 - 05 - 2008 48 26 - 07 - 2008 18 28 - 07 - 2008 2 47 26 - 08 - 2008 47 13 - 09 - 2008 25 25 - 11 - 2008 73 2 01 - 12 - 2008 46 14 - 12 - 2008 13 88DAYS ITA NO S. 421 TO 427/C/2015 6 53 07 - 04 - 2009 18 09 - 04 - 2009 2 35 25 - 06 - 2009 18 01 - 07 - 2009 6 36 05 - 08 - 2009 33 07 - 08 - 2009 2 33 05 - 09 - 2009 33 08 - 09 - 2009 3 30 04 - 10 - 2009 32 16 - 10 - 2009 12 27 10 - 11 - 2 009 42 13 - 11 - 2009 3 21 23 - 11 - 2009 32 02 - 12 - 2009 9 29 06 - 01 - 2010 42 08 - 01 - 2010 2 21 03 - 02 - 2010 19 06 - 02 - 2010 3 41 13 - 02 - 2010 42 17 - 02 - 2010 4 19 20 - 02 - 2010 54 24 - 02 - 2010 4 50 DAYS FY 2010 - 2011 41 20 - 05 - 2010 32 25 - 05 - 2010 5 53 01 - 07 - 2010 27 04 - 07 - 2010 3 54 22 - 07 - 2010 28 26 - 07 - 2010 4 27 25 - 08 - 2010 12 31 - 08 - 2010 6 DETAILS OF PASSPORT - J1319609 ISSUED ON 30/08/2010 AT JEDDAH 12 12 - 09 - 2010 18 16 - 09 - 2010 4 18 02 - 11 - 2010 26 06 - 11 - 2010 4 18 10 - 11 - 2010 26 21 - 11 - 2010 11 26 30 - 12 - 2010 8 12 - 02 - 2011 44 25 17 - 03 - 2011 28 19 - 03 - 2011 2 83 DAYS FY 2011 - 2012 28 2 6 - 05 - 2011 29 29 - 05 - 2011 3 26 03 - 08 - 2011 14 18 - 08 - 2011 15 28 17 - 09 - 2011 29 24 - 09 - 2011 7 15 12 - 10 - 2011 29 16 - 10 - 2011 4 19 23 - 10 - 2011 28 26 - 10 - 2011 3 19 01 - 11 - 2011 151 183 DAYS FY 201 2 - 2013 I 8 I 13 - 05 - 2012 I 43 I 43 DAYS G TOTAL 802 802 5.3.2 IT IS SEEN THAT FROM THE APPELLANTS OWN WORKING THAT ONLY ONE OF THE YEARS AS ABOVE, HE COULD BE TREATED AS AN NRI. FURTHER, THE REPLIES SUBMITT ED BY THE APPELLANT AFFIRMS THAT THE ABOVE INCOME HAS BEEN EARNED ABROAD WAS BROUGHT TO INDIA INTO HIS NRE ACCOUNT OF ICICI BANK LTD. AS DEPOSITS. IT HAS BEEN ITA NO S. 421 TO 427/C/2015 7 PLEADED THAT THE ORIGINAL PASSPORT FOR ALL THE YEARS WERE NOT AVAILABLE AT THE TIME OF ASSESSME NT PROCEEDINGS, BUT, LATER ON PERUSAL OF THE PASSPORT, SOME OF THE DATES OF ARRIVAL TO INDIA ARE NOT ASCERTAINABLE AT PRESENT. ARRANGEMENTS ARE MADE FOR OBTAINING CERTIFICATES FROM THE AUTHORITIES CONCERNED FOR THE MISSING DETAILS OF ARRIVAL AND DEPARTURE. 5.3.4 AS PER APPELLANTS OWN SUBMISSION, SINCE THE DATES OF DEPARTURE AND ARRIVAL ARE NOT ASCERTAINABLE, AND THE NUMBER OF DAYS WHICH HAVE BEEN WORKED OUT IS LESS THAN THE QUALIFYING NUMBER OF DAYS FOR CLAIMING THE STATUS AS AN NRI; IT IS HELD THAT THE AO HAS CORRECTLY DETERMINED THE RESIDENTIAL STATUS OF THE APPELLANT. IN SUCH A C A SE, THE BANK DEPOSITS HAVE RIGHTLY BEEN TREATED AS INCOME AND BROUGHT TO TAX. THUS, FINDING NO INFIRMITY IN THE ORDER OF THE AO, THE SAME IS UPHELD AND APPEAL ON THIS GROUND IS DISMISSED FOR ALL THE ASSESSMENT YEARS. 5 AGGRIEVED, THE ASSESSEE IN APPEAL BEFORE US. THE LD AR FAIRLY SUBMITTED THAT THE DATE OF DEPARTURE AND ARRIVAL WITH RESPECT TO THE ASSESSEE IN INDIA CANNOT BE PROPERLY ASCERTAINED AND THEREFORE, THE CLAIM OF STAT US AS NRI CANNOT BE CONCLUSIVELY ESTABLISHED. IN THIS CONTEXT, THE LD AR FAIRLY SUBMITTED THAT THE ADDITION MADE WITH REFERENCE TO THE DEPOSITS IN THE NRE ACCOUNT WITH ICICI BANK IS TO BE CONFIRMED. THE LD DR PRESENT HAD FILED A BRIEF NOTE WHICH READS AS UNDER: RESIDENTIAL STATUS: THE APPELLANT HAD NOT PROVEN BEFORE THE ASSESSING OFF I CE R T HAT H E I S A , NON - RESIDENT . EVEN BEFORE THE APPE L LATE COMMISSIONE R, THE DATA F IL ED HAD BEEN ANALYZED AND HAD BEEN ADJUDICATED THAT THE APPEL L ANT IS A RESIDENT ..PAR A 5.AND ESPECIALLY, SUB PARA 5.3.1 OF THE APPELLATE ORDER IS SPECIFIC I THIS REGARD. REVENUE IS RELYING ON THE ADJUDICATION OF THE APPELLATE COMMISSIONER ON FACTS. DEPOSITS IN NRE ACCOUNT TREATED AS INCOME: T HE APPELLANT HAD C L A I MED T H A T THESE DEPOS I TS A R E N O T T AXA BL E BEING NRE DEPOS I TS . HOWEVER , T HE APPE L LA N T CO U LD N O T P RO DUC E A NY D A T A ITA NO S. 421 TO 427/C/2015 8 REGARD I NG HI S TR U E TAXAB L E I NCO M E . THE ASSESS I NG OFF I C ER H A S TR EA T ED THESE DEPOS I TS AS THE TRUE I NCOME OF THE ASSESSEE. THE REASONING GIVEN BY THE AO IN PARA 3 OF THE A SSESSMENT ORDER HAS BEEN PUT TO A THREADBARE ANALYSIS BY THE APPELLATE COMMISSIONER IN PARA 5 OF THE APPELLATE ORDER. REVENUE IS RELYING ON THE ADJUDICATION OF THE APPELLATE COMMISSIONER ON FACTS AS WELL AS IN LAW. 6 WE HAVE CONSIDERED THE RIVAL SUBMISS IONS AND PERUSED RELEVANT MATERIAL ON RECORD. THE ASSESSEE HAS NOT BEEN ABLE TO CONCLUSIVELY PROVE HIS RESIDENTIAL STATUS IS THAT OF AN NRI. S INCE THE ASSESSEE IS NOT AN NRI, HIS GLOBAL INCOME IS LIABLE TO BE TAXED IN INDIA, INCLUDING THE DEPOSITS IN NRE BANK ACCOUNT WITH ICICI BANK. IT IS ORDERED ACCORDINGLY. 7 IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 4 TH , DAY OF JAN 2016 . SD / - SD/ - ( B P JAIN ) ( GEORGE GEORGE K ) ACCOUNTANT MEMBER JUDICIAL ME MBER COCHIN: DATED 4 TH , JAN 2016 RAJ* ITA NO S. 421 TO 427/C/2015 9 COPY TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT , 5 . DR 6 . GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN