SHRI SUDHIR CHOPRA, Delhi V. THE ACIT 1(2), Bhopal

ITA 513/IND/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5666 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 03-03-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 03-07-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJEEV VARSHANE
• Assessee Lawyers: ASHWINI KUMAR NARANG
• Section: 32; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI B.C.MEENA, ACCOUNTANT MEMBER I.T.A.NO.513/IND/2013 A.Y. : 2010-11. SHRI SUDHIR CHOPRA, ACIT, DELHI VS BHOPAL APPELLANT RESPONDENT PAN NO. AADPC6596Q APPELLANTS BY : SHRI ASHWINI KUMAR NARANG, C. A. RESPONDENT BY : SHRI RAJEEV VARSHANE, CIT O R D E R PER D.T.GARASIA, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A)-II, RAIPUR, BHOPAL, DATED 28.03.2013 FOR THE ASSESSMENT YEAR 2010-11. DATE OF HEARING : 03.03.2016 DATE OF PRONOUNCEMENT : 03 .0 3 .2016 SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 2 2 2. THE FOLLOWING GROUND HAS BEEN TAKEN BY THE ASSESSEE :- THAT THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ADDITION ON ACCOUNT OF ALLEGED UNEXPLAINED FOREIGN CURRENCY FOUND FROM THE ASSESSEE TO THE EXTENT OF RS. 4,31,825/-. THE SAID DECISION IS ARBITRARY, CONTRARY TO THE FACTS OF THE CASE AND LAW. 3. THE ASSESSEE IS A NON-RESIDENT INDIAN( NRI) AND LIV ING IN SHARJAHA, UAE ALONGWITH HIS FAMILY MEMBERS SINCE 1996. SEARCH PROCEEDINGS UNDER SECTION 132 WERE CONDUCTED AT THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 23.07.2009. DURING THE COURSE OF SEARCH PROCEEDINGS, FOREIGN CURRENCY OF US 4 48.667 AND UAE DIRHAM 3.335 WAS FOUND FROM THE BANK LOCKERS OF THE ASSESSEE AND HIS FAMILY MEMBERS. THE ASSESSEE DURING THE COURSE OF STATEMENT RECORDED U/S 132(4) EXPLAINED THAT THE SAID FOREIGN CURRENCY WAS BROUGHT BY HIM A ND HIS FAMILY MEMBERS AT THE TIME OF THEIR VARIOUS TRAVELS TO INDIA. THE ASSESSEE DURING THE COURSE OF SAME STATEMENT EX PLAINED THAT THE SAID FOREIGN CURRENCY WAS OUT OF THE WITHD RAWALS SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 3 3 MADE BY HIM FROM HIS OVERSEAS BANK ACCOUNTS. THE AO HAS FURNISHED THE EXPLANATION REGARDING FOREIGN CURRENC Y, FURNISHED THE DETAILS OF TRAVELS TO INDIA BY HIM AN D HIS FAMILY MEMBERS, COPIES OF RBI REGULATIONS TO PROVE THAT HE WAS ENTITLED TO BRING FOREIGN CURRENCY INTO INDIA AND C OPIES OF BANK STATEMENT OF VARIOUS WITHDRAWALS MADE BY HIM IN US DOLLARS AND UAE DIRHAM FROM HIS OVERSEAS BANK ACCOUNTS TO P ROVE THE SOURCE OF ABOVE FOREIGN CURRENCY. THE ASSESSEE ALSO EXPLAINED THAT A LARGE PORTION OF THE FOREIGN CURRE NCY WAS BROUGHT INTO INDIA ON HIS RECENT TRAVELS TO TAKE CA RE OF ANY UNFORESEEN EXPENSES AND NEED FOR A LONG STAY IN TO INDIA ON HIS RECENT TRAVELS TO TAKE CARE OF ANY UNFORESEEN E XPENSES AND NEED FOR A LONG STAY IN INDIA FOR HIS ORTHOPEDIC SU RGERY. THE AO MADE THE ADDITION OF RS. 22,48,969/-, BUT THE CI T(A) HAS CONFIRMED THE ADDITION OF RS. 4,31,825/-. THEREFORE , THE ASSESSEE IS IN APPEAL BEFORE US. 4. THE ASSESSEE HAS FILED THE WRITTEN SUBMISSION BEFOR E US, WHICH IS REPRODUCED AS UNDER :- SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 4 4 THE ASSESSEE IS A NON-RESIDENT INDIAN (NRI) AND HA S BEEN LIVING IN SHARJAH, UAE ALONG WITH HIS FAMILY MEMBERS SINCE 1996. SEARCH PROCEEDINGS UNDER SEC. 1 32 WERE CONDUCTED ON THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 23/07/2009 SHORTLY AFTER ARRIVAL OF ASS ESSEE AND HIS FAMILY TO INDIA FOR A MAJOR ORTHOPEDIC SURG ERY OF HIS SON AT MUMBAI. DURING THE COURSE OF SEARCH PROCEEDINGS, FOREIGN CU RRENCY OF US $ 48,667 AND UAE DIRHAM 3,355 WAS FOUND FROM THE BANK LOCKERS OF ASSESSEE AND HIS FAMILY MEMBERS . THE ASSESSEE, DURING THE COURSE OF SEARCH ITSELF, E XPLAINED THAT THE SAID CURRENCY WAS BROUGHT IN TO INDIA FROM OVERSEAS BY ASSESSEE AND HIS FAMILY MEMBERS AT THE TIME OF THEIR VARIOUS TRAVELS TO INDIA. IT WAS ALSO SUBM ITTED THAT THE SAID FOREIGN CURRENCY WAS OUT OF THE WITHDRAWAL S MADE BY ASSESSEE FROM HIS OVERSEAS BANK ACCOUNTS AN D WAS MEANT FOR EXPENSES FOR HIS SON'S SURGERY TO BE PERFORMED IN MUMBAI. LATER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 5 5 ASSESSEE FURNISHED - THE DETAILS OF TRAVELS TO INDIA BY HIM AND HIS FAMI LY MEMBERS; - COPIES OF RBI REGULATIONS TO PROVE THAT HE WAS ENTITLED TO BRING FOREIGN CURRENCY IN TO INDIA; AND - COPIES OF BANK STATEMENTS OF HIS OVERSEAS BANK ACCOUNTS SHOWING WITHDRAWALS MADE BY HIM IN US DOLLARS AND UAE DIRHAM TO PROVE THE SOURCE OF ABOVE FOREIGN CURRENCY. THE ASSESSEE ALSO EXPLAINED THAT A LARGE PORTION OF THE FOREIGN CURRENCY WAS BROUGHT IN TO INDIA ON HIS REC ENT TRAVELS TO INDIA TO TAKE CARE OF ANY UNFORESEEN EXP ENSES AND NEED FOR A LONG STAY IN INDIA FOR RECUPERATION OF HIS SPASTIC SON'S MAJOR HIGH LEVEL GRADE VINII ORTHOPED IC SURGERY. THE LEARNED ASSESSING OFFICER, HOWEVER, REJECTED TH E EXPLANATION OF THE ASSESSEE AND MADE AN ADDITION OF RS. SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 6 6 22,48,969 TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF ALLEGED UNEXPLAINED FOREIGN CURRENCY FOUND. THE SAID ADDITION WAS CONTESTED BY THE ASSESSES IN APPEAL BEFORE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ACCEPTED THE EXPLANATION OF THE ASSESSEE BUT PARTLY UPHELD THE ADDITION TO THE EXTENT OF RS. 4,3 1,825/-. THE ASSESSEE, ON BEING AGGRIEVED OF THE DECISION OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IN UPHOLDING THE ADDITION TO THE EXTENT OF RS. 4,31,82 5/- HAS PRESENTED THIS PRESENT APPEAL BEFORE YOUR HONOR. THE ASSUMPTION MADE BY THE LEARNED CIT (APPEALS) THAT 35% OF CASH WITHDRAWALS MADE FROM FOREIGN BANK ACCOUNTS OF THE ASSESSEE WERE SPENT IS ERRONEOUS. DURING THE COURSE OF ASSESSMENT, THE ASSESSEE FURNI SHED DETAIL OF FOREIGN CURRENCY OF US$ 70,000 WITHDRAWN FROM HIS BANK ACCOUNT WITH STANDARD CHARTERED BANK SHARJ AH AND US$ 20,407.50 RECEIVED FROM HIS OVERSEAS EMPLOY ER. SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 7 7 THE ASSESSEE ALSO FILED COPY OF BANK STATEMENT OF S AID ACCOUNT. THE LEARNED CIT APPEALS ACCEPTED THE EXPLANATION OF THE ASSESSEE BUT HELD THAT CASH WITHDRAWALS MADE FROM U S DOLLAR DENOMINATED OVERSEAS BANK ACCOUNTS AMOUNTING TO US$ 60,000 ONLY WERE LIKELY TO BE AVAILABLE WITH TH E ASSESSEE FOR THE PURPOSE OF REPATRIATION TO INDIA. FURTHER, LEARNED CIT (A) PRESUMED 35% OF SAID US $ 60,000 TO HAVE BEEN SPENT AND ONLY BALANCE US $ 39, 000 WAS ACCEPTED TO HAVE BEEN REPATRIATED AND THE ADDIT ION FOR BALANCE US $ 9,667 (TOTAL CURRENCY FOUND OF US $ 48,667 MINUS US $ 39,000) WAS UPHELD. THE DECISION OF LEARNED CIT (A) IN UPHOLDING ADDITI ON ON ACCOUNT OF ALLEGED UNEXPLAINED FOREIGN CURRENCY TO THE EXTENT OF US $ 9,667 (RS. 4,31,825) IS NOT TENABLE FOR FOLLOWING SUBMISSIONS: THE LOCAL CURRENCY OF THE COUNTRY WHERE ASSESSEE WA S RESIDING IS DIRHAM AND NOT US DOLLARS. THE ASSESSEE WAS SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 8 8 MAINTAINING OVERSEAS BANK ACCOUNTS DENOMINATED IN U S DOLLARS AS WELL AS DIRHAMS. THE WITHDRAWALS FROM US DOLLARS ACCOUNT WERE MADE ONLY FOR REPATRIATION AND NOT FOR LOCAL SPENDING BECAUSE IF DOLLARS WERE WITHDRAW N FOR SPENDING THEY WOULD AGAIN REQUIRE CONVERSION TO LOC AL CURRENCY I.E. DIRHAM. THE LOCAL EXPENSES OF THE ASS ESSEE THUS WERE MADE ONLY FROM THE WITHDRAWALS OUT OF DIR HAM DENOMINATED ACCOUNT. THE ASSESSEE HAD MADE CASH WITHDRAWALS OF 5,61,000 DIRHAMS BETWEEN FEBRUARY 2008 TO APRIL 2009 FROM HI S BANK ACCOUNTS DENOMINATED IN DIRHAM WHICH WORKS TO ABOUT RS. 67,32,000 (ONE DIRHAM = RS. 12 APPX). THE SAID WITHDRAWALS WERE FAR IN EXCESS OF MONEY REQUIR ED FOR ASSESSEE'S LOCAL EXPENSES. THEREFORE, PRESUMING THAT ANOTHER 35% OF THE WITHDRAWALS MADE FROM US DOLLAR ACCOUNTS WERE ALSO SPENT FOR PERSONAL PURPOSES IS UNREASONABLE AND WITHOUT ANY BASIS. THE FOREIGN CURRENCY WAS BROUGHT IN TO INDIA IN EXCEPTIONAL CIRCUMSTANCES TO TAKE CARE OF SURGERY A ND SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 9 9 OTHER UNFORESEEN EXPENSES FOR A LONG STAY IN INDIA FOR RECUPERATION OF ASSESSEE'S SPASTIC SON'S MAJOR HIGH LEVEL GRADE VINII ORTHOPEDIC SURGERY. SOURCE OF FOREIGN CURRENCY WAS EXPLAINED IN THE COU RSE OF STATEMENT RECORDED U/S. 132(4) ITSELF THE SOURCE OF FOREIGN CURRENCY FOUND WITH THE ASSES SEE WAS DULY EXPLAINED BY HIM IN THE STATEMENT RECORDED UNDER SECTION 132(4) AT THE TIME OF SEARCH ITSELF. THE ASSESSEE DURING THE COURSE OF SEARCH AND SEIZUR E OPERATION IN RESPECT OF LOCKER NO. 15 WITH AXIS BAN K, MUMBAI ON 12/08/2009, WAS ASKED TO EXPLAIN THE SOUR CE OF FOREIGN CURRENCY AMOUNTING TO US DOLLARS (US $) 31,667 AND UAE DIRHAMS (AED) 3,355 FOUND IN THE SAID LOCKE R. THE RELEVANT EXTRACT OF THE STATEMENT OF ASSESSEE I S AS UNDER: 'Q-5: PI. EXPLAIN THE FOREIGN CURRENCY FOUND INSIDE THE LOCKER & GIVE THE SOURCE. {PAPER BOOK PAGE NO. 17} SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 10 10 ANSWER. THE FOREIGN CURRENCY FOUND BELONGS TO ME AND THE SOURCE IS WITHDRAWALS FROM MY PERSONAL ACCOUNTS IN SHARJAH AT VARIOUS OCCASIONS. ' THE ASSESSEE DURING THE COURSE OF SAME STATEMENT EXPLAINED A PART OF FOREIGN CURRENCY AS UNDER: 'Q-9: CAN YOU SPECIFY HOW MUCH FOREIGN CURRENCY YOU & YOUR FAMILY BROUGHT THIS TIME TO INDIA? ANSWER. USD 20,000/- APPROX. I BROUGHT TO INDIA WHEN I AND MY FAMILY CAME TO INDIA ON 4'H JULY 2009.' THE ASSESSEE DURING THE COURSE OF SAME STATEMENT EXPLAINED THE REST OF FOREIGN CURRENCY AS UNDER: 'Q-12: YOU STATED THAT 20,000 USD YOU BROUGHT IN INDIA ON 4TH JULY. PI. STATE WHEN YOU BROUGHT THE REMAINING USD & UAE DIR. ANSWER. I DO NOT REMEMBER WHEN THEY WERE BROUGHT SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 11 11 TO BE EXACT HOWEVER IN MAY 2009 I AND MY FAMILY HAD COME TO SHOW MY SON TO VARIOUS DOCTORS AND THEN IN MAY/JUNE, I HAD COME TWICE TO MEET THE VARIOUS DOCTORS AND FINALLY ON 4TH JULY WE CAME FOR THE SURGERY.' THUS THE ASSESSEE CONFIRMED THAT THE FOREIGN CURREN CY FOUND IN THIS LOCKER WAS BROUGHT IN TO INDIA SHORTL Y BEFORE THE DATE OF SEARCH. IN RESPECT OF FURTHER FOREIGN CURRENCY OF US $ 17,000 FOUND FROM LOCKER NO. 1638 WITH STATE BANK OF BIKAN ER & JAIPUR, PASCHIM VIHAR, DELHI, THE ASSESSEE WAS ASKE D TO EXPLAIN THE SOURCE OF SAID FOREIGN CURRENCY. THE RE LEVANT EXTRACT OF SAID STATEMENT IS AS UNDER: 'Q-2: AFTER OPERATION OF LOCKER, GOLD JEWELLERY WEIGHING 198.416 GMS VALUED AT 2,85,759/- AND FOREIGN CURRENCY OF 17000 U.S. DOLLARS WERE FOUND FROM THE AFORESAID LOCKER. PLEASE EXPLAIN THE SOURC ES AND POSSESSION OF JEWELLERY & FOREIGN CURRENCY. ALSO SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 12 12 FURNISH THE EVIDENCES OF ACQUISITION OF SUCH ASSETS . ANSWER. THE JEWELLERY PERTAINS TO MY WIFE AND CHILDREN AND MYSELF RECEIVED DURING THE TIME OF MY MARRIAGE AND OTHER SPECIAL OCCASIONS. THE FOREIGN CURRENCY BELONGS TO ME WHICH HAS BEEN FROM MY CASH WITHDRAWALS MADE FROM MY PERSONAL AND COMPANY ACCOUNTS IN SHARJAH IN THE LAST 4 YEARS. THE COPIES OF BANK STATEMENTS WILL BE SUBMITTED IN THE DUE COURSE.' THUS THE ASSESSEE AGAIN CONFIRMED THAT THE FOREIGN CURRENCY WAS OUT OF HIS OVERSEAS BANKS AND WAS BROU GHT IN TO INDIA ON HIS TRAVELS. A PERUSAL OF BOTH STATEMENTS OF ASSESSEE RECORDED U /S. 132(4) DURING THE COURSE OF SEARCH CLEARLY SHOWS TH AT THE ASSESSEE HAD EXPLAINED THE SOURCE OF SAID FOREIGN CURRENCY AT THE TIME OF SEARCH. HE HAS FILED RELEVA NT EVIDENCES DURING ASSESSMENT PROCEEDINGS TO SUBSTANT IATE THE SAID EXPLANATION. THIS GOES TO PROVE THE BONA-F IDES OF SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 13 13 ASSESSEE'S CLAIM. ANOTHER PARTY CONFIRMED THAT FOREIGN CURRENCY FOUND WAS KEPT IN THE BANK LOCKER AFTER THE APPELLANT'S ARRIV AL IN TO INDIA. THE FACT THAT THE ASSESSEE KEPT A SUBSTANTIAL PORTI ON OF THE FOREIGN CURRENCY ON HIS LAST VISIT TO INDIA IS ALSO SUBSTANTIATED FROM THE STATEMENT OF MR. Y.D. BHALLA , FATHER-IN-LAW OF THE ASSESSEE RECORDED DURING THE C OURSE OF SEARCH PROCEEDINGS. THE RELEVANT EXTRACT OF SAID STATEMENT IS AS UNDER: 'Q.3 - YOUR BANK LOCKER NO. 15 WITH AXIS BANK HAS BEEN OPENED TODAY & FOUND JEWELLERY WORTH RS. 5,48,127/-, FOREIGN CURRENCIES (US DOLLAR 31667 & UAE DIR 3,355), CREDIT CARDS, DRIVING LICENSE ETC. AS PER ANN. CCF. PLEASE STATE TO WHOM ALL THESE THINGS BELONG & EXPLAIN THE SAME. ANSWER: JEWELLERY BELONGING TO MYSELF, MY WIFE, MY DAUGHTER & DAUGHTER IN LAW & THEIR FAMILY, AS WELL SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 14 14 AS PASSPORTS AND 02 LOCKER KEYS (GODREJ 68 & STEELAGE 59) AND ITEMS MENTIONED IN ANN. CCF ONLY MY SON IN LAW OR DAUGHTER CAN EXPLAIN BECAUSE THEY CAME TO INDIA ON 4TH JULY AFTER THAT THEY KEPT ALL OF THEIR ABOVE MENTIONED BELONGINGS IN MY LOCKER FOR SAFETY PURPOSE.' THUS MR. Y. D. BHALLA CATEGORICALLY CONFIRMED THAT THE FOREIGN CURRENCY BELONGED TO HIS SON IN LAW (ASSESS EE) AND HIS FAMILY AND THE SAME WERE KEPT IN BANK LOCKE R AFTER 4TH JULY 2009 ON THEIR ARRIVAL IN TO INDIA. IN VIEW OF THIS SWORN STATEMENT RECORDED AT THE TIME OF SEARCH U/S. 132(4) IT CANNOT BE HELD THAT THE SAID FOREIGN CURR ENCY REPRESENTED ANY UNEXPLAINED INCOME OF THE ASSESSEE. MOST RESPECTFULLY, THE STATEMENT GIVEN AT THE TIME OF SEARCH IS MOST CREDIBLE EVIDENCE. THE EVIDENTIARY V ALUE OF THE SAME IS HIGH AND THE SAME CANNOT BE DISREGARDED WITHOUT THERE BEING ANYTHING TO THE CONTRARY. THE BANK LOCKER WITH AXIS BANK CONTAINING THE FOREI GN SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 15 15 CURRENCY ALSO HAD PASSPORTS, DRIVING LICENSES AND O THER PERSONAL DOCUMENTS OF APPELLANT AND HIS FAMILY. FURTHER THE FACT THAT THE FOREIGN CURRENCY WAS FOUN D IN THE BANK LOCKER TOGETHER WITH PASSPORTS OF ASSESSEE AND HIS FAMILY, THEIR CREDIT CARDS, DRIVING LICENSE ETC. CO NFIRMS THAT THE CURRENCY AND PASSPORTS ETC. WERE KEPT IN THE LO CKER AFTER THE ARRIVAL OF ASSESSEE AND HIS FAMILY IN TO INDIA. IN SUCH CASE IT WILL BE HIGHLY UNREASONABLE TO PRESUME THAT THE FOREIGN CURRENCY FOUND IN LOCKER REPRESENTS ANY UNDISCLOSED INCOME OF THE ASSESSEE. ONUS CAST UNDER SEC. 69A DULY DISCHARGED. IN TERMS OF PROVISIONS OF SEC. 69A, THE ASSESSEE WA S REQUIRED TO EXPLAIN THE NATURE AND SOURCE OF ACQUIS ITION OF FOREIGN CURRENCY FOUND WITH HIM. IN THIS CONNECTION THE ASSESSEE: (A) FURNISHED COPY OF LEGAL REGULATIONS TO SHOW THA T HE AND HIS FAMILY MEMBERS WERE PERMITTED BY LAW TO BRING SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 16 16 FOREIGN CURRENCY IN INDIA ON THEIR TRAVELS TO INDIA . SINCE FOREIGN CURRENCY BROUGHT INTO INDIA BY ASSESSEE AND HIS FAMILY MEMBERS WAS LESS THAN THE PRESCRIBED LIMITS, THEREFORE, NO CUSTOM DECLARATION FORM WAS REQUIRED TO BE SUBMITTED . (B) FURNISHED DETAILS OF TRAVELS UNDERTAKEN BY HIM AND HIS FAMILY MEMBERS TO SHOW THAT THEY HAD TAKEN VARIOUS TRAVELS TO INDIA ON WHICH SAID FOREIGN CURRENCY WAS BROUGHT IN. (C) EXPLAINED THAT THE SAID CURRENCY WAS BROUGHT IN TO TAKE CARE OF EXPENSES IN RELATION TO A MAJOR HIGH LEVEL GRADE VINII ORTHOPEDIC SURGERY OF HIS SON AND HIS FATHER' S CANCER OPERATION; (D) FILED COPIES OF STATEMENTS OF HIS OVERSEAS BANK ACCOUNTS EVIDENCING WITHDRAWALS OF CASH TO PROVE TH E SOURCE OF SAID FOREIGN CURRENCY. THUS, THE ASSESSEE ADEQUATELY EXPLAINED THE ASSET A ND ITS SOURCE OF ACQUISITION AND ALSO SUBSTANTIATED SA ID SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 17 17 EXPLANATION BY FURNISHING SUFFICIENT DOCUMENTARY EVIDENCES AND DISCHARGED THE ONUS CAST ON HIM UNDER THE LAW. THEREFORE, NO ADDITION COULD HAVE BEEN MADE ON THIS ACCOUNT IN VIEW OF THE EXPLANATION GIVEN AND EVIDEN CE FURNISHED BY THE ASSESSEE. NO EVIDENCE TO EVEN SUGGEST THAT FOREIGN CURRENCY FOUND REPRESENTS ANY INCOME. A NON-RESIDENT IS LIABLE TO TAX ONLY IN RESPECT OF INCOMES EARNED IN INDIA OR RECEIVED IN INDIA OR DEEMED TO B E EARNED OR RECEIVED IN INDIA. THERE IS NO EVIDENCE ON RECORD TO PROVE THAT THE FO REIGN CURRENCY IN QUESTION WAS EARNED BY THE ASSESSEE IN INDIA OR REPRESENTED INCOME RECEIVED BY ASSESSEE IN INDIA . IN FACT, THE ASSESSEE COULD NOT HAVE EARNED THE FOREIG N EXCHANGE IN INDIA. THERE IS NO EVIDENCE OF ANY NATURE, DIRECT OR INDIR ECT, IN SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 18 18 THE SEIZED MATERIAL TO PROVE, INDICATE OR EVEN SUGG EST ANY ELEMENT OF UNDISCLOSED INCOME OR INVESTMENT IN ANY FOREIGN CURRENCY. THEORY THAT FOREIGN CURRENCY REPRESENTS ANY INCOME IS AGAINST ALL PROBABILITIES. MOST RESPECTFULLY, IT DOES NOT MAKE ANY SENSE FOR A NON- RESIDENT TO EARN INCOME IN INDIA, CONVERT THE SAME TO FOREIGN CURRENCY AND LEAVE THE SAME IN INDIA ITSELF . THUS THE CONCLUSION DRAWN BY THE LEARNED ASSESSING OFFIC ER IS BASED MERELY ON SURMISES AND PRESUMPTIONS AND IS AGAINST ALL PROBABILITIES. IT IS PRAYED THAT KEEPING IN MIND THE FACTS OF THE CASE AND OUR SUBMISSIONS, THE APPEAL OF THE ASSESSEE MAY PLE ASE BE ALLOWED. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. IT IS NOT IN DISPUTE THAT THE ASSESSEE DI D NOT COME TO INDIA ON 4.7.2009. IT IS ALSO NOT IN DISPUTE THAT T HE ASSESSEES SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 19 19 SON WAS UNDER MEDICAL SUPERVISION FOR HIS HEALTH IS SUE. THE LD. CIT(A) HAS HELD THAT THE ASSESSEE HAS WITHDRAWN CASH FROM BANK ACCOUNT MAINTAINED IN FOREIGN CURRENCY. THE LD . CIT(A) HAS VERIFIED AND HELD THAT THE ASSESSEE HAS WITHDRA WN TOTAL US $ TO THE TUNE OF 70,000 BETWEEN 1.4.1976 TO 2.4.197 9. HE HAS ALSO RECEIVED US 20,407.50 FROM EMPLOYER. THE ASS ESSEE MIGHT HAVE SPENT THE AMOUNT FOR HIS STAY IN UAE. TH EREFORE, OUT OF THE AMOUNT 35% OF TOTAL US $, THE ASSESSEE C AN EVEN POSSESS US$ 39000 AS ON THE DATE OF SEARCH AS EXPLA INED BY HIM FOR THE PURPOSE OF MEDICAL TREATMENT OF HIS SON . THE ASSESSEE IS IN POSSESSION OF US $ OF 48,667 AND ASS ESSEE WAS IN EXCESS DOLLAR. THE ASSESSEE DID NOT BRING ANY EV IDENCE TO SHOW THAT THE ASSESSEE HAS NOT SPENT 35% OF US $ FO R LIVELIHOOD. 6. WE HAVE CAREFULLY GONE THROUGH THE ASSESSMENT ORDER AND SUBMISSIONS OF THE ASSESSEE. IT WAS NOT IN DIS PUTE THAT THE ASSESSEE DID NOT COME TO INDIA ON 4.7.2009. IT WAS ALSO NOT DISPUTED THAT THE ASSESSEES SON WAS UNDER MEDICAL SUPERVISION FOR HIS HEALTH ISSUES. CONSIDERING THE FACT THAT THE SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 20 20 ASSESSEE HAD GIVEN CATEGORICAL STATEMENT ON OATH DU RING THE COURSE OF SEARCH OPERATION, IN OUR CONSIDERED VIEW, SIGNIFIES THAT THE ASSESSEES EXPLANATION WAS NOT AN AFTERTHO UGHT OR FAR- FETCHED. THE AO HAS NOT REBUTTED THE DETAILS OF TRA VEL TO INDIA FURNISHED BY THE ASSESSEE. WE HAVE ALSO PERUSED THE BANK STATEMENTS OF THE ASSESSEE MAINTAINED IN SHARJAH IN US DOLLAR AND UAE DIRHAM. WE FIND THAT THE ASSESSEE WITHDREW CASH FROM BOTH THE SAID BANKS ACCOUNTS, WHICH WERE MAIN TAINED IN FOREIGN CURRENCY. FROM THE DETAILS OF CASH WITHDRAW ALS FROM OVERSEAS BANK ACCOUNTS, THE ASSESSEE HAS MADE AN EN DEAVOR TO EXPLAIN THAT THE ASSESSEE HAD WITHDRAWN US DOLLA R TO THE TUNE OF US DOLLAR 70,000/- BETWEEN 14.6.2007 TO 27. 01.2009 AND HE HAD ALSO RECEIVED US DOLLAR FROM THE EMPLOYE R AGGREGATING TO US DOLLAR 20,407.50 BETWEEN 30.6.200 2 TO 30.6.2006. WE ARE OF THE CONSIDERED OPINION THAT IT IS AGAINST THE HUMAN PROBABILITIES TO EXPECT THE ASSESSEE TO S AVE ALL HIS CASH WITHDRAWALS FROM BANK OR THAT RECEIVED FROM TH E EMPLOYER. IN OTHER WORDS, IT IS HYPOTHETICAL TO ACC EPT THAT THE ASSESSEE DID NOT SPEND EVEN A SINGLE US $ SINCE 200 2 AND HAD SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 21 21 SAVED THE ENTIRE MONEY AND BROUGHT THE SAME TO INDI A. HENCE, US $ 10,000/- WITHDRAWN BY THE ASSESSEE ON 14.06.20 07 AND AGGREGATE US DOLLAR 20,407.50 RECEIVED FROM THE EMP LOYER UPTO 2006 ARE NOT TAKEN COGNIZANCE OF AND DEEMED TO HAVE BEEN SPENT BY THE ASSESSEE. OUT OF THE REMAINING US $ 60,000/- WITHDRAWN BY THE ASSESSEE FROM BANK SINCE 10.05.2008, EVEN IF TAKEN ON CONSERVATIVE SIDE, THE ASSESSEE WOULD HAVE SPENT US DOLLAR 21,000/- BEING 35% OF TH E TOTAL US DOLLARS WITHDRAWN FROM THE BANK AND, THUS, THE A SSESSEE CAN BE EXPECTED TO HAVE IN HIS POSSESSION US $ 39,0 00/- AS ON THE DATE OF SEARCH AS EXPLAINED BY HIM FOR THE PURP OSE OF MEDICAL TREATMENT OF HIS AILING SON. AS AGAINST US $ 39,000/-, THE ASSESSEE WAS FOUND TO HAVE IN HIS POSSESSION US $ 48,667/- (USD 31,667/- + USD 17,000). THUS, THE AS SESSEE WAS FOUND IN HIS POSSESSION US $ 9,667/- ( US $ 48, 667/- LESS 39,000) IN EXCESS OF WHAT HE CAN BE REASONABLY EXPE CTED TO HAVE. IT IS SEEN THAT THE ASSESSEE HIMSELF SURREND ERED INCOME ON ACCOUNT OF CASH FOUND IN HIS LOCKERS AS INCOME E ARNED FROM PROPERTY DEALINGS. THE AO HAS NOT BROUGHT ON RECORD ANY SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 22 22 EVIDENCE TO DISBELIEVE THE SUBMISSION OF THE ASSESS EE. HENCE, THE ADDITION MADE BY THE ASSESSING OFFICER IS RESTR ICTED TO USD 9,667/- AND, THUS, THE ADDITION OF US $ 39,000/- IS DELETED. 7. WE HAVE GONE THROUGH THE ORDER OF LD. CIT(A) AND W E ARE OF THE VIEW THAT THE LD. CIT(A) AFTER CONSIDERI NG ALL THE EVIDENCES ON RECORD AND ALSO CONSIDERING THE JUDGEM ENT, WAS OF THE VIEW THAT 35% OF THE CASH WITHDRAWAL MADE FR OM FOREIGN BANK ACCOUNT WAS SPENT BY THE ASSESSEE. THE ASSESSE E IS NOT MAINTAINING REGULAR BOOKS OF ACCOUNT. MOREOVER, THE ASSESSEE HAS BROUGHT US $ FROM FOREIGN CURRENCY. APART FROM THAT THE ASSESSEE HAD ALSO LOCAL CURRENCY OF DIRHAM, WHENEVE R ASSESSEE COMES FROM ABROAD. THE ASSESSEE HAS TO EXP LAIN THE SOURCE AND HOW MUCH MONEY HE BROUGHT IN INDIA. THER EFORE, THE LD. CIT(A) CONSIDERING ALL THESE DOCUMENTARY EV IDENCES WHICH WERE BROUGHT ON RECORD, DELETED THE ADDITION OF RS. 18,17,114/- AND CONFIRMED THE ADDITION OF RS. 4,31, 852/-. THE EXPLANATION OF THE ASSESSEE AND THE FINDING OF CIT( A) THAT HE HAS SPENT 35% OF WITHDRAWAL FOR HIS LIVELIHOOD IS W RONG. SHRI SUDHIR CHOPRA, DELHI VS. ACIT, BHOPAL I.T.A.N O. 513/IND/2013 A.Y. 2010-11 23 23 THEREFORE, WE UPHOLD HIS ACTION IN CONFIRMING THE A DDITION OF RS. 4,31,825/-. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMIS SED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 3 RD MARCH, 2016. SD/- (B.C.MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 3 RD MARCH, 2016. CPU*