ACIT, New Delhi V. Shri Sudhir Sareen, New Delhi

ITA 5216/DEL/2013

• Counselvise Citation: 521620114 RSA 2013
• Duration Of Justice: 1 year(s) 11 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 27-08-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 17-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Residential status

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. KULDIP SINGH, JM ITA NO. 5216/DEL/2013 : ASSTT. YEAR : 2010-11 ACIT CENTRAL CIRCLE-7, ROOM NO. 363, E-2, ARA CENTRE, JHANDEWALAN EXTENSION NEW DELHI VS SUDHIR SAREEN B-101, GREATER KAILASH-I NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AAAPS5842A APPELLANT BY : SH. S UJIT KUMAR, SR. DR RESPONDENT BY : SH. U.N.MAR WAH, C.A. DATE OF HEARING : 27.08.2015 DATE OF PRONOUNCEM ENT : 27. 08.2015 ORDER PER N. K. SAINI, AM: THIS IS AN APPEAL BY THE DEPARTMENT AGAINST THE ORD ER DATED 22.07.2013 OF LD. CIT(A)-I, NEW DELHI. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPE AL :- 1. THE ORDER OF LD. CIT(A) IS NOT CORRECT IN LAW A ND FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) HAS ERRED IN HOLDING THE RESIDENTIAL STATUS OF THE ASSESSEE AS NON-RESIDENT AGAINST THE RESIDENTIAL STATUS DETERMINED BY THE A.O. AS RESIDENT. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 72,48,000/- MADE BY THE AO ON ACCOUNT OF AMOUNT TRANSFERRED FROM ABROAD. ITA NO. 5216/DEL/2013 2 4. THE APPELLANT CRAVES LEAVE TO ADD, AMEND ANY/ALL THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF HEARING TO THE APPEAL. 3. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THIS CASE I S COVERED IN ASSESSEES FAVOUR VIDE ORDER DATED 15.9.2014 IN ITA NOS. 3120-26/DEL/2011 AND CO NOS. 207-210/DEL/2013 FOR T HE ASSESSMENT YEAR 2002-03 TO 2008-09 IN ASSESSEES OW N CASE WHEREIN THE DEPARTMENTAL APPEALS ON THE SAME ISSUE WERE DISMISSED AND WHEN THE DEPARTMENT PREFERRED APPEAL BEFORE THE HONBLE JURISDICTIONAL HIGH COURT IN ITA NO. 28 0-284 AND 289/ 2015 THE ORDER OF THE TRIBUNAL DATED 15.9. 2014 WAS AFFIRMED BY FOLLOWING THE EARLIER JUDGMENT IN THE C ASE OF CIT VS. SURESH NANDA REPORTED IN 340 ITR 611 (DELHI ). THE AFORESAID CONTENTION OF THE LD. COUNSEL FO R THE ASSESSEE WAS NOT CONTROVERTED BY THE LD. DR. 4. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND MATERIAL ON RECORD IT IS NOTICED THAT THE MAIN CONTROVERSY IN THIS APPEAL REVOLVES AROUND THE STATUS OF THE AS SESSEE AND THE ADDITION ON ACCOUNT OF NRE INCOME. THE SIMILA R ISSUE HAVING IDENTICAL FACTS HAD ALREADY BEEN ADJUDICATED BY THE ITAT DELHI BENCH G, NEW DELHI IN ITA NOS. 3120- 26/DEL/2011 AND CROSS OBJECTION NOS. 207-10/DEL/201 3 FOR THE ASSESSMENT YEARS 2002-03 TO 2008-09 VIDE ORDER DATED ITA NO. 5216/DEL/2013 3 15.09.2014 IN ASSESSEES OWN CASE AND THE RELEVANT FINDINGS HAVE BEEN GIVEN IN PARA 33 AND 34 OF THE SAID ORDER WHICH READ AS UNDER :- 33. THE STATUS ON FACTS OF THE PRESENT CASE DETERMINED BY THE CIT(A) AS NRI HAS BEEN UPHELD AS DEPARTMENTA L APPEALS HAVE BEEN DISMISSED AS ADMITTEDLY NOTHING H AS BEEN FOUND IN THE SEARCH. THE STATUS CHANGE ACCORDI NGLY ON FACTS WAS NOT CORRECTLY MADE BY THE AO. THE SAID AC TION HAS NOT BEEN UPHELD THE ISSUE FRAMED IN SERIAL NUMBER ( 4) ACCORDINGLY IS DECIDED IN ASSESSEES FAVOUR. 34. SINCE THE ADDITIONS DELETED BY THE CIT(A) WHICH STOOD MADE ONLY ON ACCOUNT OF THE STATUS CHANGE MAD E IN THE ASSESSMENT ORDER DEHORS FACTS AND THE CROSS OBJ ECTIONS FILED ARE PARTLY SUPPORTIVE OF THE IMPUGNED ORDERS AND THE IMPUGNED RODERS IN EACH OF THE YEARS STANDS UPHELD IN TOTO THE CROSS OBJECTIONS FILED ARE PARTLY ALLOWED AND T HE ISSUE FRAMED IN SERIAL NUMBER (7) IS ANSWERED IN ASSESSEE S FAVOUR. 5. THE SAID ORDER WAS UPHELD BY THE HONBLE JURI SDICTIONAL HIGH COURT WHILE DECIDING THE APPEALS OF THE DEPART MENT IN ITA NO. 280-284 & 289/DEL/2015 VIDE ORDER DATED 6 TH JULY, 2015 (COPY OF WHICH IS PLACED ON THE RECORD) AND TH E RELEVANT FINDINGS ARE GIVEN IN PARA 4 TO 7 WHICH READ AS UND ER :- 4. THERE WERE TWO QUESTIONS THAT AROSE BEFORE TH E ASSESSING OFFICER. ONE WAS REGARDING THE ADDITION O N ACCOUNT OF NRE INCOMEAND THE SECOND WAS REGARDING ADDITION MADE ON ACCOUNT OF UNEXPLAINED CREDIT. B OTH WERE ANSWERED AGAINST THE REVENUE BY THE CIT(APPEAL S) AND THE ITAT FOR THE RELEVANT AYS. HOWEVER, THE ONL Y GROUND URGED BY THE REVENUE AS FAR AS THESE APPEALS ARE CONCERNED IS THE ADDITION ON ACCOUNT OF NRE INCOME . 5. ADMITTEDLY, THE FACTUAL FINDING OF THE CIT(APPE ALS) AS AFFIRMED BY THE ITAT IS THAT THE ASSESSEE RESIDED I N THE ITA NO. 5216/DEL/2013 4 COUNTRY FOR LESS THAN 182 DAYS IN EACH OF THE RELEV ANT PREVIOUS YEARS. 6. LEARNED COUNSEL ON BOTH SIDES AGREE THAT THE CA SE IS SQUARELY COVERED AGAINST THE REVENUE BY THE JUDGMEN T OF THIS COURT IN COMMISSIONER OF INCOME TAX VS. SURESH NANDA 352 ITR 611 (DEL.) 7. CONSEQUENTLY, THESE APPEALS ARE DISMISSED IN T ERMS OF THE AFOREMENTIONED DECISION. 6. WE, THEREFORE, BY RESPECTFULLY FOLLOWING THE AFORESAID REFERRED TO ORDERS, DO NOT SEE ANY MERIT IN THIS AP PEAL OF THE DEPARTMENT. 7. IN THE RESULT APPEAL IS DISMISSED. (ORDER PRONOUNCED IN THE COURT ON 27/08/2015) SD/- SD/- (KULDIP SINGH ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMB ER DATED: 27/08/2015 *BINITA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR DATE INITIAL ITA NO. 5216/DEL/2013 5 1. DRAFT DICTATED ON 27/08/2015 2. DRAFT PLACED BEFORE AUTHOR 27/08/2015 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. 5. APPROVED DRAFT COMES TO THE SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.