HIMANI AGRAWAL, JAIPUR V. DCIT CIRCLE (INTL TAX) JAIPUR, JAIPUR

ITITA 18/JPR/2022

AI Insights

The case involves Himani Agrawal, a non-resident Indian, who appealed against the order of the Commissioner of Income Tax (Appeals), Delhi-42, which was based on the assessment order passed by the DCIT, Circle (Intl. Tax), Jaipur. The assessment included unexplained cash deposits amounting to Rs. 10,52,800 in her bank account, which the assessing officer deemed as income from undisclosed sources. The Tribunal found that the CIT(A) had not provided a proper opportunity for the assessee to present her case and that the assessee was not in a good condition to respond due to personal issues. The Tribunal noted the assessee's non-resident status and the income earned abroad, which was not taxable in India, and emphasized the need for a fair hearing.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 132178 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 13-12-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 12-12-2022
• Assessment Year: 2016-2017
• Appeal Filed On: 28-08-2022
• Other Referred Cases: Ashish Bhardwaj vs. Ito Ward-36(4), New Delhi, Pramod Kumar Sapra vs. ITAT, Delhi, ADIT vs. Nandan Singh Chauhan
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Income from undisclosed sources; Residential status; Salary income; Principle of natural justice
• Section: 147; 271(1)(c); 143(3); 250; 144C; 143(2); 69A

Judgement Text

vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oaJh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@IT(IT)A No. 18/JP/2022 fu/kZkj.k o"kZ@Assessment Year : 2016-17 Himani Agrawal N/A Bohra Chawl Subhash Market, Abu Road, Shrohi 307026. cuke Vs. DCIT , Circle (Intl Tax), Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AVGPA 9122 Q vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@Assessee by : Shri Yogesh Kumar Sharma (Adv.) jktLo dh vksj ls@Revenue by: Shri James Kurian (CIT) lquokbZ dh rkjh[k@Date of Hearing :13/12/2022 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 14/12/2022 vkns'k@ORDER PER: DR. S. SEETHALAKSHMI, J.M. This appeal is filed by the assessee aggrieved from the order of the Learned Commissioner of Income Tax (Appeals), Delhi-42[herein after referred as “CIT(A)”]for the assessment year 2016-17 dated 30.06.2022, which in turn arises from the order passed by the DCIT, Circle(Intl. Tax), Jaipur under Section 147 r.w.s. 143(3) of the Income Tax Act, 1961 (in short 'the Act') dated 30.09.2021. 2. The assessee has marched this appeal on the following grounds of appeal:- “1.That on the facts and in the circumstances of the case and in law the learned appellate authority erred in passing the Appellate order u/s 250 stating that No grounds of appeal; 2 IT(IT)A No. 18/JP/2022 Himani Agrawal statement of facts; and form 35 were found uploaded on the e filing portal, where on 28th of Feb, 2022, the appellant has already filed all the these things such as grounds of appeal; statement of facts; with form 35 with proper challan of fees of Rs. 1000/-. 2. That on the facts and in the circumstances of the case and in law the learned appellate authority erred in passing the Appellate order dt. 30.06.2022 whereas no proper opportunity was given. In the matter of hearing of appeal, the Lt. appellate authority given only 30 days only since 04th of May 2022 to 03rd June, 2022 by way three reminders fixing case on three various dates 11.05.2022, 17.05.2022, 03.06.2022. However, on another side the appeal was filed by appellant on 28th Feb, 2022 and action taken by the appellant authority on 04th May, 2022, there was a gap of 65 days. Than in this scenario, is it justified to close this case within 30 days with lesser hearing opportunity? Further, I respect to the Income tax Department and replied all the issues and queries from time to time but within 30 days, I was not in Good condition due some family dispute with my Ex-husband. 3. That on the facts and in the circumstances of the case and in law the learned appellate authority erred in passing the Appellate order dt. 30.06.2022 whereas on baseless ground that the Documents was not received. 4. That on the facts and in the circumstances of the case and in law the learned appellate authority erred in passing the Appellate order dr. 30.06.2022 and in accordance to the Assessment order points whereas the Ld. Appellant authority has not considered the Grounds and facts as mentioned in the Form 35. Further, the reply submitted by the Chartered accountant of appellant during the proceeding of assessment, which was not in according to my authority/power/consent. The appellant was not living in India. was in UAE. 5. That on the facts and in the circumstances of the case and in law the learned appellate authority erred in passing the Appellate order dt. 30.06.2022, whereas the appellant was living and working in UAE on a salary of Rs. 5,00,000 approx (AED 30000) per month in the firm M/S DUD REAL ESTATE at 305, Shobha Ivory-1, Business bay, Dubai, UAE. 3 IT(IT)A No. 18/JP/2022 Himani Agrawal Being Sales Manager since 04th of Jan, 2014 till 03/01/2016 and she was Non-Resident for the Financial year 2015-16. Hence for the Financial year 2015-16, the appellant earned approx Rs. 60,00,000 being salary in UAE and this amount was exempted from the income tax in India as Non-resident income (Received and earned outside India). 6. That on the facts and in the circumstances of the case and in law the learned appellate authority erred in passing the Appellate order dt. 30.06.2022, whereas the assessment was made on baseless ground because all the payment deposited in her bank account through out of accumulated funds which was earned and received in UAE (out of India) BEING Non Resident Indian in the considering year. 7. That on the facts and in the circumstances of the case and in law the learned appellate authority erred in passing the Appellate order dt. 30.06.2022, the learned assessing officer erred in made addition of Rs. 10,52,800/- whereas the appellant had deposited such amount from identify sources i.e salary from UAE, further such salary was exempted as NRI income Received and earned outside India). And also through accumulated savings. 8. That on the facts and in the circumstances of the case and in law the learned appellate authority erred in passing the Appellate order dt. 30.06.2022, where the learned assessing officer erred in made addition of Rs. 10,52,800/-whereas such cash deposited was made on various dates in the HDFC Bank account from out of the proceed of the above mentioned salary of Rs.60,00,000 approx. whenever the appellant came in India, she withdrawn the amount from the UAE Bank and some amount out of the total withdrawal, brought in India on various dates, And also through accumulated savings. Further the appellant was deposited a piece of amount which was laying and additional/excess in India on various dates whenever appellant came in India as well through relative. 9. That on the facts and in the circumstances of the case and in law the learned appellate authority erred in passing the Appellate order dt. 30.06.2022, where the learned assessing officer erred in made addition of Rs. 10,52,800/- whereas such amount 4 IT(IT)A No. 18/JP/2022 Himani Agrawal deposited by the appellant in own NRO account which opened by the appellant to save the money in India out of the proceed earned and received out of the India. 10. That on the facts and in the circumstances of the case and in law the learned appellate authority erred in passing the Appellate order dt. 30.06.2022, when the Ld. AO has made assessment order one sided because the Ld. AO was denied to accept and understand the actual transaction shown. 11. The facts and in the circumstances of the case and in law the assessment was made on baseless ground whereas we have submitted and verified the Books of accounts with all annexure to Ld. Consultants in India to represent my case but he did not produce the papers and reply properly to explain my case to the Ld. Assessing officer during the assessment proceeding. 12 That the Appellant prays that the addition/ disallowance of Rs. 10,82,800 made in respect of unexplained money u/s 69A OF THE Income Tax Act, be deleted. 13 That the appellant prays for leave to add, alter, and amend the NA aforesaid grounds of appeal at or before the time of hearing of appeal.” 3. The brief facts of the case are that the assessee filed return of income for Assessment Year 2016-17 on 29.03.2018 declaring total income of Rs. 30,010/- under the head income from other sources. The return of income was processed u/s 143(1) and the case was selected for limited scrutiny under CASS by issuing notice u/s 143(2) of the I.T. Act, 1961 dated 09.08.2018. During the assessment proceedings, the assessee had filed necessary information/documents and after considering the replies as well as documents furnished by the assessee the 5 IT(IT)A No. 18/JP/2022 Himani Agrawal assessment u/s 143(3) of the 1. T. Act, 1961 was completed on 17.08.2018 accepting the returned income of the assessee. In this case for the year under consideration, limited scrutiny assessment was completed as the reason for scrutiny selection was for the verification of foreign bank account. During enquiry proceedings, bank account statements were obtained from the HDFC Bank Ltd. On examination of all the debit and credit entries of A/c No. "23391930000464" maintained with the HDFC Bank Ltd., it has been gathered that during the year under consideration i.e. F. Y. 2015-16 relevant to A. Y. 2016-17, cash totalling of Rs. 10,52,800/- was deposited by the assessee on various dates. 4. The AO observed that the assessee to prove that the cash deposits made did not bear the character of income. In this case, the assessee had failed to prove this fact that the cash deposited during the F. Y. 2015-16 relevant to A. Y. 2016-17are from disclosed sources and therefore, I hold that the amount of cash deposits made in the bank accounts, represented income from undisclosed sources. The assessee has concealed her true income otherwise is taxable. The assessee has failed to give any cogent explanation about the nature and source of cash deposits, hence the value of cash deposits, appearing in the bank accounts as tabulated in the body of the order is deemed as unexplained money u/s 60A of the Income Tax Act, 1961 and added to the total income of the assessee. The Total Income assessed is taxed 6 IT(IT)A No. 18/JP/2022 Himani Agrawal u/s 115 BBE of the Act at the rate of 30%. Further, penalty proceedings u/s 271(1)(c) of the Act for concealment of income in respect of unexplained income is initiated. Subject to the above discussion, Total Income of the assessee is assessed as under: Returned income Rs. 30,010/- Add: Addition u/s 69A as discussed above Rs. 10,52,800/- Total Income Rs. 10,82,810/- Rounded off Rs. 10,82,800/- To be taxed u/s 115BBE @ 30% Assessed at income of Rs. 10,82,800, Charge tax and interest as per provisions of law and issue Demand Notice u/s 156 of the Act & Penalty notice u/s 271(1)(c) of the Act. Assessed at income of Rs. 10,82,800 Charge tax and interest as per provisions of law and issue Demand Notice u/s 156 of the Act & Penalty notice u/s 271(1)(c) of the Act. As per provision of section 144C of the Income-tax Act, 1961, a draft assessment order was communicated to the assessee through e-proceedings on ITBA portal on dated 12.08.2021. In the draft assessment order, the assessee was asked to intimate hisacceptance or objections to the orderwithin 30 days of receipt of draft order. Further, in the draft assessment order, the assessee was also communicated that he can file his objections to the draft order before the Dispute Resolution Panel (DRP) 7 IT(IT)A No. 18/JP/2022 Himani Agrawal within 30 days of receipt of draft order. However, the assessee has not approached DRP. 5. Being aggrieved by the order of the ld. AO the assessee preferred an appeal before the ld. CIT(A) and the findings of the ld. CIT(A) are reproduced as under:- “12. The grounds of appeal are not available on record and has never been submitted ` subsequently in response to various hearing notices. No submission has been filed assailing the assessment made. The AO has meticulously examined the explanation tendered by the appellant. The AO was justified in rejecting the same as the contentions were general and vague in nature without any specific details and not supported by any documentary evidence. The argument that the cash deposits were out of the collective figure of past savings and gifts, has rightly been rejected as there is no reason as to whythe entire savings, if any, were not deposited on a single day but were deposited on various dates. Further, the claim of tuition income was also not acceptable as such income was never shown in the past returns filed. Therefore, it is concluded that the AO's finding that the cash deposits were unexplained income to be added u/s 69A is justified and based on correct appreciation of relevant facts. I see no reason to interfere with the findings of the AO. The assessment is confirmed. 13. The appeal is dismissed.” 6. The ld. AR for assessee submitted a detailed statement of facts which are as under:- “Your Appellants submit the following Statement of Facts of Appeals in respect of our appeal- Statement of Facts 8 IT(IT)A No. 18/JP/2022 Himani Agrawal 1. That the appellant was living and working in UAE on salary of Rs. 6,00,000 (AED 30000) per month in the considering year and she was Non-Resident for the Financial year 2015-16. 2. That the appellant filed return of income for Assessment Year 2016-17 on 29.03.2018 declaring total income of Rs. 30,010/- under the head income from other sources. 3. That appellant case was selected for scrutiny under CASS and Assessment under section 143 (3) of Income Tax Act, 1961 was completed on 30/09/2021 with addition of Rs. 10,52,800/- as undisclosed sources and a Notice of demand of Rs. 5,40,40/- u/s 156 of the Income tax Act, 1961 was also issued. 4. That the assessment was made on baseless ground because all the payment deposited in her bank account through out of accumulated funds which was earned and received in UAE (out of India) BEING Non Resident Indian in the considering year. 5. That in the against of the Assessment order u/s 143(3), an appeal before the Ld. Commissioner of Income Tax, Appeal CIT (A), Delhi-42, Income Tax Department, Delhi was filed on 28th of Feb, 2022against the order under section 147 of the Income-tax Act, 1961 passed by DLC-C-(123) (1) on 30/09/2021 for the Assessment Year 2016-17. Further on 30.06.2022 the appeal order was passed by the Ld. Ld. Commissioner of Income Tax, Appeal CIT (A), Delhi-42, Income Tax Department, Delhi without providing proper opportunity and on baseless ground that the Documents was not received. Grounds of Appeal 1. That on the facts and in the circumstances of the case and in law the learned appellate authority erred in passing the Appellate order u/s 250 stating that No grounds of appeal; statement of facts; and form 35 were found uploaded on the e filing portal, where on 28th of Feb, 2022, the appellant has already filed all the these things such as grounds of appeal; statement of facts; with form 35 with proper challan of fees of Rs. 1000/-.A copy of all of these documents are attached herewith as Annexure-1. 2. That on the facts and in the circumstances of the case and in law the learned appellate authority erred in passing the Appellate order dt. 30.06.2022 whereas no proper opportunity was given. In the matter of hearing of appeal, the Lt. appellate authority given only 30 days only since 04 of May 2022 to 03 June, 2022 by way three reminders fixing case on three various dates 9 IT(IT)A No. 18/JP/2022 Himani Agrawal 11.05.2022, 17.05.2022, 03.06.2022. However, on another side the appeal was filed by appellant on 28th Feb, 2022 and action taken by the appellant authority on 04th May, 2022, there was a gap of 65 days. Than in this scenario, is it justified to close this case within 30 days with lesser hearing opportunity? Further, I respect to the Income tax Department and replied all the issues and queries from time to time but within 30 days, I was not in Good condition due some family dispute with my Ex-husband. 3. That on the facts and in the circumstances of the case and in law the learned appellate authority erred in passing the Appellate order dt. 30.06.2022 whereas on baseless ground that the Documents was not received. 4. That on the facts and in the circumstances of the case and in law the learned appellate authority erred in passing the Appellate order dt. 30.06.2022 and in accordance to the Assessment order points whereas the Ld. Appellant authority has not considered the Grounds and facts as mentioned in the Form 35. Further, the reply submitted by the Chartered accountant of appellant during the proceeding of assessment, which was not in according to my authority/power/consent The appellant was not living in India, was in UAE. 5. That on the facts and in the circumstances of the case and in law the learned appellate authority erred in passing the Appellate order dt. 30.06.2022, whereas the appellant was living and working in UAE on a salary of Rs. 5,00,000 approx (AED 30000) per month in the firm M/S DUD REAL ESTATE at 305, Shobha Ivory-1, Business bay, Dubai, UAE. Being Sales Manager since 04th of Jan. 2014 till 03/01/2016 and she was Non-Resident for theFinancial year 2015-16. Hence for the Financial year 2015-16, the appellant earned approx Rs. 60,00,000 being salary in UAE and this amount was exempted from the income tax in India as Non-resident income (Received and earned outside India), copy of salary certificate is attached hereby as annexure-2. 6. That on the facts and in the circumstances of the case and in law the learned appellate authority erred in passing the Appellate order dt. 30.06.2022, whereas the assessment was made on baseless ground because all the payment deposited in her bank account through out of accumulated funds which was earned and received in UAE (out of India) BEING Non 10 IT(IT)A No. 18/JP/2022 Himani Agrawal Resident Indian in the considering year, copy of UAE bank statement is attached hereby as annexure-3. 7. That on the facts and in the circumstances of the case and in law the learned appellate authority erred in passing the Appellate order dt.30.06.2022, the learned assessing officer erred in made addition of Rs. 10,52,800/- whereas the appellant had deposited such amount from identify sources i.e salary from UAE, further such salary was exempted as NRI income Received and earned outside India). And also through accumulated savings. Tax liability foreign income of a person not ordinarily resident In the case of a person resident but not ordinarily resident, income accruing or arising to him outside India in any financial year is not liable to income-tax in India only if : (i) it is not derived from a business controlled in or a profession set up in India; (ii) it is not received or deemed to be received in India in such year by him or on his behalf; and (iii) it is not deemed to accrue or arise to him in India during such year. Thus, the income-tax exemption on foreign income is confined to cases where income not only accrues or arises abroad but is also received abroad and is neither deemed to accrue or arise nor deemed to be received in India under the provisions of the Income tax Act. But the income-tax exemption would not be lost merely because the foreign subsequently brought into India. income received abroad is 8. That on the facts and in the circumstances of the case and in law the learned appellate authority erred in passing the Appellate order dt.30.06.2022, whereas the learned assessing officer erred in made addition of Rs.10,52,800/-whereas such cash deposited was made on various dates in the HDFC Bank account from out of the proceed of the above mentioned salary of Rs.60,00,000approx. whenever the appellant came in India, she withdrawn the amount from the UAE Bank and some amount out of the total withdrawal, brought in India on various dates, And also through accumulated savings. Further the appellant was deposited a piece of amount which was laying and additional/excess in India on various dates whenever appellant came in India as well through relative. 9. That on the facts and in the circumstances of the case and in law the learned appellate authority erred in passing the Appellate order dt. 30.06.2022, where the learned assessing 11 IT(IT)A No. 18/JP/2022 Himani Agrawal officer erred in made addition of Rs. 10,52,800/- whereas such amount deposited by the appellant in own NRO account which opened by the appellant to save the money in India out of the proceed earned and received out of the India. 10.That on the facts and in the circumstances of the case and in law the learned appellate authority erred in passing the Appellate order dt.30.06.2022, when the Ld. AO has made assessment order one sided because the Ld. AO was denied to accept and understand the actual transaction shown. 11.The facts and in the circumstances of the case and in law the assessment was made on baseless ground whereas we have submitted and verified the Books of accounts with all annexure to Ld. Consultants in India to represent my case but he did not produce the papers and reply properly to explain my case to the Ld. Assessing officer during the assessment proceeding. Tribunal Decisions in support of non resident salary income outside India as follows- • AshishBhardwaj. Ghaziabad vs Ito Ward-36(4). New Delhi on 14June, 2021 I find the Delhi Bench of the Tribunal in the case of Pramod Kumar Sapra (supra) has held that where the stay of the assessee, an employee of RIL, and deputed to Iraq outside India was for more than threshold 182 days, salary income of assessee for the previous year could not be held to be taxable because he was not resident of India. .ITAT, Delhi has also decided in the case of ADIT vs. Nandan Singh Chauhan reported in 2011-TII-27-ITAT-DEL-NRI as under:- "We have carefully considered the submissions and perused the record We find is undisputed that the assessee is NRI and he has received income from foreign company for the services rendered outside India. Just merely because he has instructed the salary to be transferred to his FCNR a/c maintained with HSBC bank, Barakhamba Road, Connaught Place, New Delhi cannot bring the amount to taxation under Indian Income Tax Act. This view is clearly supported by the tribunal's decision as above. Hence, respectfully following the precedent as above, we uphold the order of Ld. CIT(A) and decide the issue in favour of the assessee and against the revenue." Considering the totality of the facts and circumstances and also ITAT decisions, we uphold the order of the CIT (A) and dismiss the revenue's appeal." 12 IT(IT)A No. 18/JP/2022 Himani Agrawal 7. On the other hand, the ld. DR relied upon the order of the ld. CIT(A) and simultaneously objected to the prayer of the ld. of the assessee. 8. We have heard both the parties and perused the materials available on record. In this case it is noticed that the ld. CIT(A) had fixed the hearing of appeal on 11.05.2022 & 26.05.2022 by sending notice to the assessee which was not complied with. However, in the interest of natural justice another hearing was fixed on 03.06.2022 by serving notice dated 27.05.2022 but nobody attended from the side of the assessee nor adjournment was sought and also no grounds of appeal, statement of facts or written submissions were filed before the ld. CIT(A). It is further noted that the ld. CIT(A) clearly mentioned in the notice that it is the final opportunity otherwise it will be presumed that the assessee does not want to say anything in the matter. From the above scenario, it appears that the Ld. CIT(A) had given ample opportunity to the assessee. However, we find from the written submission of the assessee that she was not in a good condition and she had dispute with her ex-husband, therefore, she could not ponder on the direction of the ld. CIT(A). Hence, we feel that when she is not in a good state of mind then she could not be in a position to take part in other work. Thus, the Bench feels that in the interest of equity and justice the assessee should be given one more chance to 13 IT(IT)A No. 18/JP/2022 Himani Agrawal contest her case before the ld. CIT(A) for which the assessee is directed to substantiate her case before the ld. CIT(A) by submitting necessary evidence/ written submission etc. but the assessee will cooperate in the appellate proceedings and also will not demand further adjournment on frivolous grounds. In this situation, we restore the appeal of the assessee to the file of the ld. CIT(A) for afresh hearing but by providing adequate opportunity of hearing to the assessee. Thus the appeal of the assessee is allowed for statistical purpose as per the directions mentioned hereinabove. In the result, the appeal of the assessee is allowed for statistical purpose. Order pronounced in the open court on 14/12/2022 Sd/- Sd/- ¼jkBksM deys'k t;UrHkkbZ ½ ¼MkWa-,l-lhrky{eh½ (RATHOD KAMLESH JAYANTBHAI) (Dr. S. Seethalakshmi) ys[kk lnL; @Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 14/12/2022 *Santosh vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Himani Agrawal, Sirohi. 2. izR;FkhZ@ The Respondent- DCIT, Circle (International Taxation), Jaipur. 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (IT(IT) A No. 18/JP/2022) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asstt. Registrar