IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCH “C”, MUMBAI

Before Shri Pawan Singh (JUDICIAL MEMBER)
AND
Shri G Manjunatha (ACCOUNTANT MEMBER)

I.T.A No.4679/Mum/2016
(Assessment year: 2006-07) & I.T.A No.4680/Mum/2016 (Assessment year: 2007-08)

DCIT (IT)-3(3)(2), Mumbai……….APPELLANT

vs

Shri Hemant Mansukhlal Pandya
B 201/202, Dheeraj Kunj
Bajaj Road, Vile Parle (W)Mumbai 400 056
PAN : AGPPP6132P……….RESPONDEDNT

C.O.58/Mum/2018
(Arising out of I.T.A No.4679/Mum/2016)
(Assessment year: 2006-07) amp; C.O.59/Mum/2018 (Arising out of I.T.A No.4680/Mum/2016)(Assessment year: 2007-08)

Shri Hemant Mansukhlal Pandya
B 201/202, Dheeraj Kunj
Bajaj Road, Vile Parle (W)Mumbai 400 056

vs

DCIT (IT)-3(3)(2), Mumbai CROSS OBJECTOR …RESPONDEDNT

Assessee by Dr K Shivram / Shri Rahul Sarda
Respondent by Shri HM Singh / Shri Abi Rama Kartikeyan

Hemant Mansukhalal Pandya

Date of conference 18-10-2018
Date of attestation 16-11-2018

ORDER
Per G Manjunatha, AM :

These dual appeals filed by a income and cranky objections filed by a assessee are destined opposite separate, nonetheless relating orders of CIT(A)-56, Mumbai antiquated 21-03-2016 for a comment years 2006-07 & 2007-08. Since grant are relating and issues are common, for a consequence of convenience, these appeals were listened together and are expected of by this common order.

2. The revenue, some-more or reduction taken adult common drift of seductiveness for both a comment years. For a consequence of brevity, drift of seductiveness taken for AY 2006-07 are extracted below:-

“1. “Whether CIT(Appeal) was scold in holding a row of a Assessee that it is fabricated/manufactured information with some malafide intention, and has abandoned a fact that a assessee did not give any evidence/proof in this regard.
2. Ld. CIT(A) erred in ignoring a fact that a Assessee did not pointer determine waiver form for carrying out any serve enquiry from Swiss HSBC Branch that could have supposing all germane information. CIT(A) has abandoned this critical emanate in his sequence and staid that AO should have stream arguable and authentic evidence, given a assessee himself thwarted such attempt. More so when assessee has not denied before any management that such comment does not go to him.”

3. The brief grant of a box are that a assessee is a non proprietor given financial year 1995-96. The assessee is a executive in a association in Japan and critical in Japan on business visa given 1990. The assessee has got permanent residency certificate from Japan in 2001. The assessee has filed his lapse of Hemant Mansukhalal Pandya income for AY 2006-07 on 29-03-2007 dogmatic sum income of Rs.5,51,667. The lapse of income was processed u/s 143(1) of a Income-tax Act, 1961 on 12-06-2007.

4. The comment has been reopened u/s 147 of a Income-tax Act, 1961 for a reasons accessible as per that information was perceived by Government of India from a French Government underneath DTAA in practice of a emperor powers that some Indian nationals and residents have unfamiliar bank accounts in HSBC Private Bank (Swisse SA, Geneva) that were undisclosed to a Indian Income-tax department. This information was perceived in a form of a ask (hereinafter referred to as ‘base note’) wherein sum of comment holders such as name, date of birth, place of birth, sex, residential address, profession, nationality alongwith date of opening of a conspicuous bank comment and also change in certain years, etc. are mentioned. The information perceived from a French supervision has been processed with that of a assessee’s Indian income-tax lapse and found that a sum contained in bottom note is relating with a information supposing by a assessee in his income-tax return. Accordingly, a DDIT(Inv), Unit VII(4), Mumbai has sent information to a endangered AO for serve action. The AO released notice u/s 148 of a Act on 20-11-2014 with a following reasons accessible for reopening of a assessment:-

Hemant Mansukhalal Pandya

“The box of HEMANT MANSUKHLAL PANDYA was centralized with a undersigned vide sequence No. DIT(IT)-lI/Juris.l27(2)/2014-15, antiquated 12.11.2014. Information has been perceived in honour of him from a bureau of DDJT(Inv.)Unit-VII(4), Mumbai. Tlie information pertains to his carrying a bank comment with HSBC Bank, Geneva temperament a series BUP_$IFIC_PER_ID – 5090145003. From a conspicuous bank statement, it is seen that he is carrying a rise change of USD 6237932.15 in a conspicuous comment during a duration 2005 to 2007. It is serve seen from tfa conspicuous bank comment that an volume of USD 444171 is reflected in his credit in Dec 2005. The annals of this bureau uncover that there is no lapse of income filed by him for a germane comment year and this income therefore has transient assessment. This justification has come into a possession of a undersigned; we have reason to trust that a income to a border of atleast USD 444171 has transient comment within a definition of para (d) to a Explanation 2 subsequent territory 147of’the Act”

5. In response to notice, a assessee, by his A.R. Shri V.A.Parikh, CA, has filed his conflict for reopening of a assessment, vide his minute antiquated 25-11-2014. The conflict filed by a assessee has been duly expected of by a AO vide his sequence antiquated 28-11-2014. Thereafter, a assessee has filed a minute and staid that a lapse filed u/s 139(1) shall be treated as a lapse of income filed in response to notice u/s 148 of a Income-tax Act, 1961. The box has been taken adult for inspection and accordingly, a notice u/s 142(1) of a Act antiquated 28-11-2014 was released job for several sum including sum of bank accounts confirmed in HSBC, Geneva in strange CD and other details. In response to notice, a assessee, vide his acquiescence antiquated 19-12-2014 staid that he is a non proprietor for some-more than 25 years and being a non resident, he is not underneath requirement to announce his unfamiliar resources and unfamiliar income to a Indian Income-tax Authorities; hence, a doubt of submitting a CD of a HSBC Bank comment or a determine waiver form does not arise. Further, a Hemant Mansukhalal Pandya AO, released notices u/s 143(2) and 142(1) of a Act on 22-02-2014 and asked a assessee to record compulsory sum in support of HSBC Bank comment confirmed in Geneva and also uncover means as to because comment shall not be framed u/s 144 of a Income-tax Act, 1961 formed on element accessible on record.

6. In response to a notices, a assessee, vide his submissions antiquated 31- 12-2014 and 05-01-2015, filed an confirmation antiquated 29-12-2014 and staid that his unfamiliar bank accounts and unfamiliar resources have no tie with India or any Indian business. No amounts from India have been eliminated to any of his unfamiliar accounts directly or indirectly. Further, a assessee challenged a flawlessness and exactness of a bottom note and contended that no serve can be done merely on assumptions or presumptions. The assessee serve submitted that he is a non proprietor Indian given 1990, i.e. for some-more than 15 years. He went to Japan on business visa in 1990 and worked there compartment 2001 and after 2001, he turn permanent proprietor of Japan, therefore, a bank comment confirmed in HSBC, Geneva is carrying no tie with India and accordingly doubt of furnishing sum of bank accounts and unfamiliar resources does not arise. He serve staid that he has filed his income-tax lapse frequently in India in a standing of Non proprietor dogmatic whatever income accrued or deemed to accumulate in India and such earnings have been supposed by Hemant Mansukhalal Pandya a department. In a deficiency of any supplies to announce unfamiliar bank accounts and resources by non residents to Indian Income-tax department, a doubt of disclosing those accounts to Indian Income-tax dialect does not arise and consequently, a volume fibbing in HSBC Geneva comment can't be taxed in India.

7. The AO, after deliberation a submissions of a assessee reason that when a information perceived from dual emperor countries shows that a assessee is carrying bank accounts in HSBC, Geneva, it is for a assessee to infer that a conspicuous bank comment had no tie with Indian income or a conspicuous deposits are not sourced out of income perceived or accrued in India. As a assessee has selected not to allow a sum of his HSBC bank comment and a source of deposits thereto, even nonetheless he could have performed all a sum / evidences for a same, a usually deduction that could be drawn is that a assessee has motionless to secrete a information as it would have left opposite him. Thus, as per a supplies of territory 114 of a Indian Evidence Act also it needs to be reason that during this theatre that a information / sum not furnished were unlucky to a assessee and that a source of income deposited in HSBC comment is undisclosed and sourced from India. The AO serve celebrated that a assessee instead of furnishing germane sum to explain a source of deposits found in HSBC Bank, Geneva, questioned a Hemant Mansukhalal Pandya genuineness and a flawlessness of a bottom note, nonetheless fact stays that a genuineness and a flawlessness of a bottom note has already been explained and a same has been supposing to a assessee. Despite several opportunities given, a assessee chose not to offer any reason to a source of deposits done in those accounts on a row that as a non resident, he has underneath no requirement to yield such explanation. Although, a assessee claims to have no business tie in India, he had properties in India and also a demat comment in that a portfolio gratefulness as on 16-02- 2015 is Rs.1,04,82,026 from 55 shares. During comment proceedings, a assessee has constructed permanent residency label of Japan that is stream from 27-11-2001. When he was asked to allow reason to uncover that he was accessible to have business / row or work assent in Japan or any other nation in that was earning his income before to 2001, a assessee chose not to yield any details. Therefore, a usually end that can be drawn is that before to this date, a assessee can't be intent in any business, row of practice in Japan. Therefore, he opined that credits found in HSBC Bank, Geneva is undisclosed to Indian Income-tax dialect and accordingly done serve of Rs.4,28,95,304 to a returned income. The germane observations of a AO are extracted below:-

11. The submissions of a assessee are considered. In this case, a source of income deposited in a HSBC, Geneva Account has not been explained, afterwards in deficiency of anything discordant shown by assessee a usually judicious end that can be unspoken is Hemant Mansukhalal Pandya that that a amounts deposited are unaccounted deposits sourced from India and therefore taxable in India. This hypothesis is as per a supplies of Section 114 of The Indian Evidence Act, 1872 that reads as follows:

“Section 114. Court might assume existence of certain facts- The Court might assume a existence of any fact that it thinks expected to have happened, courtesy being had to a common march of healthy events, tellurian control and open and private business, in their propinquity to a grant of a sold case. The Court might assume –

…. (g) That justification that could be and is not constructed would, if constructed be inauspicious to a chairman who withholds it..,…”

Section 114(g) of The Indian Evidence Act, 1872, so clearly says that a Courts can assume existence of certain grant if a chairman probable to allow justification that could be and is not produced, that if constructed would have been inauspicious to a chairman who withholds it.

11.1 As a assessee has selected not to allow a sum of his HSBC bank accounts and a source of deposits thereof, even nonetheless he could have been performed all a details/evidences for a same, a usually deduction that could be drawn is that a assessee has motionless to secrete a information as if producing it would have left opposite him. Thus, as per a supplies of Section 114 of The Indian Evidence Act, 1872 also, it needs to be reason during this theatre that a information/details not furnished were inauspicious to a assessee and that a source of a income deposited in a HSBC comment is undisclosed and sourced from India. In Nova Promoters and Finlease (P)Ltd. 342 ITR 169(Del), highlighting a authorised outcome of territory 68 of a Act, a Division Bench has celebrated in para 32 that “The judiciary also erred in law in holding Assessing Officer ought to have stream that a monies emanated from a coffers of a assessee association and came behind as share capital. Section 68 permits a Assessing Officer to supplement a credit appearing in a books of comment of a assessee if a latter offers no reason per a inlet and source of a creditor a reason offering is not satisfactory. It places no avocation on him to indicate to a source from that a income was perceived by a assessee. 11.2 The Hon’ble Supreme Court in a box of Sumati Dayal Vs. Commissioner of Income Tax (1995) 214 ITR 801 (SC) reason that income taxation record are polite record and a grade of reason compulsory is to be judged by majority of probabilities. The Hon’ble Supreme Court, in a box of CIT v Durga Prasad More [1971] 82 ITR 540 (SC), has reason that

“the fatiguing authorities were not compulsory to put on blinkers while looking during a papers constructed before them they were entitled to demeanour into a surrounding resources to find out a existence of a recitals done in those documents….The apparent contingency be deliberate as genuine usually it is shown that there are that a apparent is not a genuine and that too fatiguing authorities are entitled to first resources to find out a existence and a matter has to be deliberate by requesting a exam of tellurian probability…. Science has not nonetheless invented any instrument to exam a trustworthiness of a justification placed before a justice or tribunal. Therefore, a courts and tribunals have to decider a justification before them by requesting a exam of tellurian probabilities. The Hon’ble Punjab and Haryana High Court, in a box of SomNath Maini v CIT [2008] 306 ITR 414 (Punj. &Har.), has reason that “the assessing officer is to ask a exam of tellurian probabilities for determining genuineness or differently of a sold transaction. Mere heading of a justification that a transaction was genuine, can't be conclusive. Any such justification is compulsory to be assessed by a assessing officer in a reasonable way. Genuineness of a transaction can be deserted in box a assessee needs evidence, that is not trustworthy, and a Department does not need any justification on such an issue. In box of Smt. Vasantibai Shah 213 ITR 805 (Bom) a justice celebrated that The Income taxation Officer is entitled to take into care a assemblage of the^ grant and resources of a box and to pull his possess deduction on a basement thereof. Circumstantial justification in such cases is not impermissible. In Hemant Mansukhalal Pandya cases like this it is usually a inconclusive justification that will be available. No approach justification can be expected……..”
In box of J S Parker 94 ITR 616 (Bom) it was reason that”the taxation guilt underneath a Income taxation Act is of polite nature. To bind a taxation payer with such a guilt it is not compulsory that a justification should be in a inlet of “beyond doubt” as is compulsory to repair a rapist liability. Tax guilt can be fixed on a basement of majority of probabilities”.

12. The assessee in this box has not constructed any justification to reason that a income deposited in his unfamiliar bank accounts (HSBC Private Bank, Suisse (SA), Geneva) does not have ajvy source from India. The genuineness and a flawlessness of a Base note is already explained in para 2 of this order. The same has been supposing to a assessee. Despite a several opportunities given, a assessee chose not to offer any reason to a sources of deposits done in these accounts on a row that as a non-resident he is underneath no requirement to yield such explanations.

12.1 On a other palm a assessee has properties in India. He has a prosaic during Vile Parle (W), Mumbai for many years and also Demat Account No: 1201170000006304 in that a Portfolio gratefulness as on 16.2.2015 is Rs. 1,04,82,0267- from 55 shares held. During a comment proceedings, a assessee has constructed a permanent proprietor label of Japan that is stream from 27.11.2001. When asked to yield a reason to uncover that he was accessible to have business / row or work assent in Japan or any other nation in that he was earning his income before to 2001; vide notice u/s 142(1) of a Act dt. 4.2.15, a assessee chose not to yield any details. Therefore, a usually end that can be drawn is that before to this date, a assessee can't be intent in any business, row or practice in Japan. The rise change in his HSBC, Geneva comment during a duration 2005 to 2007 is USD 6237932.15 as on September, 2006 that translates to Rs. 28,75,68,6727- (@ Rs. 46.10 per USD). As per a Base Note a comment was non-stop in 10.7.1998. What this shows is that a assessee could not have generated any income from Japan or any other nation other than India before to 2001 that could outcome into a bank change of Rs. 28,75,68,672/- by 2006.

12.2 The assessee chose not to divulge sources of income returned by him in Japan nor a bank matter of his HSBC, Geneva accounts. Further, it is in a open domain that HSBC, Geneva has been inquired per a purpose in facilitating a clients to hedge taxes. Also, a names of several people including a assessee himself have been mentioned in a list of comment holders in HSBC, Geneva who has been suspected of taxation evasion. Hence there is a prima-facie hypothesis of amounts in a conspicuous comment being undisclosed and sourced from India. The comment record offer an event to a assessee to plead these reckless nonetheless he has selected not to divulge his HSBC bank accounts and a sources of deposition notwithstanding several opportunities given. The resources of a box in perspective of a jurisprudence as mentioned above points usually to one thing with courtesy to a source of deposits in a HSBC, Geneva accounts; that a deposits were done by a assessee in his HSBC, Geneva accounts from sources in India that has not been disclosed in his lapse of income. 3001821(1:

13. In perspective of a above, a rise volume as appearing in a Base Note of a assessee’s HSBC comment in AY 2006-07 being USD USD 942339.71 that translates to Rs. 4J8,95,304/- (@ Rs. 45.52 per USD) is hereby combined to a sum income of a assessee as income deemed to accumulate or arise in India for that a assessee offers no reason about a source and inlet thereof.”

8. Aggrieved by a comment order, a assessee elite seductiveness before a CIT(A). Before a CIT(A), assessee has challenged a outcome of reopening of comment and also serve done by a AO on merits. The assessee has Hemant Mansukhalal Pandya filed elaborate combined submissions on a emanate of reopening of comment that has been reproduced during para 4 on pages 4 to 8 of his order. The sum and square of a arguments of a assessee before a Ld.CIT(A) are that a purported bottom note is fabricated, unauthorsied, unauthenticated and hence, not accessible as evidence. Therefore, a recording of reasons and accompanying re-assessment record formed on such unrelatable justification are deceptive in law. The bottom note is encouraged by malafide intentions that is fake and built and has been illegally attributed to a assessee. The reopening of comment on a basement of improper justification has no authorised sanctity. There is no live sequence between a reasons accessible for reopening of a comment and escapement of income. The really simple reason for reopening of a comment is on a premises that a assessee had not filed his lapse of income for a germane comment year, nonetheless fact stays that a assessee was frequently filing his lapse of income and he has filed his lapse of income for a germane comment year and therefore, reopening of comment on improper reasons can't tarry underneath a law. The assessee has relied on several authorised decisions, including a preference of Hon’ble Gujarat High Court in a box of Sagar Enterprises vs ACIT (2002) 257 ITR 335 (Guj).

9. The assessee also filed minute submissions on additions done by a AO Hemant Mansukhalal Pandya towards credits found in HSBC Bank, Geneva. The sum and square of arguments of a assessee before a Ld.CIT(A) are that a information perceived from French Government is associated to residents as mentioned by a AO, nonetheless a assessee is a non proprietor and his standing as a non proprietor is not in dispute. The non residents are not underneath ob ligation to divulge unfamiliar bank accounts to a Indian Income-tax department. The assessee also questioned a flawlessness of bottom note by saying that a bottom note is conjunction certified nor is it accurate from a original. It is usually erroneous square of paper mentioning some information. On a basement of unauthenticated, unverified document, no serve can be made. The assessee has reiterated his arguments done before a AO to disagree that he is a non proprietor given 1990 and he is carrying no business connection, whatsoever, in India and also whatever income deemed to accumulate or arise in India has already been announced in his lapse of income; filed for a germane comment year, therefore, merely some information has been perceived from some source, a same can't be deliberate to make an comment on non proprietor in India in honour of bank accounts and resources reason outward India. The assessee has filed an confirmation saying that he does not have any business tie in India. The assessee also has given duplicate of his bank comment reason with Dena Bank from 1998 onwards. It is transparent from a bank comment that a assessee has not Hemant Mansukhalal Pandya remitted any volume abroad from India. It is really most transparent from a sum furnished before a AO that there is no tie between HSBC Bank comment confirmed in Geneva and income accrued or deemed to accumulate in India. The AO done additions usually on a basement of unauthenticated information perceived from outward source though bringing on record any justification to uncover that a assessee has diverted income from India and remitted abroad to a bank comment confirmed in HSBC Bank, Geneva. In a deficiency of anything contrary, a AO was erred in creation a assessee to infer disastrous when a assessee is not underneath requirement to record his unfamiliar bank comment and item sum and a law also does not charge to record those details, that is rarely improper on a partial of a AO to make serve merely on a basement of a bottom note that is a square of wandering paper carrying no authorised authenticity.

10. The Ld.CIT(A), after deliberation a submissions of a assessee and also by relying on several authorised precedents deserted authorised belligerent taken by a assessee severe reopening of a comment on a belligerent that a AO had accessible a reason on a basement of information perceived from Investigation Wing, which, prima facie establishes escapement of income within a definition of territory 147 of a Income-tax Act, 1961. The box law cited by a assessee are discernible from a grant and there is no consequence in a authorised Hemant Mansukhalal Pandya belligerent taken by a assessee and accordingly, a same has been dismissed.

11. Insofar as serve done by a AO towards credits found in HSBC Bank, Geneva, a Ld.CIT(A) reason that a AO could not have done a serve though he himself practical his possess eccentric mind to a grant and element collected by a Investigation Wing. The AO should have done his possess enquiries on a basement of information perceived from a Investigation Wing to settle a fact that there is a sequence between income subsequent in India and bank deposits found in HSBC Bank account. In a comment order, a AO; however, did not in any demeanour discussed a source of information or evidences collected on a basement of that it was reason that a assessee reason a HSBC Bank, Geneva comment and change in a same represents transient income. On a other hands, a assessee has filed adequate materials to infer that he is a non proprietor Indian given 1990 and he is operative in Japan on business visa compartment 2001 and afterward got permanent residency certificate. The assessee also filed his passports to infer he is in India for all those years usually for a singular period, i.e. reduction than 60 days. It is also an certified fact that a assessee has filed his income-tax lapse in a standing of non proprietor disclosing income accrued or deemed to accumulate in India and such lapse has been supposed by a dialect in a standing of non resident. Once, a AO carrying supposed a standing of non proprietor of a assessee, should not have Hemant Mansukhalal Pandya questioned a source of amounts deposited in unfamiliar bank accounts though substantiating a fact that a conspicuous deposition is sourced out of income subsequent in India. The Ld.CIT(A) serve celebrated that a assessee has filed an confirmation and announced that nothing of his unfamiliar resources had any tie with India or any Indian business. It is also definitely staid in a confirmation that a assessee does not have any source of income in India solely seductiveness and division income that he had already announced in his income-tax lapse for a germane years. With these observations and also by following certain authorised precedents, a CIT(A) deleted serve done by a AO towards credits found in HSBC Bank account. The germane observations of a Ld.CIT(A) are extracted below:-

“8.11 During a march of appellate proceedings, AR submitted a preference in a box of Anil Kumar Jain Appeal No.: 145/14-l5/CIT(A)-4, wherein it was reason by a Hon. COMMISSIONER OF INCOME TAX [APPEALS]-4, NEW DELHI that:

“It is dear that for creation an serve u/s 69 a responsibility is laid on a income to move on record element from that it could be resolved that a deposits in such accounts pertained to assessee himself. In a benefaction box a AO has not brought on record any element that could conclusively infer that a deposits in several accounts were done by a appellant himself or for that matter it belonged to a assessee himself. It is also germane to note that even the, AO did not have any element to establish such exchange and therefore in deficiency of any such material, serve could not be done merely formed on some information that has not been put to test.
Considering a propositions of cases cited above it is transparent that unless a AO brings on record element that substantively infer that volume of deposits in such comment were income of a appellant, no serve could be made.”

8.12 i. In a box before me also a AO has unsuccessful to justify a explain that a volume in doubt belonged to a appellant.
ii. It is a proven fact that a assessee is a ‘Non Resident’ in terms of Section 6 of a Act given prolonged and is filing a taxation earnings in India reflecting a standing as Non Resident. It is also good to note that a proprietor standing of a assessee is not in brawl Hemant Mansukhalal Pandya and a same was duly supposed by a Assessing Officer during a march of reassessment record underneath Section 147/148 of a Act. iii. Also, a charging territory for a functions of a Act is territory 5(2) in box of non-residents. In other words/ for a sum to be taxed in India in a hands of a Appellant, it contingency be perceived or deemed to be perceived in India or it accrues or arises or is deemed to accumulate or arise to him in India. The residential standing of a appellant i.e. Non-resident is duly supposed by a AO and is not in dispute. iv. Reliance is placed on a settlement in a box of DCIT v Finlay Corp, ltd(2003) 86ITD 626(Delhi), wherein it was reason that:

“The income of a non-resident is reprehensible usually underneath Section 5(2) and a supplies of Section 68 can't overrule a supplies of Section 5(2). Taxability of non-resident can be seen usually underneath Section 5(2) and a supplies of Section 69 could not be pulpy into use given such supplies do not overrule a supplies of Section 5(2). It is staid authorised position that weight is on a Revenue to infer that income of an assessee falls within a net of taxation. Section 5(2) being a Charging section, a weight is on a Revenue to infer that a income of a non-resident falls within a ambit of such section.”

v. Reliance is placed on a settlement in a box of Saraswati Holding Corporation vs. Deputy Director of Income Tax[20/07/2007] (111 TTJ Delhi 334), wherein a Tribunal inspected a preference of Dy. CIT v. Finlay Corporation Ltd. (2004) 84 TTJ (Del) 788 : (2003) 86 LTD 626 (Del), quoted during indicate no. vi in that it was reason that:

“The supplies of Section 68 or Section 69 can't increase a range of Section 5(2). Under Section 5(2), a income accruing or outset outward India is not taxable unless it is perceived in India.”

vi. Reliance is also placed on a settlement in box of Vodafone International holding B.V v Union of India in 2012(Supreme Court), wherein it was reason that: “Under Section 5(2) of a Income Tax Act, in box of NRIs a income accrued and perceived outward India can't be theme to taxation in India. What is not taxable underneath Section 5(2), can't be taxed underneath a supplies of Sections 68 and 69 as undisclosed income”

vii. Thus, respectfully following a preference in a box of DCIT v Finlay Corp. Ltd, Saraswati Holding Corporation vs. Deputy Director of Income Tax and Vodafone International holding B.V v Union of India in 2012(Supreme Court), it is reason that what is not taxable underneath Section 5(2) can't be taxed underneath a supplies of Section 68 or Section 69. Provisions of Section 68 or 69 would be germane in a box of nonresident usually with anxiety to those amounts whose start of source can be located in India.

viii. Therefore, supplies of Section 68 or 69 have singular focus in box of non- proprietor and given a appellant has disclosed all his income warranted in India or accruing or outset to him in India by frequently filing his Return of Income as a non-resident, a appellant can't be taxed for income warranted outward India unless a Revenue proves that a income falls , within a ambit of Section 5(2). No such justification has been brought on by a AO to support his contentions and hence a AO’s contentions mount no ground. In a benefaction case, it is also celebrated that in a appellant’s box a serve is done though referring to any Section. Such an act on partial of a AO is not justified.

ix. The Appellant had also filed an Affidavit dogmatic that any of Assessee’s unfamiliar comment or unfamiliar resources had no tie with India or with any Indian business. It is also definitely staid in a confirmation that a appellant does not have any exclusive or partnership business in India nor he is an worker or executive of any Hemant Mansukhalal Pandya association in India. He does not have any source of income in India solely seductiveness and division income that he has already announced in a Return filed. x. In this regard, a AO has acted mechanically in creation serve to this outcome though rebutting a appellant’s transparent and categoric stand. It is good staid law that confirmation is an critical square of justification and if a same is not found faulty, any inauspicious perspective taken by a authorities endangered would lead to estimable doubt of law. Reliance is placed on a visualisation of rise justice in box of Mehta Parikh & Co. [1956 AIR554] where their lordship has reason as under, “Facts stream or certified might yield to support serve conclusions to be deduced from them, that conclusions might themselves be conclusions of fact and such inferences from grant stream or certified could be matters of law. The justice would be entitled to meddle if it appears that a fact anticipating management has acted though any justification or on a perspective of a facts, that could not pretty be entertained or a grant found are such that no chairman behaving judicially and scrupulously educated as to a germane law would have come to a integrity in question.”

xi. Thus, in perspective of a above and deliberation a grant and resources of a box and respectfully following a decisions in a box of DCIT v Finlay Corp. Ltd(2003) 86 ITD 626(Delhi), Saraswati Holding Corporation vs. Deputy Director of Income Tax[20/07/2007] (111 TTJ Delhi 334) and Vodafone International holding B.V v Union of India in 20l2(Supreme Court) cited supra, we am incompetent to allow to a perspective taken by a AO. Considering a grant we am prone to accept a arguments of a appellant and accordingly a serve of Rs. 4,28,95,304/- done in this box is hereby deleted and a Ground Nos. II (Sub- Grounds 3 to 5), III (Sub-Grounds 6 to 11) are authorised in foster of a appellant.”

12. The Ld.DR submitted that a Ld.CIT(A) was erred in holding that a AO has done serve on a basement of built / done information with some mala fide goal though appreciating a fact that a information has been exchanged between dual emperor countries as per that some Indian nationals and residents have confirmed bank comment in HSBC Bank, Geneva and conspicuous bank accounts are not disclosed to Indian income-tax authorities. The Ld.DR serve submitted that a Ld.CIT(A) was erred in ignoring a fact that a assessee did not pointer determine waiver form for carrying out any serve enquiry from HSHC Bank, Geneva that could have supposing all germane information. The Ld.CIT(A) has abandoned this critical fact and deleted serve on Hemant Mansukhalal Pandya a premises that a AO should have stream arguable and authentic evidences given a assessee himself blocked / thwarted such attempt. The assessee conjunction denied of carrying confirmed comment in HSHC Bank, Geneva nor filed any sum to infer that a conspicuous bank comment does not have any couple to income subsequent or sourced from India. In deficiency of any evidences filed by a assessee, a AO has taken a information perceived from a French Government to reason that a conspicuous deposition is sourced from income generated in India and accordingly done addition. The Ld.DR serve submitted that nonetheless a assessee is progressing a bank account, a sum of such bank comment were never before a Indian Income-tax authorities and also when privately asked to infer a inlet and source of credit, a assessee chose not to record any evidence. The Ld.CIT(A), though appreciating these grant deleted serve done by a AO by changeable a responsibility to a dialect ignoring a fact that when a credit is found, it is for a assessee to infer a conspicuous credit to a compensation of a AO.

13. The Ld.AR for a assessee, on a other hand, strongly upheld a sequence of a Ld.CIT(A) and submitted that when a reduce authorities never doubtful fact that a assessee is a non proprietor given 1990, abandoned a law, that clearly states that non residents are not compulsory to announce their unfamiliar bank accounts and resources to a Indian Income-tax authorities. The Ld.AR Hemant Mansukhalal Pandya serve submitted that a assessee has explained a position before a AO nonetheless a AO, abandoned all evidences filed on a basement of unauthenticated bottom note perceived from French Government to make serve towards credits found in HSBC Bank, Geneva though substantiating a fact that such credit is sourced from income subsequent in India. The assessee has filed an confirmation and staid that he does not have any business tie in India or employed in any Indian company. He has filed his income-tax lapse in India in a standing of ‘non-resident’ disclosing income perceived and deemed to accumulate or arise in India and such earnings have been supposed by a department. The assessee also filed bank statements of his Indian bank comment confirmed in Dena Bank from 1998 onwards to infer that there is no poignant debits that can be related to deposits found in HSBC Bank, Geneva. The bank comment confirmed in India is credited with income subsequent from India from his portfolio investment and a conspicuous income has already been offering to taxation in India. The AO, though carrying out any eccentric enquiry to discern a fact that a deposits in HSBC Bank, Geneva is carrying sequence to Indian income, done serve usually on a basement of bottom note that is unverified and unauthenticated. The assessee being a non proprietor is underneath no requirement to divulge his unfamiliar accounts and resources and accordingly he never disclosed his bank comment confirmed in HSBC Bank, Geneva to a Indian Income-tax Hemant Mansukhalal Pandya authorities.

14. The Ld.AR, serve referring to ITR form prescribed for filing of lapse of income by a individuals, submitted that a impulse a chairman chooses his standing as ‘non resident’, a columns supposing for stuffing unfamiliar bank accounts and resources sum do not appears in a lapse of non residents and hence, a doubt of disclosing conspicuous information to a Indian Income-tax authorities does not arise. The Ld.AR serve referring to a matter of a Minister of State for Finance, has simplified on a building of a Lok Sabha on 02-12-2011 that small holding of an comment outward India does not lead to a end that a volume is not taxed in India. He also referred to white paper on black income introduced by Government to explain that there might be cases where a comment holders might be NRIs, is not assessed to taxation in India with honour to those sums or a sums deposited might already have been disclosed to a Income-tax department. He also referred a matter of Minister of Finance published by Press Information Bureau on 04-04-2016 to explain a position of non residents in honour of bank accounts found in HSBC Bank, Geneva, as per which, a Government itself does not wish to take any movement in honour of non residents holding unfamiliar bank accounts. Even a supplies of black income (undisclosed unfamiliar income and assets) and deception of taxation Act, 2015 germane usually to residents. Even a FAQs to a blck income undisclosed Hemant Mansukhalal Pandya unfamiliar income and assets) and deception of taxation ACT, 2015, questions 22 & 32 simplified that non residents are not compulsory to divulge unfamiliar bank accounts and resources to Indian income-tax authorities. The Ld.AR serve submitted that to establish possibly a sold deposition in unfamiliar bank comment is sourced in India what needs to be deliberate is a withdrawals from a bank comment of a assessee confirmed in India. If one considers a withdrawals of a assessee from his bank comment confirmed in Dena Bank that is approximately Rs.9.25 lakhs, that could not have saved an volume of Rs.4.28 crores in a unfamiliar bank account. The AO, though bringing on record any justification to support a bottom note to infer that a credits found in HSBC Bank, Geneva is sourced from income generated in India, asked a assessee to infer disastrous though any basis. On a other hand, assessee has filed finish sum to infer that a conspicuous deposits is carrying no connection, whatsoever to Indian income. The Ld.CIT(A), after apprising all these facts, has righteously deleted serve done by a AO. In this courtesy he relied on a preference of ITAT, Delhi in a box of DCIT vs Finlay Corporation Ltd (2003) 86 ITD 626 (Del); Delhi High Court in a box of CIT vs Suresh Nanda (2013) 352 ITR 611 (Del); and ITAT, Chennai in a box of Smt. Susila Ramaswamy vs ACIT (2010) 37 SOT 146 (Chen).

15. We have listened both a parties, deliberate a element accessible on Hemant Mansukhalal Pandya record and left by a orders of authorities below. We have also deliberate a box laws cited by possibly parties. The AO done serve towards volume found credited in HSBC Bank account, Geneva on a belligerent that a assessee has unsuccessful to explain and infer that deposition is not carrying any tie to income subsequent in India and not sourced from India. The AO has done additions on a basement of a ask called ‘base note’ perceived from French Government, as per that a assessee is progressing a bank comment in HSBC Bank, Geneva. The AO has analysed a essence of bottom note to a sum filed by a assessee in his income-tax lapse to come to a end that a information contained in a bottom note is relating with a sum of a assessee and accordingly opined that a conspicuous bank comment is belonging to a assessee. Except this, a AO has not conducted any eccentric enquiry or practical his mind before entrance to a end that possibly a information contained in bottom note is accurate or authenticated. The AO never doubtful a fact that a assessee is a non resident. The reduce authorities have supposed a fact that a assessee is a non proprietor given 2001. The AO also supposed a fact that a non residents are not compulsory to divulge their unfamiliar bank accounts and resources to a Indian Income-tax authorities. But, a AO has done serve on a belligerent that before 2001 it was not transparent as to possibly a assessee, is a proprietor or non proprietor and a assessee also Hemant Mansukhalal Pandya not filed any documentary justification to infer that he is carrying business visa in Japan and warranted income therefrom. The AO has shifted a weight on a assessee to infer negative. According to a AO, it is for a assessee to infer that a credits found in HSBC Bank is not sourced out of income subsequent from India.

16. The supplies of territory 5 of a Act has tangible a range of ‘total income’ in a Indian Income-tax Act. As per supplies of territory 5(2), a sum income of any prior year of a person, who is a non proprietor includes all income from whatever source subsequent that perceived or is deemed to perceived in India in such year by or on seductiveness of such chairman or accrues or arises or is deemed to accumulate or arises to him in India during such year. Explanation 1 supposing to territory 5 clarifies that income accruing or outset outward India shall not be deemed to accept in India within a definition of this territory by reason usually of a fact that it is taken into comment in a balance- square prepared in India. Therefore, as per a supplies of territory 5(2) of a Income-tax Act, 1961, usually income that accrues / arises in India or is deemed to accumulate or arise in India is taxable in India in box of non residents. Under this authorised background, when we inspect a fact of a box of a assessee, possibly credits found in bank comment confirmed by a assessee in HSBC Bank Geneva is accrued / arisen in India or is deemed to accumulate or arisen in Hemant Mansukhalal Pandya India and is taxable in India in a hands of non residents has to be examined. Insofar as a residential standing of a assessee, there is no dispute. The AO has supposed a fact that a assessee is a non resident. In fact, a assessee has filed his pass sum right from AYs 1995-96 to 2011-12 as per which, a assessee was in India for reduction than 60 days in all these years. The assessee also filed an confirmation saying that he does not have any business tie in India possibly by a proprietory / partnership regard or holding directorship in any of Indian companies. The assessee serve staid that he is conjunction in practice in India nor in business activity in India. The assessee also filed sum to infer that he is frequently filing his income-tax lapse in India in a standing of non proprietor disclosing income accrued or arose in India during a germane financial years. The lapse filed by a assessee has been supposed by a dialect for all these years. All these grant have not been doubtful by a reduce authorities.

17. Having said, let us examine, non residents are compulsory to allow sum of his unfamiliar bank accounts and resources in India or not. The assessee has confirmed usually one bank comment in India in Dena Bank that is an NRO account. The conspicuous bank comment has been reflected in AIR information. In sequence to infer that a volume in unfamiliar bank comment is not sourced from India, a assessee filed a bank matter of his usually bank comment in India Hemant Mansukhalal Pandya from a financial years 1998 to 2008. On examination of a bank comment filed by a assessee, it was beheld that there are no debits in a bank comment that could have left to a unfamiliar bank account. Thus, it can be seen that no amounts have been eliminated from his Dena Bank comment in India to any of a bank accounts confirmed including HSBC, Geneva. In fact, a change in a comment confirmed in Dena Bank is so reduction that it can't comment an volume of Rs.4.28 crores that has been combined by a AO as assessee’s income. Despite this, a AO sought to put a responsibility of explanation a disastrous that a deposits in unfamiliar bank comment are not sourced from India, on a assessee. In a deliberate view, a AO is not fit in fixation a responsibility of explanation a disastrous on a assessee. In fact, usually a certain avowal can be proved, nonetheless not a negative. Furthermore, a responsibility of explanation that an volume falls within a fatiguing ambit is on a dialect and it is improper to place a responsibility of explanation disastrous on a assessee. This authorised tender is upheld by a preference of Hon’ble Supreme Court in a box of Parimisetty Seetharaman vs CIT (1965) 57 ITR 532 (SC) where it was definitely reason that a weight lies on a dialect to infer that a sold item is within a fatiguing provisions. Therefore, we are of a deliberate perspective that when a AO found that a assessee is a non proprietor Indian, was improper in creation serve towards deposits found in unfamiliar bank comment confirmed with HSBC Bank, Hemant Mansukhalal Pandya Geneva though substantiating a fact that a conspicuous deposition is sourced out of income subsequent in India, when a assessee has filed compulsory evidences to infer that he is a non proprietor given 25 years and his unfamiliar bank comment and resources did not have any tie with India and that a same have been acquired / sourced out of unfamiliar income that has not accrued / arisen in India.

18. Having conspicuous so, let us inspect possibly a supervision / legislature dictated to taxation unfamiliar accounts of non residents. The Minister of State for Finance has simplified on a building of a Loksabha on 02-12-2011 that small holding of an comment outward India does not have led to a end that a volume is taxation evaded. Further, a white paper on black income introduced by a Government states that if information is perceived about 100 Indians carrying bank accounts abroad, it does not automatically infer that all those 100 accounts paint black income of Indian adults stashed abroad. There might be cases where a comment hilt might be an NRI who is not assessed to taxation in India or a sum deposited might already have been disclosed to a Income-tax department. It is usually after enquiry and execution of comment one can know possibly a volume deposited in a unfamiliar comment represents black income of an Indian citizen. Similarly, in a matter antiquated 04-04-2016 released by a Minister of Finance published by Hemant Mansukhalal Pandya Press Information Bureau, it was simplified that non residents found carrying unfamiliar bank accounts were non actionable. Thus, it is really transparent from a clarifications released by a Government itself that a legislature does not wish to take any movement in honour of non residents holding unfamiliar bank accounts. Further, even in a surpass focus of lapse of income in a income-tax dialect website, a impulse a chairman fills his residential standing as non resident, a surpass focus prevents stuffing of columns regarding to unfamiliar assets. Even, a Hon’ble Finance Minister has simplified that all accounts in unfamiliar bank might not be bootleg as they might go to NRI. Thus, even a supervision has concurred a fact that an NRI unfamiliar bank comment is not illegal. We serve notice that supplies of black income (undisclosed unfamiliar income and assets) and deception of taxation Act, 2015 is germane usually to residence. As per territory 2((2) of a conspicuous Act, an assessee means a chairman being a proprietor other than not usually proprietor in India within a definition of underling territory (6) of territory 6 of a Income-tax Act ,by whom taxation in honour of undisclosed unfamiliar income and resources or any other sum of income is payable underneath this Act and includes, each chairman who is deemed to be an assessee in default underneath this Act. Even, a FAQs to a black income (undisclosed unfamiliar income and assets) and deception of taxation Act, 2015 reiterates a above position in questions No.24 & 32 where it was simplified that if a person, while Hemant Mansukhalal Pandya he was a non-resident acquired or done a unfamiliar item out of income that is not reprehensible to taxation in India, such item shall not be an undisclosed item underneath a Act. The AO, though bargain these grant and also though responding a jurisdictional emanate of possibly a non proprietor assessee was probable to compensate taxation in India in honour of deposits in his unfamiliar bank account, when he had stream that a source of deposition was not from India, went on to make serve on wrong change usually on a basement of information in a form of bottom note that is unverified and unauthenticated. On a other hand, a assessee has filed finish sum in honour of his residential standing that positively proves that he is a non proprietor in India given 1990 and a conspicuous bank comment had been non-stop when he was a non proprietor in India. The assessee went abroad on business visa and started business in 1990 and was earning income in Japan given then. He got permanent residency certificate in a year 2001. The AO, though appreciating these facts, done serve on wrong hypothesis that before 2001 it was different that a assessee was a non proprietor Indian and he has warranted any income outward India that is not taxable in India. Further, a AO has taken a information of unfamiliar bank accounts of Indians to come to a end that a conspicuous information is even germane to non residents though appreciating a fact that even a government’s goal is not to taxation NRIs in honour of unfamiliar bank comment Hemant Mansukhalal Pandya and assets. No element was brought on record to uncover that a supports were diverted by a assessee from India to source a deposits found in unfamiliar bank account. The suspicion, howsoever strong, can't take place of reason and no serve could be done on hypothesis and assumption. The AO has not stream that impugned serve could be done within a ambit of territory 5(2) r.w.s. 68 / 69 of a Income-tax Act, 1961.

19. Coming to a box laws relied on by a assessee. The assessee has relied on a preference of ITAT, Mumbai Bench in a box of DCIT vs Dipendu Bapalal Shah in ITA No.4751-4752/Mum/2016. We find that a prepare dais of ITAT has motionless an relating emanate in honour of unfamiliar bank accounts of non residents and reason that when a AO unsuccessful to infer sequence between deposits found in unfamiliar bank comment and source of income subsequent from India, erred in creation serve towards deposition u/s 68 / 69 of a I.T. Act, 1961. In a conspicuous case, a assessee is a non proprietor in India given 1990 and have no business tie in India during that period. Under those facts, a Tribunal came to a end that in a deficiency of any sequence between deposits found in unfamiliar bank comment and source of income subsequent in India, no serve could be done towards income deposits u/s 68 / 69 of a I.T. Act, 1961. The germane apportionment of a sequence is extracted below:-

“8. We have deliberate opposition contentions and delicately left by a orders of a authorities below. We had also deliberated on a authorised pronouncements referred by reduce authorities in their particular orders as Hemant Mansukhalal Pandya good as cited by schooled AR and DR during a march of conference before us in a context of significant pattern of a case. From a record we found that assessee is a non-resident given 1979, as per Section 6 of a IT Act.
Assessment of a assessee was reopened on a basement of information (called as ‘Base Note’) that was perceived in honour of a assessee from a bureau of DIT(Inv.)-II, Mumbai regarding to a bank comment with HSBC Bank, Geneva, Switzerland. It was submitted by assessee before AO that he is a Non-resident as per territory 6 of a Act given 1979. Copies of his pass were also submitted to a AO in sequence to justify his explain of being a non-resident underneath a Act. Since, he is a nonresident, he submitted that his non-Indian bank comment does not tumble within a reach of a Act. In support of his claim, he also submitted a duly notarized confirmation saying that • He is a Non-resident as per territory 6 of a Income-tax Act, 1961 given 1979.

• He binds a Belgian pass and his stream pass series is El 721068.

• His PAN is BNBPS0099E.

• No income has possibly been perceived or accrued to him in India that was probable to taxation underneath a supplies of a Income-tax Act, 1961 during a Assessment Year 2006-07 and 2007-08.

• The Indian supports are not a source of amounts deposited in bank accounts reason by him outward India.

9. Further, it was submitted that a range of income in box of a nonresident is tangible underneath a supplies of sub-section (2) of territory 5 of a Act. As per this section, a chairman who is a ‘non-resident’ has to compensate taxation usually on that income that is possibly perceived or is deemed to be perceived by him in India, or accrues or arises or deemed to accumulate or arise to him in India, during a year. Thus, he will be probable to taxation usually in honour of income perceived or accrued to him in India.

10. The assessee also submitted that he was not carrying any of his business operations in India during AY 2006-07 hence, there is no income that has possibly deemed to accumulate or arise in India underneath territory 9 of a Act. Thus, a initial grant or even other amounts in a unfamiliar bank comment does not tumble underneath a reach – of territory 9 of a Act. Thus, a rise change appearing in a bank matter of a unfamiliar bank comment should not be combined to a sum income of a assessee. 11. Without influence to a above, he submitted that a rise change appearing in a bank matter of this unfamiliar bank comment has already been combined to a mathematics of income and subjected to taxation in a hands of Deepak Shah and Kunal Shah in their particular assessments for AY 2006-07 and AY 2007-08. A duplicate of a sequence upheld by Assistant Commissioner of Income-tax -16(2) and by Commissioner of Income-tax (Appeals)-27 (‘CIT(A)-27’) in their particular cases was submitted to a AO for his consideration. 12. Further, both these assessees – Deepak Shah and Kunal Shah have paid taxes on a volume of serve to their particular mathematics of income. A outline of a taxes paid by them was also Hemant Mansukhalal Pandya submitted to a AO for his consideration. However, AO did not determine with a assessee’s row and combined rise credit in a comment of HSBC Geneva in assessee’s income. The AO has done additions in a box of assessee.

11. Without influence to a above, he submitted that a rise change appearing in a bank matter of this unfamiliar bank comment has already been combined to a mathematics of income and subjected to taxation in a hands of Deepak Shah and Kunal Shah in their particular assessments for AY 2006-07 and AY 2007-08. A duplicate of a sequence upheld by Assistant Commissioner of Income-tax -16(2) and by Commissioner of Income-tax (Appeals)-27 (‘CIT(A)-27’) in their particular cases was submitted to a AO for his consideration. 12. Further, both these assessees – Deepak Shah and Kunal Shah have paid taxes on a volume of serve to their particular mathematics of income. A outline of a taxes paid by them was also submitted to a AO for his consideration. However, AO did not determine with a assessee’s row and combined rise credit in a comment of HSBC Geneva in assessee’s income. The AO has done additions in a box of assessee.

12. Further, both these assessees – Deepak Shah and Kunal Shah have paid taxes on a volume of serve to their particular mathematics of income. A outline of a taxes paid by them was also submitted to a AO for his consideration. However, AO did not determine with a assessee’s row and combined rise credit in a comment of HSBC Geneva in assessee’s income. The AO has done additions in a box of assessee after holding knowledge of a fact that an serve of a same volume was done in a cases of Mr. Deepak Shah and Mr. Kunal Shah in their particular assessments by a Addl. Commissioner of Income Tax-16(2), Mumbai.

13. By a impugned order, CIT(A) deleted a serve by watching that assessee is indeed a non-resident u/s.6 of a Act and this fact has not been doubtful by a AO. As per a deliberate perspective underneath a supplies of a Act, taxability of a non-resident is dynamic with anxiety to a supplies of territory 5(2) review with territory 9 of a Act. In a benefaction box undisputedly a assessee is a non-resident given 1979, as per a supplies of Section 6 of a IT Act. The range of income in box of a non-resident is tangible underneath a supplies of subsection (2) of territory 5 of a Act. As per this section, a chairman who is a ‘non-resident’ has to compensate taxation usually on that income that is possibly perceived or is deemed to be perceived by him in India, or accrues or arises or deemed to accumulate or arise to him in India, during a year, therefore assessee will be probable to taxation usually in honour of income perceived or accrued to him in India. Further, territory 9 of a Act, lays down a supplies relating to income that is deemed to accumulate or arise in India. As a assessee Mr. Dipendu Shah was not carrying any of his business operations in India during AY 2006-07 and AY 2007-08, there is no income that has possibly deemed to accumulate or arise in India underneath territory 9 of a Act, Thus, a initial grant or even other amounts in a unfamiliar bank comment mentioned by AO in a notice does not tumble underneath a reach of territory 5(2) review with territory 9 of a Act’. Accordingly, assessee is compulsory to be pass by aforesaid exam of taxability of nonresident. It is a good staid position in law that a ‘non-
Hemant Mansukhalal Pandya resident’, carrying income in a unfamiliar nation can't be taxed in India if such income has conjunction been perceived or deemed to be received, nor has it accrued or arisen to him or deemed to accumulate or arise to him in India.

14. Under territory 5(2) a income accruing or outset outward India is not taxable unless it is perceived in India. Similarly, if any income is already perceived outward India, a same can't be taxed in India merely on a belligerent that it is brought in India by approach of remittances. We also found that a assessee in his confirmation antiquated 13 Oct 2011 has clearly staid that a he was a settlor of a trust outward India that he had combined for a advantage of his family members with his initial contribution. Further, he has also staid that nothing of a discretionary beneficiaries have contributed any supports to a conspicuous trust. However, a calm of this confirmation was nowhere declined by a AO nor was reason to be not true. In perspective of a above, a assessee being a non-resident, carrying income in a unfamiliar nation can't be called on to compensate income taxation on that income in India unless it satisfies a tests of taxability of non-resident underneath a supplies of a Act, that in a benefaction box is not removing confident in a box of a assessee. Thus, a bank comment of HSBC Bank, Geneva is outward a preview of this Act.

15. We found that CIT(A) as dealt with a emanate meagre and after requesting authorised pronouncements laid down by High Court and Supreme Court reached to a end that assessee being non-resident is not probable to taxation in honour of income fibbing in a unfamiliar nation unless AO move something on record to uncover that assessee has not over a exam of taxability of non-resident underneath a supplies of a Act. The minute anticipating so accessible by CIT(A) are as per element on record and do not need any division on a part. 16. The CIT(A) also observe that a inconclusive justification whenever used has to be decisive in nature. Thus, a inconclusive evidences relied on by a schooled AO nowhere lead to a end that a amounts in a purported unfamiliar bank comment are sourced from India. The CIT(A) also accessible a anticipating to a outcome that a source of deposits is no where stream by a 4 instances relied on by a AO being termed as inconclusive evidence. The schooled AO has himself celebrated formed on a consult news antiquated 18 Nov 2011 that a assessee had late from partnership of M/s Kanubhai B. Shah & Co. given Oct 1978. Also, a schooled AO celebrated in a subsequent para that a assessee became a non-resident as per territory 6 of a Act given 1979 that is a year after that he late from being a partner in a firm. Thus, a serve of undisclosed income of a organisation M/s Kanubhai B. Shah &: Co. during a FY 2011-12 has no tie with a assessee, as he was not a partner during this period. In a benefaction case, even it is seen that a bank comment with HSBC Bank, Geneva was non-stop during a year 1997. Hence, a inconclusive evidences discussed above including a news of Indian demonstrate of 10 Feb 2015, relied by a schooled AO nowhere conclusively establishes that a source of a deposits, given a inception, in a bank comment was from India. In perspective of a above discussion, we do not find any feebleness in a sequence of CIT(A) for deletion a serve done in honour of deposits in HSBC Account, Geneva in a hands of non-resident assessee. Facts and resources in both a years are same.
Hemant Mansukhalal Pandya

16. The CIT(A) also observe that a inconclusive justification whenever used has to be decisive in nature. Thus, a inconclusive evidences relied on by a schooled AO nowhere lead to a end that a amounts in a purported unfamiliar bank comment are sourced from India. The CIT(A) also accessible a anticipating to a outcome that a source of deposits is no where stream by a 4 instances relied on by a AO being termed as inconclusive evidence. The schooled AO has himself celebrated formed on a consult news antiquated 18 Nov 2011 that a assessee had late from partnership of M/s Kanubhai B. Shah & Co. given Oct 1978. Also, a schooled AO celebrated in a subsequent para that a assessee became a non-resident as per territory 6 of a Act given 1979 that is a year after that he late from being a partner in a firm. Thus, a serve of undisclosed income of a organisation M/s Kanubhai B. Shah &: Co. during a FY 2011-12 has no tie with a assessee, as he was not a partner during this period. In a benefaction case, even it is seen that 16. The CIT(A) also observe that a inconclusive justification whenever used has to be decisive in nature. Thus, a inconclusive evidences relied on by a schooled AO nowhere lead to a end that a amounts in a purported unfamiliar bank comment are sourced from India. The CIT(A) also accessible a anticipating to a outcome that a source of deposits is no where stream by a 4 instances relied on by a AO being termed as inconclusive evidence. The schooled AO has himself celebrated formed on a consult news antiquated 18 Nov 2011 that a assessee had late from partnership of M/s Kanubhai B. Shah & Co. given Oct 1978. Also, a schooled AO celebrated in a subsequent para that a assessee became a non-resident as per territory 6 of a Act given 1979 that is a year after that he late from being a partner in a firm. Thus, a serve of undisclosed income of a organisation M/s Kanubhai B. Shah &: Co. during a FY 2011-12 has no tie with a assessee, as he was not a partner during this period. In a benefaction case, even it is seen that a bank comment with HSBC Bank, Geneva was non-stop during a year 1997. Hence, a inconclusive evidences discussed above including a news of Indian demonstrate of 10 Feb 2015, relied by a schooled AO nowhere conclusively establishes that a source of a deposits, given a inception, in a bank comment was from India. In perspective of a above discussion, we do not find any feebleness in a sequence of CIT(A) for deletion a serve done in honour of deposits in HSBC Account, Geneva in a hands of non-resident assessee. Facts and resources in both a years are same.”

20. Coming to a box laws relied on by a revenue. The Ld.DR has relied on a preference of ITAT, Mumbai Bench in a box of Rahul Rajnikant Parikh in ITA No.5889/Mum/2016. We find that a box law relied on by a income has no focus to a grant of a assessee’s case, as in a conspicuous Hemant Mansukhalal Pandya case, a Tribunal has not laid down any ratio. The matter was set aside to a record of a AO by determine of both a parties. It is a staid law that a settlement / sequence delivered by determine has no precedential value. Even otherwise, a taxpayer in a conspicuous box had business connectors in India by approach of being a partner in partnership firms. Under those facts, a Tribunal has set aside a emanate to a record of a AO for serve examinations on a ask of both a parties. Admittedly, in this case, a assessee is a non proprietor and he does not have any business tie / seductiveness in India. Therefore, a box law relied on by a Ld.DR can't be practical to a grant of a benefaction case.

21. In this perspective of a matter and deliberation a ratios of a box laws discussed above, we are of a deliberate perspective that a AO was erred in creation serve towards deposits found in HSBC Bank account, Geneva u/s 69 of a Act. The Ld.CIT(A), after deliberation germane facts, has righteously deleted serve done by a AO. We do not find any blunder or feebleness in a sequence of Ld.CIT(A). Hence, we are prone to defend a commentary of Ld.CIT(A) and boot a seductiveness filed by a revenue.

22. In a result, a seductiveness filed by a income is dismissed. ITA No.4680/Mum/2016 – 2007-08

23. The grant and issues concerned in this seductiveness are relating to a grant and Hemant Mansukhalal Pandya issues that we have already deliberate in ITA No.4679/Mum/2016. The reasons given by us in preceding paragraphs shall mutatis mutandis ask to this seductiveness also. Therefore, for a sum reasons given therein in ITA No.4679/Mum/2016, we confirm a emanate in foster of a assessee and opposite a revenue.

24. In a result, seductiveness filed by a income is dismissed. Cos No.58 & 59/Mum/2018

25. The assessee has taken a authorised belligerent in a cranky objections on a emanate of outcome of reopening of assessments for both a comment years. Since we have already motionless a emanate on merits in foster of a assessee and opposite a revenue, a cranky objections filed by a assessee severe outcome of reopening of assessments becomes educational in nature. Therefore, a same are dismissed, as infructuous.

26. As a result, both a appeals filed by a income and a cranky objections filed by a assessee are dismissed.

Order conspicuous in a open justice on 16th November, 2018.

Sd/- sd/-
(Pawan Singh) (G Manjunatha)
JUDICIAL MEMBER ACCOUNTANT MEMBER

Mumbai, Dt : 16th November, 2018
Pk/-
Copy to :

Hemant Mansukhalal Pandya

1. Appellant
2. Respondent
3. CIT(A)
4. CIT
5. DR
/True copy/ By order

Asstt. Registrar, ITAT, Mumbai