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2014 (11) TMI 14 - AT - Income TaxDetermination of status of assessee - Residential or not - Held that:- Following the decision in Shri Suresh Nanda Versus ACIT, Central Circle-13, New Delhi [2014 (4) TMI 739 - ITAT DELHI] - although, the assessee has, in the preceding 4 years been in India for a period in excess of 365 days in India, in none of years has he been in India for a period in excess of 182 days - assessee was not a resident of India - This is a pure question of fact based on a plain reading of the provisions of section 6 - All that has to be seen is the number of days that the respondent/assessee has spent in India in the year in question as also in the preceding 4 years – thus, the order of the CIT(A) is upheld – Decided against revenue. Addition of commission income earned in defence deals - Held that:- No addition can be made based on the document - Dr.MV Rao has not been questioned on these documents - The document does not indicate that services have been rendered by the assessee or that any commission was received - Thus, no addition can be made based on the document - no mention or a reference was made to the assessee Mr.Suresh Nanda, much less any suggestion being made that Mr. Suresh Nanda was involved in defence deals or that he had earned any commission - the statement does not support the contentions of the Revenue that the assessee has earned commission - Dr.MV Rao has not admitted the ownership of the document found in his premises though the presumption is against him - In any event the documents have not been demonstrated as those which belong to the assessee by the Revenue - no addition can be made without further evidence being brought on record, that the documents in question actually did not belong to Dr.MV Rao, but in fact belong to the assessee - Addition cannot be made based on presumption – thus, the order of the CIT(A) is upheld – Decided against revenue. Unexplained investments made in M/s Claridges Hotels Pvt.Ltd. and in M/s Claridges SEZ Pvt. Ltd. – Held that:- As the assessee being a non-resident, there is evidence of dividend having been received by him outside India from a company incorporated outside India which is the source of investment in UBS Mauritius to the extent of 20% - Hence that income cannot be subjected to tax - There is also finding of fact that the remaining 80% of the shareholding belong to Mr. Hamilton Andrews and the same has been confirmed by him - as decided in assessee’s own case for the earlier assessment year, it has been rightly held that the assessee was not a resident in India, it is axiomatic that the addition u/s 68 would have to be deleted because it was a transfer from the respondent/assessee’s foreign account to the domestic account - the burden to prove that a particular income has either accrued or received in India is on the Revenue, if it chooses to bring to tax a particular receipt as income - In cases where exemptions or deductions are claimed from taxable income, then the burden of proof is on the assessee. The statement given by the assessee to the DIT Investigation, does not better the case of the Revenue, as the assessee has claimed that his interest in M/s Claridges Hotels P.Ltd. is only by way of investments made through M/s UBS, Mauritius, in which company he has only 20% stake. Simply because the assessee is the Chairman of M/s Clardges Hotels P.Ltd. and because his son was Managing Director of the company, it does not support the addition, the investment in the hotel is made by M/s UBS Ltd., Mauritius in while the company which the assessee controls it is a minority share holder - The assessee has demonstrated that he controls only 20% stake holder in M/s UBS Ltd., Mauritius - The dividend earned by the assessee from a company controlled by him i.e. M/s UBS Trading FZC was invested in M/s UBS Ltd. Mauritius, through Infotech Services Ltd. – Decided against revenue. Unexplained deposits in Deutsche Bank, Singapore – Held that:- As decided in assessee’s own case for the earlier assessment year, it has been held that the decision with regard to it would depend on whether the assessee is regarded as a resident or a non-resident - In case he is regarded as a resident then, obviously, this addition would have to be made - But, if he is regarded as a non-resident then this addition will have to be deleted - This is exactly what the Tribunal has done - assessee was not a resident in India in the years, it is axiomatic that the addition u/s 68 would have to be deleted because it was a transfer from the assessee’s foreign account to the domestic account – Decided against revenue. Payment made to assessee’s wife – Held that:- As decided in assessee’s own case for the earlier assessment year, it has been held that the addition cannot be upheld inasmuch as both were separated by way of deed of settlement dated 4-4-1998 and the payments based thereon on were already made - The addition has been made not based on any evidence or incriminating material, indicating that any payment was made out of books - The sole basis of addition is an assumption that there was some unwritten understanding between the assessee and his estranged wife Smt. Renu Nanda - lesser amount for support was paid by the assessee as compared to earlier years - the basis of addition being only on presumptions, there being no material what so ever, the addition is deleted – Decided against revenue.
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