TMI Blog2014 (10) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in a period of grieving, confusion and loss cannot be expected to exhibit a level of alertness towards its financial affairs - the delay of 855 days in filing the Cross objection is condoned. Status of the assessee - Resident & Ordinarily Resident or Non resident - Whether the status of the assessee can be varied for 2002-03 to 2008-09 assessment years where admittedly no incriminating material was found? - Held that:- The status on facts of the present case determined by the CIT(A) as NRI has been upheld as departmental appeals have been dismissed as admittedly nothing has been found in the search. The status change accordingly on facts was not correctly made by the AO. - Decided in favor of assessee. Inclusion of sum of being amounts remitted from abroad and a gift to the maternal grand- daughter Sesha Gupta out of his overseas bank account – Held that:- Since the additions has been deleted by the CIT(A) which stood made only on account of the status change made in the assessment order dehors facts and the Cross Objections filed are partly supportive of the impugned orders and the impugned orders in each of the years stands upheld in toto the Cross Objections filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... others and have seen that except for the difference in foreign remittance amounts there is no other difference noted by the AO. A reading of assessment order in 2008-09 assessment year shows that the AO records that after the transfer of the case to the DIT(E), Delhi to International Taxation by an order u/s 127 dated 27.12.2007 notice u/s 142(1) dated 17.10.2008 was issued to the assessee requiring him to file the return for the assessment year 2008-09. The return in response thereto was filed on 19.02.2009 declaring an income of ₹ 44,34,854/-. The AO notes that the return filed in response to the notice u/s 142(1) is the same as had been filed by the assessee u/s 139 on 12.08.2008. The returned income it was noticed consisted of income from house property, income from other sources and income from capital gains. The AO was of the view that the claim of Non-Resident Indian was only to take advantage of the benefit u/s 5(2) of the Act available only to a person who is a non-resident Indian within the meaning of section 6 r.w.s 2(30) of the Act which mandates that the income which arises to a NRI outside India shall not be included in his total income. Accordingly the AO is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f his contention the assessee has brought on record certain facts which could throw light on the issue of his residential status. The arguments of the assessee are as under:- The assessee being a law abiding NRI, has always filed his income tax returns regularly in India as per Indian Income Tax Laws under the Permanent Account No.AAAPS5852A. He was a resident individual till FY 1997-98 and was staying at B-101, Greater Kailash, Part-I, New Delhi. Thereafter, he went outside India for the purpose of employment and with an intention to settle permanently abroad in the FY 1998-99. As his stay in India during the FY 1998-99 was less than 182 days, he became Non Resident as per applicable provisions (section 6(1) (a c) read with explanation a ) of the Indian Income tax Act. The number of day s stay of the assessee during the above referred two financial years is stated here under:- AY Previous Year Days Outside India In India Resident at Status Remarks 1998-99 1997-98 150 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mployment outside India: Clause 6 (l)(a) It is on record that the stay of the assessee during the financial year 1 998-99 in India was less than 1 82 days. Since the assessee was in India during the relevant years for a period or periods amounting in all to less than 1 82 days, he would be considered as ' non - resident' as per clause 'a' of section 6 (1) of the Income Tax Act,1961. Clause 6 (1) (c) The assessee had stayed for more than 365 days during the preceding four years relevant to financial year 1 998-99 as he was doing business in India. He was also present in India for a period or periods amounting in all to 60 days or more (but less than 182 days) during the previous year 1998-99. Therefore, on a conjoint reading of both the limbs of clause (c), (without reference to Explanation as being discussed infra) it infers that the assessee becomes resident due to his total stay exceeding 60 days in the financial year 1998-99. Now let us refer to the Explanation below the above said section which governs the applicability as well as operation of the sub clause (c). The Explanation 'a' was inserted under section 6 (1) (c) by the Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s year and continuously having UAE Residency Visa Since 1998. 2001-2002 2000- 2001 188 177 2002-2003 2001- 2002 202 163 2003-2004 2002-2003 193 172 2004-2005 2003- 2004 198 168 2005- 02006 2004- 2005 190 175 2006-2007 2005- 2006 193 172 2007-2008 2006- 2007 188 177 2008-2009 2007- 2008 188 177 It is hereby clarified that the assessee has included both i. e. the day of arrival in India as well as the day of departure from India while computing his total stay in India as highlighted in chart above. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also stands corroborated from the Income Tax Returns filed by the assessee, which clearly reflect that he was Non Resident in the entire period after the year 1998 till date and was deriving income from his assets or investments held in India. 4.5. Reliance was also placed on the legal opinion of Sh. S.D.Kapila, Advocate and two retired Chief Commissioner of Income Tax namely Sh. Ashwani Kumar Garg and Sh. V.K.Aggarwal in support of the submissions of the assessee as advanced before the AO these are extracted hereunder:- .. All the above opinions are in sync with the view of the assessee and all of them are of the opinion that the assessee being a non-resident, would be liable to pay tax in India on his Indian income only and not on the foreign income for all the assessment years beginning from 1999-2000 till 2008-09. They also opined that since India is having Double Taxation Avoidance Agreement with UAE, the provisions of the I.T. Act, 1961 shall apply to the extent they are more beneficial to the assessee as provided in section 90(2) of the I.T. Act. Otherwise he will be governed for his tax liability by the provisions of DTAA. Therefore, the global in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee was getting remuneration in UAE. 4.7. As a result of the above conclusion the following additions were made by him:- 10.1. The above submission of the assessee was examined and found to be non-sustainable for the reasons mentioned below:- a) the assessee has allegedly entered into an agreement with M/s Westmead Holdings Limited which is a company registered in Canada. The nomenclature of the agreement is of employment contract . The contract was signed in London on the 1st day of June. 1998. Neither of the parties of the contract is based in Dubai or locals of UAE. c) two parties from two different countries have signed an agreement in a third country and subjected themselves to the jurisdiction of fourth country before any activities are done in the fourth country. d) The word remuneration conveys a relationship of employer and employee between the parties. In the case of the assessee it is very difficult to say that there was ever a relationship of employer and employee except the nomenclature in the agreement. Few of the bank advices of the remittance bank of the employer were furnished. During the assessment proceedings, the assessee refused to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the relevant year. (Addition of ₹ 77,071,972/-) 10.4. During the year the assessee has given a gift of ₹ 2 lac to Saeisha Gupta. The above gift has been given by the assessee from his bank accounts maintained outside India and the same has not been remitted through the NRE account of the assessee. The assessee refused to give the source of the above amount stating that he not obligated as per law to give the details. Hence the above amount is treated as the income of the assessee for the relevant year. (Addition of ₹ 2,00,000/-) 5. Aggrieved by this the assessee went in appeal before the CIT(A). The CIT(A) as per the lead order in 2008-09 assessment year summarized the facts as under:- 1.3. The facts in brief are as under:- 1.3.1. A search was conducted u/s 132(1) of the Income Tax Act, 1961, on 12.09.2007 on the Emaar MGF Group, New Delhi of which the appellant is a promoter and at appellant's local residential premises at B -101, Greater Kailash -I, New Delhi-110048. That post search, a statement of the appellant was recorded, which is also on record. As per the copy of the Panchnama, placed on record, certain documents were seized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) farm houses in Delhi (c) investment in shares of Companies controlled by him, which also owned substantial movable I immovable assets. RBI in terms of its letter dated 08.09.1998 accorded its permission and directed the appellant to duly inform his bankers in India and companies in which he is a director for the change of the status from Resident to Non-Resident. 1.3.6 The appellant, as noted from record, has placed on record evidence to the effect that he had taken on lease an Apartment No. 230, Golden Sand II, Dubai on March 3rd 1999 for purposes of his residence in Dubai. 1.3.7 The appellant in the returns of income for each of the A. Y.'s 1999-2000 onwards, filed before the date of search, disclosed and stated detailed particulars of his stay in India while claiming his status as Non-Resident. The stay in India as stated by the A.O. in his Assessment Order is summarized as under: Asstt. Year Previous Year Days Outside India Days in India Residential Status Remarks 1999-2000 1998-1999 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing grounds:- (i) Failure to produce the passport in original in support of the period of stay in India as claimed by the appellant and as such failed to discharge the onus of establishing the stay in India. The notarized certified copy of the Passport cannot be relied upon. Para-5, page 4 of order. (ii) The A.O. has stated and Recorded at Para 9 - that appellant satisfies the first limb of explanation (b) to Section 6 (1) (c) but does not satisfy the other two sub-clauses namely being outside India for the reason that the appellant is actively involved in business in India; has relatives settled in India including his wife; is a Director in various Companies in India; has large investment in immovable properties in India including a farm house. (iii) The A.O. has further stated and held at Para 9.4/9.5 - contention / interpretation of the appellant that Explanation (b) to Section 6 (1 )(c) is applicable to a non-resident Indian for all subsequent years after the year he has become non-resident does not hold good and has been rejected. The A.O. has held that circular of the CBDT does not and cannot extend the scope of the Section by granting the benefits of clause ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duly filed before the A.O. 1.4.5. The appellant had specified the period of stay in India in each year in the returns of income filed, which were duly verified by the Intelligence Department and were also verifiable from the notarized copies of the passports of earlier years and in respect of period commencing 07.11.2006 to 31.03.2007 relating to A Y. 2007-08 and for the complete year relating to AY. 2008-09 from the original passport. During the course of hearing before me the appellant produced the original passport issued at Dubai on 07.11.2006 which was examined. The appellant was directed vide my letter to produce the same before the A.O. for his verification. The A.O. verified the original passport and has confirmed that the period of stay in India of the appellant during the period 07.11.2006 to 31.03.2008 as stated by him in the return of income and filed during the course of proceedings is correct. Consequently, the onus of establishing the period of stay in India being less than 182 days has been discharged by the appellant. 1.4.6. Further, the Remand Report and submissions of A.O. were forwarded to the appellant who has filed rejoinder on record. 5.2. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t he be impleaded as a legal heir of the Late Sh. Sudhir Sareen in ITA No-3120 to 3126/Del/2011 for 2002-03 to 2008-09 assessment years. No objection in response to the said letter also filed in the DR s office has been made by the Revenue thereon till date. 8.3. It was submitted that on his visit to India Sh. Siddharth Sareen on receiving his counsels advice apprising him of recent judgements of Delhi ITAT in the case of MGF Automobiles Ltd. dated 28.06.2013 and Kusum Gupta dated 28.03.2013 wherein it had been held that in the absence of incriminating material/documents found during the search, no additions or adverse view can be made/taken in respect of completed assessment the Cos had been filed. 8.4. Addressing the delay in filing the Cos, it was submitted that initially the tax matters were being handled by the late assessee personally who was the father of the legal heir. The late assessee it was submitted expired on 21.02.2013 after a prolonged illness. It was submitted that the late father on account of his illness could not devote time to the legal matters and as soon as the son became aware of the legal position the COs have been filed. In the circumstances it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 2 of the Paper Book page No-2 filed in the C.O.-207 to 210/Del/2011 running from pages 1 to 101. The said pages contain a copy of the letter dated 20.05.2013 filed before the Registry by Sh. Siddharth Sareen requesting that he be impleaded as legal heir of Late Sh. Sudhir Sareen. In support of the said request reliance was placed on the copy of the Will dated 14.07.2010 filed alongwith copy of the death certificate of the Late Sh. Sudhir Sareen. Attention was invited to the seal of the DR s office dated 21.05.2013 affixed therein acknowledging the fact of receipt of the said letter in the DRs office. In response to the request for impleadment in ITA No-3120 to 3126/Del/2011 it was submitted no objections have been filed by the department till date. 11.1. Attention was also invited to the copy of the death certificate filed in the said paper book and copy of the Will at pages 3-10 of the Paper Book. Referring to the same it was submitted that the deceased s family consisted of his wife and two daughters alongwith his son, Sh. Siddharth Sareen. Sh. Sudhir Sareen, the late assessee it was submitted had bequeathed the ownership of shares in various companies specifically mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ife time to rent Claridge House, London, which is in the name of the company Westmed Holding Ltd. 11.2. Accordingly it was his submission that there is no doubt that the sole legal heir of the assessee was the only son of Late Sh. Sudhir Sareen. It was also his submission that the said Will has been acted upon and has been accepted by the department which would be evident from the fact that the appeal in 2010-11 assessment year has been decided by the CIT(A) accepting the capacity of Sh. Siddharth Sareen as a legal heir. 11.3. For ready-reference, attention was invited to Paper Book Page-11-18 which contains the copy of the order of CIT(A)-I, New Delhi pertaining to 2010-11 assessment year dated 22.07.2013:- IN THE OFFICE OF THE COMMISSIONER OF INCOME TAX (APPEALS-1), NEW DELHI Date of Order 22.07.2013 Appeal No. 22/12-13 Instituted on 13.06.2012 from the order of the Assistant Commissioner of Income Tax, Central Circle 7, New Delhi. 1) Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n pages 44 to 49, dated : 14.07.2010, in the office of the Sub-Registrar, New Delhi, in accordance with which my son Shri Siddharth Sareen myself are the Joint Executors. 11.8. Referring to the said Paper Book, it was his submission that there can be no doubt that Sh. Siddharth Sareen is the legal heir of Sh. Sudhir Sareen. 12. The Ld. AR submitted that the judicial precedent laid down by the Coordinate Bench vide its order dated 11.04.2014 in the case of the son of the late assessee who in the present proceedings is the legal heir of the late assessee deserves to be followed. In the facts of that case it was submitted there was a delay of 865 days which has been condoned on similar facts. Reliance was also placed upon Collector Land Acquisition vs MST Katzi others 167 ITR 471(SC) canvassing that justice oriented approach is required to be maintained by a Court while deciding the issues raised on merit as opposed to treating the proceedings in a hyper technical manner. It was his contention that the facts and circumstances with the son s case remained identical. 13. Advancing his arguments on merit as the Ld. CIT DR had suggested that let the CO be argued on merits a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of remittances from his bank accounts abroad to his India Bank Accounts. Are unwarranted, contrary to law, not constituting undisclosed income and as such the assessment order passed u/s 153A of the Act is bad in law and liable to be quashed. 2. That the respondent, craves, leave to add, alter, amend, substitute, forgo, any or all the grounds of cross objections before or at the time of hearing. 14.1. The Ld. AR requested that the word AO referred to in the grounds may be substituted by CIT(A) as it is a typographical error. The Ld. CIT DR stated that he had no objection to the said substitution as he has objections on the grounds of delay and the filing of CO by Sh. Siddharth Sareen as legal heir of the assessee. Accordingly substitution of AO for CIT(A) in the grounds raised in the Cross Objections filed is allowed to be carried out. 15. Referring to the material available on record it was argued by the Ld. AR that the sole issue in the present appeal revolves around the status of the assessee in the background where assessment for 2005-06 assessment year stood completed much before the search which took place on 12.09.2007. Accordingly it was submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.2. Addressing the departmental appeal it was submitted that since the leading order has been passed by the CIT(A) in 2008-09 assessment year i.e in ITA No- 3126/Del/2011 accordingly the arguments would be addressed referring to the said order as they would be more or less identical in the other years except for the difference which he would point out as and when he takes up those issues in the other years. Apart from that it was submitted that the in each of these years the CIT(A) has not addressed the assessee s ground relying upon the Double Taxation Avoidance Agreement which issue though has been challenged by the assessee in its COs also has not been argued. Notwithstanding that the Ld. CIT DR stated that he would rely on the assessment order. 16.3. In the facts of the present case it was his submission that it would be his endeavor to establish that the assessee through some gentleman by the name of Mr.John Ronald Macinnes has created a fa ade and relying upon solicited documents has attempted to hoodwink the department. It was his submission that in the facts of the present case it needs to be borne in mind that the original passport was never produced before the AO e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o expired passports, brief case, some unstated business, general papers, deeds and documents etc. Accordingly it was his contention that in the facts of the present case the secondary evidence relied upon may be discarded as in all the years where original passport was never produced and it was curiously stated to be lost the conclusion should be drawn against the assessee. 16.9. The secondary evidence relied upon in the absence of primary evidence it was submitted consists of solicited documents as such deserves to be rejected and the assessment order to be upheld. 16.10.Carrying us through Section 6 of the Income Tax Act, reliance was placed upon the decision of the Apex Court in Rao Sher Bahadur Singh vs Union of India for the proposition that the interpretation of the statute should not be in such a manner that the provisions are nullified. Similarly CIT vs Kharwar 72 ITR 603 (SC) was also relied upon for the proposition that if the parties have chosen to conceal by a device the legal relation, it is open to the taxing authorities to unravel the device and determine the true character of the relationship. Reliance was also placed upon Mc Dowell 154 ITR 152 (SC) for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passport available was the assessee travelling to different countries including India. It was submitted that the Paper Book page 345-352 would show that the declaration of Trust between NorthQuay Ltd. and Mr.Jon Ronald Macinnes is registered at Isle of Man which is a tax haven. 16.15.Referring to Paper Book page 617 618 which is a copy of the panchnama recorded at the time of search it was submitted that the inventory recorded of the passports found from the residence of the assessee at the time of the search which is annexed at Paper Book page 625 would show that passport of the assessee was not found and only passports of Ms. Bhavna Sareen, Ms.Sumaya Sareen, Ms.Sumiti Sareen Ms.Alice Scaria were found. 16.16. Inviting attention to the statement recorded of Sh. Sudhir Sareen u/s 131 on 31.10.2007 on oath available in the paper book at pages 609-616 it was submitted that in response to the first question where the assessee was required to identify himself, he states that he is Sudhir Sareen, Son of Sh. Agyapal Sareen, Resident of B-101, G.K. Part-I, New Delhi and also of Emirates Hill, Dubai, UAE. The Ld. CIT DR referring to the same contended that the first address wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Ld. CIT DR has raised a lot of arguments based on unfounded suspicions. Addressing the agreement signed in London with a citizen stated to be of Canada on 01.06.1998 and the assessee having travelled on 31st May it was submitted the Ld. DR has questioned how this could be possible. It was submitted that India is ahead in time by 5.30 hours and the international flights leave in the early hours. A person travelling on a flight for business the next day would leave in the early hours of 31st May thus gaining 5.30 hours of the very same day on landing at London. Consequently signing of the document on the next date is hardly surprising. The arguments advanced merely to create suspicioun it was submitted cannot help the Revenue when the facts are clear and admitted. 19.1. Before specifically addressing the departmental objections the Ld. AR sought to first address the background of the case so as to have a correct appreciation of facts by contending that the assessee who was an Indian citizen expired on 21.02.2013 and was regularly filing his return in India till 1998-99 Assessment Year in the status of resident. 19.1.1.The assessee it was submitted left India on 14.08.19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of the change of status. It was submitted that the AO held the assessee to be a Resident; and thus treated the sums remitted from assessee s foreign bank accounts to bank accounts in India as Taxable Income; and also in two years treated the Gifts made out of Foreign bank accounts to his relatives in India also as taxable. 19.1.9.It was submitted that the AO on similar facts in AY 2011-12, considering the stay in India being less than 182 days has accepted the declared status of the assessee as Non-Resident . 19.2. In the above background based on facts and evidences it was his submission that irrelevant facts have been referred to in an incorrect manner so as to create unnecessary suspicions and doubts about the facts of the case. It was submitted that the identity of Mr.John Ronald Macinnes has been questioned ignoring the material on record and the so-called fa ade of why the Agreement was entered into with the assessee and other such related doubts, it was submitted would stand addressed if the facts and record of past history of the assessee is considered. The identity of Mr.John Ronald Macinnes it was submitted would be established from a perusal of the ph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2000-2001 (A.Y. 2001-2002) 191 2001-2002 (A.Y.2002-2003) 198 19.3. The information it was submitted in regard to the number of days outside India was given in the normal course of functioning alongwith the returns over the years based on the passports and much before the date of search. The statement recorded at pages 615 referred to by the Ld. CIT DR it was stated when fully read establishes the fact that the assessee was doing business abroad and had accepted the ownership of the various assets in India and abroad. The stay outside India was bonafide on account of the employment initially and thereafter due to having his own business abroad. Attention was invited to Annexure 6 which contains details of income from various sources earned abroad remitted to India alongwith available bank advise contained at Paper Book page 570-572. Specific reference was made to page 507-509 which was referred to by the AO himself. Page 510 it was his submission as an illustration was pointed out is an advise by Standard Chartered (UAE) making a reference to the remitting bank which is Standard Chartered Bank, US ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to why the assessee was chosen for employment abroad by Mr.Jon Ronald Macinnes it was submitted the material on record would show that the assessee had been appointed as a consultant for various companies in India over the years as would be evident from Paper Book Page 42-53 which is consultant agreement dated 08.01.1991 with Northrop Corporation for which he received retainer fee; Consultant Agreement with D M International at page 55 to 59; Paper Book page 60 it was submitted would show that the assessee had entered into a Consultation Agreement dated 20.11.1993 with Rintra Cont SA owned by Mr.John Ronald Macinnes the said contract it was submitted was renewed as would be evident at page 62-65 which is a renewal consultant agreement dated 25.03.1995 and again on 08.03.1996 it was renewed. Paper book Page 86-90, it was submitted is the employment contract entered at 01.06.1998 at London by the assessee with Westmead Holding Ltd which was represented by Mr.John Ronald Macinnes, a Canadian citizen who was also a director of the said company. The following 5 clauses from the said agreement it was submitted would address the reason as to why the assessee was chosen by Mr. John Ronald ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India so as to permanently settle in Dubai and took charge as C.E.O. For which he received salary etc for the services. Merely because despite the periodic transfers through the bank accounts of the Westmead Holdings to the assessee s bank accounts in Dubai etc. the assessee also considered it necessary according to his understanding to have a salary certificate for each of the years. The request so considered by Westmead Holdings designated person who on considering the record of the period and amounts paid to the assessee signed these Certificates on the same date on the request of the assessee does not lead to the conclusion that these are false and incorrect. It was submitted that they only demonstrate that the assessee requested that these may be issued on assessee s request. These certificates it was submitted are fully supported for each of the years by the bank receipts in terms of the agreement and do not impinge the authenticity of the document in any manner. Attention was invited to page 29-41 which is a note on the residential status of the assessee. Addressing the background it was submitted that the assessee on graduating from a Delhi College joined his family busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is issued by the Lost Property Office in reference to Enquiry 1111427116 dated 24.02.2009 addressed to the assessee recording the fact that in regard to the following property lost on 04.02.2009 there was no record in the Lost Property Office of the said property being handed either to an official of Transport of London; Metropolitan Police or in the said office:- Books/Passport: Organization: Indian High Commission, Name: Sareen, Blue 2 expired passports Books/Document-General: Type: Business Papers, Trust deeds documents from HSBC Bank 19.7. It was submitted by the Ld. AR that the Metropolitan Police function under the Mayor of London has made the Lost Property Office as the designated authority and the following foot note given on the said letter under data protection would address this fact:- Data protection :the data we hold now or in the future will be processed by Transport for London for the purpose of Lost Property administration. It may be passed to law enforcement authorities if it is considered necessary for the prevention and detection of crime and when otherwise legally required. 19.8.It was his submission that in regard to the loss of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he was shareholder were duly intimated. He continued in Employment till 31.12.2004 and thereafter conducted independent business activities. 2. That the period of stay of assessee in India in each of the years since AY 1999- 2000 to AY 2009-10 was less than 182 days as per chart enclosed. 3. That a search u/s 132(1) was conducted upon assessee in India on 12.09.2007 and no incriminating material was found. Prior to the date of search, returns from AY 1999-2000 till 2006-07 were duly filed in status of Non Resident out of which returns for AY 1999-2000 to 2005-06 were accepted u/s 143(1). 4. Notices u/s 153A were issued for AY 2002-03 to 2007-08 and assessee filed returns in status of Non Resident disclosing the same income as declared in Returns u/s 139(1). 5. Assessments have been framed for each of the Asstt. Years 2002-03 to 2009-10 in status on Resident and additions have been made in each of the years as per chart enclosed. The AO acted as under :- (i) Held assessee to be a Resident; (ii) Treating the sums remitted from assessee s foreign bank accounts to bank accounts in India as Taxable Income; (iii) Treated the Gifts made out of Foreign bank accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se definitely much before the date of the search which orders had become final cannot be ignored. For the said purpose, attention was invited to paper book page no-300, 309, 312, 314, 318 322. 19.13.Attention was also invited to Paper Book page No-333 which is correspondence with the Intelligence Unit dated 11.12.2007. Referring to the same it was pointed out that a reading of the letter addressed to the Investing Wing copy at page 334 would show that the assessee had carried out corrections pointed out by the ADI. For the said purpose first part of the letter dated 11.12.2007 page 333 and the last paras of the said letter at page 334 are reproduced for ready-reference:- This is with reference to our hearing at your good self s office, we would like to submit the details of stay in abroad along with copies of Passport of the assessee as required by your good self as evidence that the assessee is a non resident Indian during all the financial years 2000-01 to 2006-07 as he did not stayed 182 days or more in India during any of the financial year. Hence, the assessee is not a resident in India as per the provisions of section 6 of the Income Tax Act, 1961. Relevant portion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee is a non-resident in the year under consideration within the meaning of section 6(1)(c) r.w explanation (b) of the Income Tax Act, 1961. 19.15.Ld. AR carried us through section 6 of the Income Tax Act, 1961 and on the basis of the same submitted that on a co-joint reading of explanation (b) of section 6(1)(c) it would be evident that it has three limbs (a) it is applicable to a citizen of India or a person of Indian origin within the meaning of explanation 2(e) or section 115(c); (b) who being outside India; and (c) comes to visit to India. 19.15.1. In the facts of the present case it was submitted there is no debate that the assessee satisfies the first limb as he is a citizen of India and is also a person of India origin. The assessee and the AO are at loggerheads it was submitted on the second limb i.e. being outside India as the provision encompasses that the benefit is available to a person settled abroad who comes to visit India. 19.15.2. It was submitted that the mere arguments that the assessee has been staying in India and visits UK, UAE etc; and the assessee has investments in India and has relatives including wife, son and daughter and has movable and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the accounts. (g) Initially appellant stayed at hotels till an accommodation was taken on lease at Apartment No. 230, Golden Sand II, Dubai in term of lease Agreement placed on record. (h) Copy of certificate or salary dated 08.12.2009 issued by West Mead Holding Ltd. .., 2004, which are supported by Bank advices .Royal Bank of Canada confirming remittance and corresponding receipts in the accounts. (i) Copy of Resident visa issued by UAE from time to time and currently being valid up to 2013. (j) The appellant has been managing/ conducting business in the names of various Companies abroad namely Fair Bridge Holdings Ltd., Cyprus; Kallister Trading Ltd., Cyprus; Kerswell Consultants Ltd. and Fair Bridge Estate Ltd. (Offshore) and he inter-alia owns a residential house in Dubai wherein the appellant resides. The particulars of these Companies were available publically in the share issue offering of Emaar MGF Ltd .. the residential status of the appellant in terms of Section 6 of the Income Tax Act, i.e. his physical presence in India. I have examined the documents placed on record, .., I have no hesitation in holding that the appellant is settled and residi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttances Refer Page Nos. 603-608 (Volume-3). Reliance placed on case of (i) Russian Technology Pvt Ltd ITA Nos 4932, 4933, 5390, 5391 Dt. 12.4.2013 ITAT Del H Bench (ii) Finlay Corporation Ltd. [2004] 84 TTJ (Del) 788 ; Smt. Sushila Ramaswamy v. ACI(T [2010] 37 SOT 146 ; held that Moneys remitted by Non-Residents whose identity is not in question thru their bank accounts outside India held to be Capital receipts [Para 11.6 pg 22 of Russian Tech.] In view of the assessee being a Non-resident, the CIT(A) has correctly held the amount remitted of ₹ 7,70,71, 792/- from abroad has been correctly excluded as wrongly taxed by the AO. 19.17. Inviting attention the CIT vs Suresh Nanda (2013) 350 ITR 611 of the Delhi High Court which has upheld the order of the ITAT and the judgement of the Kerala High Court in the case of CIT vs Abdul Razzack alongwith the circular 684 of the CBDT it was emphasized that the following conclusions have been arrived at by the ITAT in its order in the case of Suresh Nanda (Copy filed at Annexure H1 to H 9 of the same paper book) which case it was re-emphasized has been upheld by the Jurisdictional High Court. The relevant portion extracted in Annexu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to agree with department that assessee was not visiting India from outside India. There is no restriction for number of days spent abroad. What the law mandates to look at the number of days stayed in India. 8.2 Similar view has been adopted by the Authority of Advance Rulings in the case of Dr. Virindra Kumar Raina (supra). Departmental authorities, except for interpreting the words in their own manner, have not relied on any case law on the issue of section 6(1) (c) and Explanation (b) specifically. Thus no judgment contrary to Hon ble Kerala High Court has been cited by the Revenue. It is a trite law that in income tax proceedings the words shall be given plain and ordinary meaning and interpretation should be resorted only when the meaning is ambiguous. We are unable to see any ambiguity in these provisions. Hon ble Kerala High Court has held that for determining the status as Non-Resident is to be decided in terms of No. of days of stay in India. Thus, the test of residence will be determined on the basis of number of days of stay in India and not by the interpretation adopted by the lower authorities in this case. It has not been disputed by the revenue that the number of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified copies as proof of contents of public documents or part of the public documents of which they purport to be copies of and section 79 of the Indian Evidence Act gives a statutory presumption with respect to the genuineness of the certified copies. Referring to the same it was submitted that the objection posed to reliance placed upon certified copy of the Power of Attorney objected to was not sustained by the Hon ble High Court following the principle laid down by the Apex Court in the case of Kalyan Singh Choti reported in AIR 1990 SC 396. 19.20.Reliance was also placed upon the opinion of Jaswal Johnston LLP London solicitor regarding validity of the procedure followed in the report filed with Lost Property Office of London wherein the said solicitor has opined that based on prevailing law the correct procedure was followed and filing a police report was not required as a black taxi cab comes under the jurisdiction of TFL (Transport for London). The crimes which fall before the London Metropolitan Police it was submitted as per the website are specifically listed and loss has not been defined as a crime. 19.21.The reliance placed upon the decision of the Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DCIT vs Finlay Corporation Ltd. (2004) 84 TTJ 788 (Del.) and Smt. Sushila Ramaswamy vs ACIT [2010] 37 SOT 146. 21. Accordingly it was his prayer that the Cos filed may be allowed and the department s appeals be dismissed. 22. In reply the LD. CIT DR submitted that the facts in the case of Suresh Nanda are entirely different. Referring to the same it was submitted that the said decision would not apply as non-production of the passport was not an issue there and secondly Suresh Nanda was outside India and involved in business abroad. Even otherwise it was contended the decision of the Delhi High Court would not apply as the Hon ble High Court has simply dismissed the Revenue s appeal holding that no question of law arose from the order of the Tribunal. 22.1. It was also his submission that reliance placed on letter dated 10.08.1998 under FERA filed u/s 29 (Assessee s Paper Book page 95) is of no relevance as the residential status for FERA purposes is different from the provisions of the section 6 of the Income Tax Act. 22.2. In regard to the hiring of the apartment it was submission that firstly copy made available is signed by the lessor and at best would throw light ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntemporaneous evidence like air tickets correspondence with Indian High Commission for being issued a fresh passport and other such contemporaneous date as opposed to notarized photocopy of the passport would have been more relevant evidence. 22.9. It was submitted that section 6 apart from being a deeming provision is also a charging section and hence interpretation has to be such whereby charge is not defeated. 23. Accordingly it was submitted that the COs be dismissed and the departmental appeals may be allowed. In the alternative it was his request the issue may be restored in the interests of justice. 24. We have heard the rival submissions and perused the material available on record. It is seen that the oral arguments in the present appeals were spread over on various dates. The oral arguments were further supplemented by written submissions/synopsis etc. which were frequently sought to be modified. In view of the multiplicity of the arguments advanced by the parties before the Bench it would be appropriate to first determine the issues which arise for our consideration in the present appeals and the Cross Objections filed. 24.1. Considering the arguments and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also seen that no attempt in response to letter dated 20.05.2013 of Sh. Siddharth Sareen resulting that he be impleaded as legal heir in the departmental appeal has been attempted to bring the correct legal heirs. The copy of the said letter as per record has been filed in the DRs office as per stamp of the Departmental Representatives Officer affixed thereon dt. 21.05.2013. On the contrary the record shows that the return filed for Late. Sh. Sudhir Sareen by Sh. Siddharth Sareen as legal heir in 2013-14 (copy available at page 19 of CO paper book-2) has been accepted by the AO as would be evident from copy of the assessment order passed u/s 143(3) for 2011-12 after bringing Sh. Siddharth Sareen on record. The said fact supports the conclusion that Sh. Siddharth Sareen has already been taken as the legal heir of the Late Sh. Sudhir Sareen by the AO himself. No effort has been made by the Ld. CIT DR in the pro-longed hearing spread over for almost three months to controvert the claims of the Ld. AR. No efforts have been made as per record to obtain comments from the AO to show that Sh. Siddharth Sareen is not the sole legal heir. Raising of arguments dehors the facts is of no a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument of the Ld. CIT DR that the Co-ordinate Bench did not consider the judgement referred to by the Ld. CIT DR rendered by the Apex Court in the case of Chief Post Master General vs Living Media India Ltd. reported in 348 ITR 7 (SC) in the facts of the present case is of no help. The said decision it is seen has been passed on a consideration of the peculiar facts and circumstances as were available before the Hon ble Apex Court. On considering the said judgement, we are of the view that it does not support the department s objections on facts. In the facts of that case, the appellant was the Government department and for the delay there was no proper explanation offered before the Apex Court. In these peculiar facts the Hon ble Apex Court dismissed the appeal. The argument of the Ld. CIT DR that the decisions by the Co-ordinate Bench in the case of MGF Automobiles Ltd. and Kusum Gupta pronounced on June 2013 and March 2013 respectively have been available in the public domain for quite some time and merely because the assessee was physically ill and was not mentally incapacitated so as to file the COs in time is an argument which we decline to address. Suffice it to say the ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was offered by a Government Department. 26.1. The answer to Issue No-2 accordingly is in the affirmative and the delay of 855 days in filing the Cross objection is condoned. 27. The third issue which falls for our consideration is whether where admittedly no incriminating material was found in the search conducted upon the assessee can the Cross objections of the assessee be allowed. The arguments of the respective parties on facts alongwith reliance placed on the decisions cited in support of their respective claims have been addressed in the earlier part of this order in great detail. Accordingly repetition of the same is refrained from suffice it to say that all the decisions cited have been taken into consideration even if reference specifically in the following paras is not being made to them. In the COs filed the stand of the assessee not disputed by the Revenue has been that the assessment order in each of the years in 2002-03 assessment year to 2005-06 assessment year brings out the common fact in para 10.2 and 10.3 (and para 10.4 in 2004-05 and 2005-06 assessment year) that the additions are made solely on account of the change of status from NRI to resident. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of one Mr.Sanjay Aggarwal, G.M. (Marketing) of Filatex in the facts of that case on the basis of which the additions were made. All these material facts it was submitted are found to be missing in the present proceedings. 27.3. Similarly the decision of the Allahabad High Court in the case of Raj Kumar Arora, it was submitted is on facts which are entirely distinguishable and on the contrary it has been submitted that not only Sh. Siddharth Sareen s own case on facts is available on record but there is also the decision of the Rajasthan High Court in the case of Jai Steel and of the Nagpur Bench of the Mumbai High Court in ACIT vs Murli Agro Products. The following paras in the decision of Murli Agro Products was relied upon:- 10. Thus on a plain reading of Section 153A of the Income-Tax Act, it becomes clear that on initiation of proceedings under Section 153A, it is only the assessment/reassessment proceedings that are pending on the date of conducting search under Section 132 or making requisition under Section 132A of the Act stand abated and not the assessments/reassessments already finalized for those assessment years covered under Section 153A of the Act. By a circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o specifically para 11 of Chetan Das Lachman Das which has been also considered in Sanjay Aggarwal and Atul Barot s case. In the decision rendered by the Allahabad High Court it has been argued the decisions of the Rajasthan High Court and Mumbai High Court in Jai Steel and Murli Agro respectively have not been taken into consideration. Reliance accordingly was placed upon the decision of the Apex Court in the case of Vegetable Products for the proposition that where two views are possible if the views considered in Chetan Das Lachman Das of the Hon ble Delhi High Court as considered in Sanjay Aggarwal s case and Atul Barota amongst others on one side and the decision in Filatex if it is considered to be contrary to the earlier decision notwithstanding the fact that the said decision is fact specific and distinguishiable even then the decisions in favour of the assessee rendered by the Nagpur Bench of the Mumbai High Court in Murli Agro Products and Rajasthan High Court in Jai Steels would mandate that the decision in favour of the assessee be taken. 27.5. The above proposition propounded appears to be acceptable however we by way of abundant caution would deem it appropriate to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see had created a fa ade by aiding and accommodating the assessee by offering him employment in order to hoodwink the department; and lastly the clinching contemporaneous evidence was stated to be missing. 29.3. In the light of the above departmental objections to the evidence relied upon in support of the impugned order considering first the initial departmental objection which was subsequently modified we on considering the unassailed material available on record dismiss the initial departmental objection and hold that the identity of Mr. John Ronald Maccines as a Canadian citizen as beneficial owner of Westmead Holding stands proved. 29.4. Considering the departmental objections as to why the employment was offered to the assessee and the assertions that the assessee had created a fa ade with the help of Mr. John Ronald Maccines who had aided and accommodated the assessee for nefarious reasons we find looking at the evidences, arguments and undisputed facts on record that the departmental objections and reasoning cannot be sustained. The long past history of the asessee not only with Mr. John Ronald Maccines related companies but even other unrelated multi-national compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in India did not inspire any confidence in the claim of being offered a genuine employment. The decision to trust such a person by someone who has seen the late assessee s performance so as to appoint him as a C.E.O at Dubai on a salary in the facts f the present case demonstrates the genuineness of the claim and does not show that the arrangement was a sham. Nothing has been placed in order to assail the expertise, acumen and past performance of the late assessee. On the contrary the Revenue has argued cluelessly on all possible angles based on suspicions without referring to material on record to justify the action of the AO. 29.4.4. The arguments that the salary certificate for different years carry the same dates and are signed in London and being solicited documents should be discarded has been answered by the Ld. AR adequately. It has been submitted that the salary certificates were requested for by the assessee stating that considering the period and the amounts as per record these may be issued for record. As such merely because it is issued on assessee s request it has been submitted it does not by itself show that the contents thereof are not correct. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red and the fresh passport accordingly already stood issued from Dubai Consulate of the Indian High Commission dated 07.11.2006 on the basis of which as an Indian Nonresident the late assessee was staying at London. In these circumstances, the occasion to enter into correspondence with India High Commission at London for issuance of a fresh passport we find does not arise. Nothing in rebuttal to the stated position has been placed on record. 29.5.4. The arguments of the Ld. CIT DR that black taxi cab is being mentioned for the first time in the opinion sought from the London Solicitor is incorrect as in the reply addressed to the department in writing copy available on record the assessee specifically makes a mention of the loss of the briefcase containing expired passport etc. in a taxi in London in Feb. 2009. 29.5.5.Considering also the sequence of events and the cumulative evidences, facts and arguments on record which we shall address specifically considering the objections posed we hold that the claim of loss of the passport on facts is genuine and bonafide. 29.6. Addressing the availability of notarized photocopy of the original passport on record, it is seen as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. AR who has placed on the last date of hearing copy of the Notaries Rules 1956 made by the Central government in exercise of the powers conferred by section 15 of the Notaries Act 1952 highlighting that Rule 10 of the same which lays down the fees payable to a Notary for doing any notarial act under sub rule (l) thereof prescribes the fee for certifying copies of documents as true copies of the original etc. The Rules made under the Act it is seen addresses the departmental doubts. Our attention has also been invited to section 63 of the Indian Evidence Act which defines and illustrates secondary evidence as under:- Secondary evidence:- 63. Secondary evidence means and includes:- (1) certified copies given under the provisions hereinafter contained; (2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a document given by some person who has himself seen it. Illustrations (a) A photograph of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e property of the Central Government. In the light of the above reasoning considering the arguments of the assessee and the fact that although Indian Evidence Act is not strictly applicable to the Income Tax proceedings, but, where the notarized copy of the passport is relied upon in a situation where the original passport admittedly is lost and is stated to have been produced before the ADI; in these circumstances, where the very same information; in regard to period and duration of stay in India; over the years is disclosed by way of filing of returns in due course in the status of NRI; which have been accepted in 143(1) proceedings; and no 143(2) notice have been issued right from 1999-2000 to 2008- 09 assessment years we donot see how the secondary evidence so placed on record and relied upon can be discarded. 29.7.3. The said issue is answered in favour of the assessee not only on the above reasoning but also on the reasoning that in the relevant information duly filed by the assessee over the years, no fault is pointed out by the Revenue when collated with the record of the Revenue. On the contrary relying on the very same facts and figures it has been sought to be argue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n our serious consideration to the arguments advanced to the respective parties and come to the conclusion that the finding arrived at cannot be faulted with. However we shall address this issue in detail later on as before we address the lead order and its applicability to the assessment years wherein the original passport was not available, we are also required to address another overarching objection to the impugned order in all the years namely that on facts Explanation (b) to section 6(1)(c) has incorrectly been held applicable by the CIT(A). 29.9. The incorrect application has been canvassed by the Ld. CIT DR on the ground that in the facts of the present case according to the departmental stand the assessee cannot be said to fall in the category of being outside India as considered in explanation (b) to section 6(1)(c). The said assertion on facts by the Ld. CIT DR is not agreed to by us. The reason for so holding is found addressed from the earlier part of this order where we have addressed elaborately our reasons in holding that the assessee on account of a genuine business entered into Agreement with Mr. John Ronald Maccines and assessee shifted to Dubai in August ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the initial burden is placed on the assessee to prove its case we hold that the initial burden placed on the assessee stands discharged and reliance placed on the judgement of the two Judges Bench in B.K.Dhote s case on facts is correctly made out. 29.11.The issue framed in Serial Number-5 accordingly is decided in assessee s favour. 30. Considering the facts, circumstances, reasoning and discussion in the earlier part of this order where admittedly the stay in India is less then 182 days in each of these two years, the issue framed in serial number (6) also has to be decided in favour of the assessee. It is seen that the only distinguishing fact in 2007-08 and 2008-09 assessment year was that the original passport issued at Dubai on 07.11.2006 by the Indian Consullate at Dubai was produced before the CIT(A) who had remanded the same to the AO. Since facts qua the duration are not rebutted and all other arguments remained the same as in the earlier years, accordingly for similar reasons the departmental appeals are dismissed. 30.1. The detailed reasons for coming to the conclusion that the impugned order for each of the years before us is upheld have been discussed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant previous year at any time, lies upon the department . 31.1. The following finding arrived at by the CIT(A) in para 1.6, is reproduced hereunder for ready-reference:- 1.6 I have considered the facts of the case i.e., the assessment order of the A.O., submissions made by the Ld. Counsel of the Appellant, examined the copies of the returns filed, notarized copy of the Passport, the original Passport from the period 7.11.2006 onwards till date which has also been examined by the A.O. and period of stay as stated by the appellant during such period, which has been found to be correct. I have personally perused the Appraisal Report, wherein it is clearly mentioned that the stay of the appellant in each of the years under appeal is loess than 180 days. It is apparent that the Investigation Unit in post search enquiry examined the original Passport with a view to determine the period of stay of the appellant in India for purposes of determining his residential status and have after critical examination recorded the said finding. In view of the facts available on record, the overwhelming evidence, circumstantial and factual, the findings recorded by the Investigation U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The ld. Counsel in support of his contention that the appellant is permanently settled / residing abroad has relied upon the following :- (a) Copy of Employment Contract dated 01.06.1998 with West Mead Holdings Ltd. effective from 15.08.1998. (b) Copy of Passport No. A 2470845 for the period 26.02.1997 to 08.04.1999 issued at Delhi bearing the 1st Residence Visa of UAE No 2470845 dt. 28.07.1998 entry stamp of Immigration at UAE on 14.08.1998. (c) Copy of application dated 10.08.1998 addressed to Exchange Control Department, Reserve Bank of India seeking their permission u/s 29 of FERA 1973 to retain assets in India after he leaves India for permanent settlement, wherein the appellant informed the Reserve Bank of India of being granted a UAE resident visa bearing no. 2470845 dated 28.07.1998 and as also informing them of the intended date of departure from India with the intention of permanent settlement abroad being 14.08.1998. (d) Copy of letter of Reserve Bank of India dated 08.09.1998 confirming receipt of aforesaid letter dated 10.08.1998 and directing the appellant to inform the change of status to the Bankers, Companies in which appellant was a Director. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is less than 182 days. However, the A.O. has observed in the impugned assessment order that the appellant is primarily settled / residing in India and visits abroad with a limited purpose or intent of recording a finding that the appellant is resident in India and to tax moneys earned abroad and remitted / invested in India. 31.3. It is seen that considering this the CIT(A) came to the following finding that the assessee was settled abroad :- 1.8 I have examined the documents placed on record, contentions of the A.O. in the assessment order and the submissions of the Ld. Counsel supported by the documents submitted. After considering all the facts, I have no hesitation in holding that the appellant is settled and residing abroad and visits India for the purposes of monitoring / managing his investments and being with his family members from time to time. 1.8.1 The A.O. during the course of hearing, before me has reiterated his arguments as stated in the Assessment Order to the effect that the benefit of Explanation (b) is available only for one year, meaning of the word being outside India and has also submitted that by reading Explanation (b) to Section 6 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a period of 60 days or more during any Previous year and 365 days or more during the four preceding previous years, he is a Resident in India in that previous year. (iii) If both the above two conditions are not satisfied, he is a Non- Resident in India in that previous year. 31.5. The CIT(A considering the facts and the following judicial precedent decided the issue in assessee s favour:- (i) ITO vs Dr. M.P.Konan Halli 55 ITD 266 (ii) Sh. Anurag Chaudhary vs CIT (AAR) 839/2009 dated 11.02.2010 (iii) Circular No.684 dated 10.06.1994 (iv) Vijay Mallya vs ACIT 263 ITR 41 (Cal.) (v) V.K.Ratti vs CIT 299 ITR 295 (P H) (vi) Dhruv Choudhrie-Appeal No.90/08-09-CIT(Appeals)-XXIX, New Delhi 31.5.1. Cognizance was taken of the following decisions for the proposition that the circular of CBDT was binding on the AO:- 1. Navnit Lal C. Javeri V/s. K.K.Sen 56 ITR 198 (SC.) 2. Shivakant Jha V/s. UOI (2002) 256 ITR 563 (Del.) 3. Pradip J.Mehta V/s. CIT (2008)300 ITR 231 (SC.)] 4. UCO Bank V/s. CIT 104 Taxman 547 (SC.) 31.5.2. Reliance was placed on the following decisions for the proposition that in the absence of ambiguity in the section there is no sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear his period of stay in India is less than 181 days and as such the appellant is a Non-Resident. This finding is applicable and relevant for each of the Assessment Years from 2002-03 to 2008-09. (iv) The appellant during the course of hearing before the A.O. had also contended that in view of the Double Taxation Agreement between India and the UAE, the income from salary is not taxable in India. He had also argue that the moneys is remitted to India were not out of income earned but of borrowings abroad. However, in view of my specific finding regarding Residential status of the appellant, this issue is not relevant for this year and as such is not being adjudicated. 1.9.2 Thus, in conclusion the appellant succeeds on the first ground of appeal as the status of the appellant is that of a non resident and not resident as the determined by A.O. Accordi9ngly, the finding of the A.O. holding the appellant to be a resident and not a non resident of claimed is deleted. The status of the appellant be taken as Non Resident, as claimed, and the assessment order be modified/amended accordingly. 2.0. The second ground of appeal related to inclusion of the sum of ₹ 7,72,71,972 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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