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2013 (3) TMI 77 - HC - Income TaxResidential status of the assessee - as per revenue the assessee was a resident of India whereas the Tribunal held assessee to be Non resident of India - Held that:- 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. Therefore, the Tribunal is absolutely right in concluding that the respondent/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. No substantial question of law arises insofar as this aspect of the matter is concerned - in favour of assessee. Unaccounted investments - additions made on the basis of documents allegedly found in the possession of 3rd parties - Held that:- Tribunal has rightly remanded this aspect of the matter in view of the fact that the respondent/assessee had not been granted an opportunity of cross examining the persons from whom the said documents had been allegedly recovered. The matter has been remanded to the assessing officer to examine this issue after giving an opportunity of cross-examination to the respondent/assessee. Payment made to the assessee’s estranged wife - addition deleted by the Tribunal - Held that:- Tribunal purely on an appreciation of facts & on noting that the assessee and his wife Smt Renu Nanda had separated by way of a deed of settlement dated 04.04.1998 and the payments were based thereon deleted the addition as it has not been based on any evidence or incriminating material indicating that any payment had been made outside the books. The Tribunal observed that the sole basis for the assumption on the part of the assessing officer was that there was some unwritten understanding between the assessee and his estranged wife. Thus the purported basis of the addition only a presumption is not acceptable - in favour of assessee. Addition u/s 68 - Cash credit - Held that:- As the Tribunal has correctly decided that the assessee was not a resident in India in the years in question, it is axiomatic that the addition under section 68 would have to be deleted because it was a transfer from the respondent/assessee’s foreign account to the domestic account - in favour of assessee.
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