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TMI Blog2010 (7) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee. Against the order of the Tribunal dated 30-03-2009, assessee went in appeal before the Hon'ble jurisdictional High Court and their Lordships of the Hon'ble High Court in ITA No.1690 of 2009 dated 05th October, 2009 dismissed the appeal. Thereafter, the assessee filed a Review Petition before the Hon'ble High Court delivered their judgment on 18th February, 2010 in RP No.23 of 2010. For the sake of brevity, we reproduce hereunder the Review Order passed by the Hon'ble High Court: "Review Petition is filed by the appellant who filed the Appeal before us contending that the facts based on which the Tribunal decided the case are incorrect inasmuch as he was not a resident in India for the relevant assessment year. We find that this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatus of 'resldent' only under the Wealth-tax Act. Ld. Sr. D.R. relied the order u/s.35 of W.T. Act, dated 27-01-2009. Taking the shelter of the provisions of section 6(1) of the Income-tax Act, relying on the decision of the Supreme Court in the case of Fakir Mohd.(Decd.) by LRS v. Sita Ram (2002) 1 SCC 741 and inviting our attention to para.2.3 on page 23 of Tax Payers information series-22 "Income Tax Guide for Non Residents and Indian Nationals Abroad" issued by the I.T. Department, Directorate of Income-tax, RSP & Pr. Mayur Bhavan, New Delhi, the ld. counsel vehemently argued that the status of the assessee is 'Non-Resident'. Lastly, the ld. counsel submitted that as per the Passport, the assessee was in Dubai for a total of 210 days ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear under consideration, we have no option but to confirm the order of the Assessing Officer by setting aside the order of the first appellate authority. Thus, on this issue Revenue succeeds. 5. The other issue for our consideration in this appeal is with regard to the taxability of Rs.1,61,84,724. The Assessing Officer assessed this amount u/s.68 of the Act, as unexplained deposits. There is no dispute that the amount has come through banking channels that too from Alukkas Jewellery, Dubai. Vide letter dated 6-12-2006, assessee explained that these were his accumulated income at Dubai. According to the Assessing Officer when he informed that his status is to be taken as 'Resident' and as such, the entire amount has to be taxed. At th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tificate from Catholic Syrian Bank certifying that the money was sent to the assessee from the account of Alukkas Jewellery, Dubai, is on record. The amounts were sent on 9-4-2003 and 22-7-2003 by TT from Dubai to the Bank account of the assessee with Catholic Syrian Bank Ltd. Confirmation letter and certificate from Catholic Syrian Bank Ltd. have also been placed at pages 47-50 of the paper book. As such, assessee has explained the source, identity and capacity of the donor for remitting the amounts and also convincing explanation has been furnished regarding the nature and source with supporting evidences and therefore assessment u/s. 68 is incorrect and unwarranted and therefore deserves to be deleted. 7. On the other hand, the ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee and associated with Alukas Jewellery and Shri A.V. Joy has confirmed that he has given the said gifts and Catholic Syrian Bank and confirmed that it was transferred from Dubai from the account of Alukas Jewellery. Thus, the source, identity and capacity of the donor has been established and confirmed. Be that may, the question of application of section 68 does not arise. 9. Section 68 provided s that any cash credit found in the books relating to which assessee offers no explanation about the nature and source thereof or such explanation is unsatisfactory, which credits could be charged to tax as income of the assessee. The principle embodied in section 68 is only a statutory recognition of what was always understood to be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a is associated. This is further supported by the certificate from the concerned bank. Considering these facts, the ld. CIT(Appeals) held that the addition is unwarranted. 11. The ld. counsel took the attempt to distinguish the ratio of the decision of the Hon'ble Supreme Court in the case of CIT vs. P. Mohanakala & Ors. 291 ITR 278 and contended that the explanation offered by the assessee can be rejected by the authorities only if it is found un-acceptable. Here, in the case present before us, the ingredients such as genuineness of the transaction, capacity of the donor, identity and relationship of the donor were sufficiently proved and the Revenue doubted the explanation only on the footing that the assessee earlier stated that the mon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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