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TMI Blog2012 (7) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... d export of agricultural produces like raw cashews. 4. The employment of the assessee is in Singapore and the salary is received and taxed under the Singapore's tax laws and therefore, the salary earned by the assessee was always Singapore income and not Indian income. The activities of the assessee as broker/agent in import and export of cashews are also carried out outside the territories of India. The import and export of raw cashews are not made into India or out of India. He is importing from African countries and exporting to other countries. He has no business connection with India. Therefore, the income by way of brokerage and commission earned by the assessee also partook the character of foreign income. The assessee is also a non-resident for the purpose of Indian Income-tax laws. 5. The assessee maintains a NRE account with South Indian Bank of Anna Nagar at Chennai. The correspondent banks of South Indian Bank remitted the brokerage and commission due to the assessee to the above said NRE account in Chennai by way of cheques/demand drafts/TTs. The assessee has not offered such remittances credited in Indian bank account for taxation on the ground that those income acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y bifurcated such remittances under two heads. The first head related to remittances made by way of demand drafts and cheques. The second head related to remittances made to Indian bank account by way of TTs. The Assessing Officer accepted the contention of the assessee that the remittances made to India by way of demand drafts and cheques would be treated as received outside India. Therefore, he held that the remittances made by the assessee to his Indian bank account by way of demand drafts and cheques are not taxable for these impugned assessment years. 9. But the Assessing Officer took a different view in the case of remittances transmitted through TTs. He held that by virtue of the instrument of transfer, i.e. TTs, the amounts have to be held received in India and therefore, such remittances covered by TTs are taxable in India. Accordingly, for the assessment years 2004-05 to 2008-09, he brought to tax the remittances credited in assessee's Indian bank account through the medium of TTs. 10. As far as the assessment year 2009-10 is concerned, the Assessing Officer held that the assessee was a resident and, therefore, his entire income would be taxable in India for the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e remittances credited in assessee's Indian bank account represented the income earned by the assessee outside the Indian territory and received outside India and thereafter remitted to the assessee's Indian bank account. Therefore, he held that for assessment year 2009-10 also, the remittances are not taxable in India. Non indian income of an assessee, who is not ordinarily resident, is not taxable in India as in the case of a non resident. Accordingly, the appeal of the assessee was allowed for assessment year 2009-10 as well. 14. It is against the above orders of the Commissioner of Income-tax (Appeals) that the Revenue has come in appeals before us. 15. We heard Smt. Anupama Shukla, the learned Commissioner of income-tax, appearing for the Revenue and Shri N. Devanathan, the learned counsel along with Shri B.S. Purushottam, Chartered Accountant appearing for the assessee. 16. On going through the facts of the case, we find that there are no disputes on the facts of the case except the true nature of remittances transmitted through the medium of telegraphic transfer. The assessee is living in Singapore. He is a non resident. He is a permanent resident of Singapore. He is empl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee's Indian bank account by TTs in foreign exchange. The cheques and drafts are negotiable instruments facilitating the transfer of funds from one person to another. Telegraphic transfer is a transmission device which helps transactions of funds from one place to another with precision and safety. In the modern digital world at present, almost all transactions of funds all over the world are made by bank transfers. Therefore, that method of transaction of funds by itself does not decide whether the income was received by the assessee in India or not. We have to see the first point of landing of the brokerage and commission transmitted to India through TTs. They are first landed in the accounts of the foreign correspondent banks. They are landed in other countries. The Hon'ble Supreme Court in the case of CIT v. Ogale Glass Works Ltd. (25 ITR 529) has held in a case where the cheques were posted in Delhi, in law, it amounted to payment in Delhi. In the light of that decision, when the funds covered by TTs first landed in the accounts of foreign correspondent banks outside India, it is to be seen that the assessee received his brokerage and commission outside India. It is only a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny business connection and, therefore, there is no need to expand the scope of enquiry. 21. In the facts and circumstances of the case, we uphold the common order of the Commissioner of Income-tax (Appeals) on the issue of taxability of brokerage and commission. 22. Therefore, the appeals filed by the Revenue are liable to be dismissed. 23. Now, we may consider the cross objection filed by the assessee for the assessment year 2009-10. 24. The case of the assessee is that the Commissioner of Income-tax (Appeals) has erred in sustaining the addition of Rs. 18,66,032/- being 25% of the jewellery as unexplained in the hands of the assessee. 25. The question of unexplained jewellery is considered by the Commissioner of Income-tax (Appeals) in paragraphs 23 to 28 in pages 8 to 17 of his order. The Commissioner of Income-tax (Appeals) has accepted that the jewelleries were found and seized from different bed rooms, and prima facie, belonged to different individuals who files the returns in their individual capacity. It is on this ground that he has deleted major portion of the addition to the extent of 75%. 26. The balance 25% of the jewellery value has been confirmed by the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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