9911796707
TMI Blog2014 (10) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... lly agreed to by the Ld. AR. Similarly qua the assessee's COs in 2002-03 to 2005-06 assessment years the common stand of the parties was that the arguments advanced for CO-207/Del/2013 in 2002-03 assessment year would address the remaining COs. 3. The hearing in the present appeals took place on various dates from 29.05.2014 to 01.09.2014 and the parties have been heard at length wherein in order to sum up the issues, written submissions sought to be placed on record by the parties were permitted which were repeatedly revised/modified and supplemented right till the last date. 4. The relevant facts of the case as are emerging from the assessment orders common to all the years are that Search & Seizure operations u/s 132 of the Income Tax Act was carried out in the case of the assessee on 12.09.2007. Referring to the facts as discussed for 2008-09 assessment year as the lead order as per the common stand of the parties has been passed by the CIT(A) in the said year and taking note of the fact that in the arguments advanced by the parties focus has been maintained on the said order we deem it appropriate to first address the facts as recorded by the AO in the said year. While doing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t certain belongings on 4.2.2009. The report is not indicative of what all belongings the assessee lost in his visit. Moreover, it is a common practice everywhere , particularly in common law countries to give the details of the passport lost, in the complaint, including the name of the issuing authority, date of issue, expiry date etc. Nothing of that sort was found from the so called report of the Lost Office, London. Thirdly, the assessee contended that the original passport was verified by the Intelligence Wing during the post search enquiry. However, no such finding has been recorded by the intelligence wing in their finding on the residential status of the assessee." 4.2. In view of the above the AO held as under:- "Hence it is held that the assessee has failed to discharge the onus of establishing that he has stayed in India for less than 182 days in assessment years from 1999-2000 to 2008-09. Therefore, he is a 'resident' as per the provision of the Income Tax Act, 1961. 4.3. Against the said conclusion the assessee advanced detailed submissions before the AO which have been reproduced in para 6 to para 6.2 at pages 4-14 of the assessment order. The relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y financial year after his departure in the initial year and can stay in India for a maximum period of 181 days without losing his status of being considered as Non Resident. (v) Thus, in view of above provisions, the residential status of the assessee stands determined here as under: Residential Status for the Assessment Year 1998-99 The assessee was in India for a period or periods aggregating in all for more than 182 days. Thus, he became 'Resident' as per provisions of section 6 (1)(a) of the Income Tax, 1 961. The said fact was clearly highlighted in the returns of income filed for the said assessment year. Residential Status for the Assessment Year 1 999-2000 when he permanently left India for employment 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e number of day's stay of the assessee during the Assessment Year 2000-01 to Assessment year 2008-09 is as under :- Assessment Year Previous Year Days Outside India Days in India Residential Status Remarks 2000-2001 1999- 2000 191 175 Non-Resident (As per section 6(1)(c) read with explanation 'a') Stayed in India for less than 182 days for each Previous 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 mentioned supra, Clause 'a' of Explanation to section 6(1)(c) is applicable for, the year of departure i.e. FY 1998-99 only, whereas Clause 'b ' is intended for the assessee, who being outside Indian comes to India for a visit, so as to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 income of the assessee cannot be taxed India except the Indian income. The opinions are considered and placed on record. 6.2. The assessee has also taken the help of the provisions of DTAA between India and UAE to canvass his case that his income earned outside India is not taxable in India. The entire arguments in this respect have been dealt in the ensuing paragraphs wherein discussions on provisions of DTAA have been made." 4.6. However not convinced with the arguments of the assessee status was determined by the AO as Resident for the following reasons:- 10.1. "The above submission of the assessee was examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 furnish the copies of the bank account where the so called remuneration was received. These advices also indicate that payments to the assessee are being remitted/sent from the bank of the company situated in Canada. If few of the bank remittance advice sent by the banker of M/s Westmead Holdings Limited to assessee's bank is examined closely then regularity of remuneration, which is the most crucial ingredient of employer and employee relationship, is missing. e) Nothing has been brought on record to the effect that the assessee was in employment in UAE and has rendered services at that place. What all activities the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 which do not form the basis of making the addition by the A O. while completing the assessment. 1.3.2. The appellant is an Indian citizen holding an Indian Passport, regularly assessed to tax in India, till A Y. 1998-99 in the status of resident and ordinary resident in India and thereafter filed his returns of income regularly in the status of non-resident. The returns for the A Y. 1999-2000 till date have been filed regularly in status of Non-Resident. The assessments for the AY. 1999-2000 to 2001-02 were completed u/s 143(1) of the Act in the status of Non-Resident and by virtue of limitation have become conclusive and final. Accordingly, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds, 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 189 176 Non- Residential (As per Section 6(1)(c) read with Explanation 'a') Left India on 14/08/1998 for the purpose of employment outside India and with an intention to settle permanently abroad. Stayed in India for less than 182 days for each Previous year continuously having UAE Residency Visa Since 1998. 2000-2001 1999-2000 191 175 2001-2002 2000-2001 188 177 2002-2003 2001-2002 202 163 2003-2004 2002-2003 193 172 2004-2005 2003-2004 198 168 2005-2006 2004-2005 190 175 2006-2007 2005-2006 193 172 2007-2008 2006-2007 188 177 2008-2009 2007-2008 188 177 5.1. Before the CIT(A the arguments advanced and the documents and evidences relied upon before the AO were again addressed and the CIT(A) sought a Remand Report from the AO thereon. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO. were re-iterated before me, namely:- The original Passports detailed as under were duly produced before the Intelligence Authorities and copies notarized on 19.12.2007 were filed during course of proceedings:- * The leaflets / pages in the passport issued on 26.02.2003 valid till 25.02.2013 had been exhausted and accordingly a new booklet was issued by the Authorities on 07.11.2006. * Passport No Z-028671 issued on 7.11.2006 at Dubai. * Passport No Z-1384925 for the period 26.02.2003 to 6.11.2006 issued on 26.02.2003 at Dubai. * Passport No Z-042469 for the period 09.04.1999 to 25.02.2003 issued on 09.04.1999 at Delhi It was submitted that the old passport issued on 09.04.1999 and the renewed passport issued on 26.02.2003, which were marked as cancelled by the Authorities and not useable, were unfortunately lost during the course of appellant's visit to London on 04.02.2009. The appellant filed a report, which is confirmed by the Lost Property Office London, the official designated government authority for this purpose, in terms of letter dated 24.02.2009. It is under these circumstances that the old expired passports in original (except the passport issued on 07.11.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the status being determined as non-resident Indian the remittances made to India from the overseas bank accounts by the assessee to his Indian bank accounts were held to be not taxable. 6. Aggrieved by this the Revenue is in appeal before the Tribunal. 7. On the first date of hearing, it was submitted by the CIT DR, Mr. Ramesh Chandra that let the Ld. AR first argue the COs filed and thereafter he would address the same alongwith the issues arising in the departmental appeals. It was pointed out by the Ld. CIT DR that the Cos filed by the assessee are late and barred by limitation on account of the fact the Registry has pointed to a delay of 855 days in each of them. 8. Ld. AR in the circumstances submitted that the defect of limitation pointed out by the Registry in each of the COs filed pointing a delay of 855 days has been addressed and a condonation of delay petition has been filed alongwith an affidavit of Sh. Siddharth Sareen, the legal heir of the assessee. 8.1. Referring to the same it was submitted that Sh. Sudhir Sareen the late father of Sh. Siddharth Sareen was the permanent resident of Dubai and had always been assessed as Non-Resident Indian since 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imself in his personal appeals of 855 days on identical reasoning had been condoned. Accordingly relying upon the facts, circumstances and precedent it was submitted that the delay may be condoned. 9. The Ld. DR objecting to the submissions advanced on behalf of the assessee submitted that there is nothing on record to show that Sh. Siddharth Sareen was the only legal heir as evidently the Late Mr. Sudhir Sareen was survived by his wife and two daughters apart from Sh. Siddharth Sareen. Further referring to the affidavit filed it was argued that the only claim of the assessee is that the Late Sudhir Sareen was medically not well. It was argued that there is nothing on record to show that he was mentally capacitated. It was vehemently contended that law should not assist a person who is not alert about his legal rights and accordingly the delay should not be condoned. 9.1. Referring to the order of the Co-ordinate Bench, it was his submission that the decision of the Apex Court in Living Media cited before the Bench has not been referred to by the Bench which was relied upon by him and in terms of the clear mandate of the Apex Court the delay should not be condoned. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to his only son thereafter. For ready-reference the relevant extract is reproduced hereunder :- "Both my daughters are married and are well placed in life. I have already given sufficient to both my daughters. My son-in-laws Mr. Shravan Gupta and Mr. Siddharth Gupta are very wealthy in their own right. I have gifted my daughter Mrs. Parul Gupta, 2499 Shares in the Private Limited Company Oriole Exports Pvt. Ltd. Therefore I am not bequeathing anything to my said two daughters Mrs. Parul Gupta W/o Siddharth Gupta and Mrs. Shipla Gupta W/o Mr. Shravan Gupta. "To my wife Smt. Sunita Sareen I bequeath absolutely and forever all the Carpets, painting, pictures, drawings and other household goods, effects and things and all other article of personal, domestic or household use or decoration consumption lying in the premises 101 Greater Kailash, New Delhi including all jewellery / silver utensils / cash and amounts laying in my individual bank accounts and/or as nominee in any of my account. I also bequeath to her absolutely and forever all my quoted shares in listed companies and all my investment in mutual funds in NRO Account with HSBC Securities and Capital Markets (India) Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43(3) that in the return filed for Late Sh. Sudhir Sareen the status of 'non-resident' has been accepted by him. 11.6. Referring further to page 21 which is a copy of letter dated 25.06.2013 addressed to the AO by the Ld. AR pointing the facts that Sh. Sudhir Sareen had expired on 21.02.2013 and as per the deceased's Will executed on 20.07.2010, it was requested that notice may instead be addressed to Sh. Siddharth Sareen who was the legal heir in terms of the Will executed by the late Sh. Sudhir Sareen. The said request it was submitted was acted upon resulting in the order for 2011-12 being passed u/s 143(3). 11.7. Attention was invited to Paper Book page no-24 dated 01.06.2014 addressed by Ms. Sunita Sareen, the surviving wife declaring that her son be considered as legal heir for her late husband Sh. Sudhir Sareen, son of Late Sh. Agyapal Sareen, who expired on 21.02.2013 in Singapore. The contents of the last Will executed by her husband are confirmed by her in the following words, stating that she has given her verbal consent to her son to act, represent, make statement and sign the documents, appoint consultants / legal representatives before any authority, courts, includi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. For the said purpose, attention was invited to the grounds raised in the COs filed by the assessee in each of these four years which are identical except for the difference in the amounts of the remittance from his bank accounts abroad to his Indian bank accounts which is a common fact in each of the years. Apart from this common ground in all the years in 2004-05 and 2005-06 assessment years the distinguishing feature is that the assessee had gifted an amount of Rs. 25 lac and Rs. 6,17,770/- respectively in these two years to his son-in-law/daughter from his Overseas Bank account. It was submitted that if the main plea of the assessee is accepted than this issue becomes academic. 14. Before we proceed to address the specific arguments it would be appropriate to reproduce the grounds raised in CO-207/Del/2013 keeping in mind the common stand of the parties that the grounds in the remaining 3 Cos are identical except for the difference pointed out in 2004-05 and 2005-06 pertaining to gifts to the assessee's son in law:- 1. That on facts and in the circumstances of the case, in the absence of any incriminating evidence or material found during the course of search u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his capital account as NRE income and claimed it as exempt from being taxed in India because he is an NRI. In the event of his residential status determined as resident his entire income becomes taxable in India as per section 5 of the Income Tax Act, 1961. Hence an amount of Rs. 43,589,983/- is added to the income of the assessee for the relevant year." 16. The Ld. CIT DR at the outset submitted that the delay may not be condoned following the precedent as in Siddharth Sareen's case the decision of the Apex Court in Living Media cited before the Bench has not been considered. 16.1. On merit it was his argument that the decisions relied upon by the assessee namely MGF Automobiles and Kusum Gupta were fact specific and not relevant and since there are decisions of High Courts available the same can be discarded. Reliance instead has placed upon (i) SSP Aviation vs DCIT 346 ITR 177; and (ii) Chetan Das Laxman Das 25 Taxmann.com 227(Delhi). Reliance was also placed upon the judgement dated 10.10.2013 K.L.Manhas rendered by the Delhi High Court under RTI Act, 2005 for the proposition that mere prima facie observations of the Court not dealing with the issue on merits doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.4.5 that the original documents were seen by the Investigation Wing is not borne out from the record and infact in the course of the hearings he offered that the Ld. AR may go through the Appraisal Report and point out where such a finding is given. 16.6. Referring to pages 112 to 118 of the paper book it was stated which is the "purported" salary certificate from Westmead Holdings Ltd. Emphasis was laid by the Ld. DR that the last sentence appearing in the copies filed would show that it is stated that the certificate is issued on the request of Mr. Sareen. Emphasis was laid on the fact that the first certificate refers to the period August 1998 to December 1998 has been signed on 08.12.2009 by the designated person for Westmead Holdings Ltd. at London and similarly in each of the years, the certificate is signed on the very same date i.e. on 08.12.2009 for the periods January 1999 to December 1999, going on January 2004 to December 2004. 16.7. It was his submission that similarly Paper Book page 342 would show that in regard to loss of original passport, the letter/reply of lost property office situated at 200, Baker Street, London, NWI 5RZ again brings out the fact that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CIT(A) has curiously relied upon both the clauses of the Explanation to section 6(1)(c) without addressing under which clause of the explanation he has considered that the assessee's case falls under. It was his vehement plea that the burden for establishing its claim that he is a nonresident is on the assessee which has not been discharged. Reliance was placed on the judgement of the Apex Court in the case of Moosa A Mada of 89 ITR 65(SC). 16.12. It was his argument that section 6 is a deeming provision and has to be read literally. Reliance for the said proposition was placed upon the decision of the Apex Court in Bank of Bihar AIR 1976 (SC) 389. 16.13. Addressing the conduct of the assessee it was his submission that all the documents relied upon stated to be contemporaneous documents are "solicited" documents and being self-serving documents, it was requested they should be outrightly rejected. 16.14. It was his submission that the record would show that Mr. Jon Ronald Macinnes a Canadian citizen supposedly having no reasons whatsoever chooses to employ the assessee as his agent in Dubai curiously signs the agreements of employment in London. This fact it was submitted is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on no-2 would show that he has stated that he is a non-resident Indian since 1998 which claim is supported by his income tax returns and copies of passport. The selective reading of documents it was submitted in order to mislead the Bench will not bring out the full and correct facts. Similarly the reading of the panchnama to submit that the passport was not found by the search party from his residence, as it was not recorded in the inventory of the passport it was submitted does not mean that it was not available with the assessee what documents the search party wants to take note of and inventorise cannot be dictated to by the assessee and it was his submission that he would be able to address these points when his turns comes. 18. The Ld. CIT DR contended that in the facts of the present case neither the assessee can be treated to be "outside India' and nor can the word "visit" in explanation (b) to section 6(1)(c) be understood as multiple visits and reliance placed on Sudhir Sareen and Suresh Nanda by the Ld. AR was misplaced; distinguishable on facts and was not applicable. 18.1. Accordingly it was his submission that the CIT(A) has come to a finding based on various shortc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29 of FERA seeking permission from RBI to retain assets in India. On receipt of the permission the Resident Bank Accounts in India were converted to Non-resident accounts as per instructions of RBI and the Companies in which the assessee was a shareholder were also duly intimated this fact. 19.1.5.The Ld. AR submitted that the assessee continued to be in Employment till 31.12.2004 and thereafter conducted the business activities independently. 19.1.6.The period of stay of the 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 which was the statutory requirement. 19.1.7.It was submitted that Search u/s 132(1) was conducted upon the assessee in India on 12.09.2007 and no incriminating material was found which is an admitted position not contested by the department. 19.1.8.It was submitted that prior to the date of the search, returns from AY 1999- 2000 till 2006-07 were duly filed in the status of "Non-Resident" which were accepted by the department. The returns for AY 1999-2000 to 2005-06 were accepted u/s 143(1). Notice u/s 153A were issued for AY 2002-03 to 2007-08 and assessee filed returns again i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paper book it was submitted contained the copy of the Income Tax returns for the assessment year 1999-2000 to 2008-09 assessment year and in the computation of income for assessment year 2002-03 as in the other years, the following note had been written addressing the status of the assessee. These returns it was submitted have been filed in due course over the years much before the date of search. As an illustration, attention was invited to paper Book page 307 which is an acknowledgement of the return filed for 2002-03 assessment year dated 07.08.2002. The search it was emphasized took place on 12.09.2007. For readyreference extract from page 309 addressing the status note given in the returns filed is reproduced hereunder:- 3. "Status of the Assessee The assessee during the Assessment Year 1999-2000 became a Non-Resident in term and in accordance with Section 6 (i) (a) read with explanation (a). The Assessee left India on 14th August 1998 with the intention of permanent settlement in U.A.E. and took up employment there in. The assessee duly complied with the Rules and Regulation under the Foreign exchange Regulation Act and intimated to the Reserve Bank of India of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o-95 which is letter dated 10.08.1998 u/s 29 of the FERA Act addressed to Reserve Bank of India seeking permission to hold in India the assets, accounts and Directorship etc. as Non- Resident mentioning the specific passport held in the capacity of India citizen. Referring to grant of resident Visa on the basis of which the assessee expressed his intention to permanently settle in Dubai for which purposes the assesses expressed he intended to leave India on 14.08.1998 brought to the notice of the said authority that he was a director of 14 companies mentioned therein all give evidence to the intention expressed which was acted upon. Ownership of agricultural lands, stocks and shares and bank accounts, residential houses and residential plots in Delhi etc. was also conveyed and as per law request was made that communication in respect of or in relation to the petition may be addressed to his wife at his G.K. New Delhi address. The said letter it was stated had been acted upon and the assessee left India which is not disputed by the Revenue who have merely argued that the assessee thereafter only visited the countries and did not leave permanently so as to be considered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ltural, floriculture, Oil, petroleum, Fertilizer and Chemical related products all over the world. 2. The First Party duly recognizes the vast expertise and experience of the Second Party to establish, develop and administer such business. The First Party also accolades the work performed by the Second Party related to its business interest in India in past. 3. The First Party has decided to expand its area of operation and multiply their presence by recognizing UAE and its thrust area and therefore, appreciated the Second Party to act in the capacity of Chief Executive Officer in their business venture at UAE. 4. The Second Party undertakes to work for establishing developing and administering the business interest of the First Party in UAE and Middle East. 5. The Second Party shall establish an office and residence in Dubai (UAE).' (emphasis provided) 19.5. The copy of the UAE Residency Visa and related evidence of withdrawals for buying the ticket; immigration; salary certificates etc. it was submitted all cumulatively demonstrates these facts. The arguments of the Ld. CIT DR that the salary certificates filed for each of the years are "solicited documents" hence having no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in the detailed arguments advanced. Reliance was placed on the case of Suresh Nanda stated to be identical on facts and the decisions in Abdul Razzack, Avatar Singh and various other decisions cited. 19.6. Addressing the arguments of the Ld. CIT DR that primary evidence is not available, it was his submission that as per the departmental stand a fire broke out in the Investigation Wing or wherever the documents records are kept by the department and if the departmental record is not available no motives have been ascribed on behalf of the assessee in regard to the loss thereof as to why relevant record which may have been favourbale to the assessee was lost. The loss of documents in fire by the department is not claimed to be not bonafide. In the facts of the present case it was argued ascribing of motives based on no material does not help the Revenue in the loss of expired passports. It was contended that the record shows that a search took place in September 2007. The loss of the passport is after 14 months. The assessment proceedings as per notice issued u/s 143(2) started in June 2009. The assessee lost the expired original passports in February 2009. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per books filed which are necessary to be taken into consideration for deciding the issues. The same is reproduced hereunder:- 19.10.The summary of admitted facts relied upon by the Ld. AR attached as Annexure B-1 brought to our notice by the Ld. AR is reproduced hereunder:- FACTS In the matter of :- ACIT Vs. late Sudhir Sareen Appeal Nos :- ITA Nos 3120 to 3126 For AY's 2002-03 To 2009 - 10- Departmental Appeal Before :- ITAT- Bench "G" New Delhi Summary of admitted Facts of all years :- 1. Assessee an Indian citizen, who expired on 21.02.2013, was regularly filing his returns in India, till AY 1998-99 in Status of Resident. He left India on 14- 0801998 for settlement abroad in Dubai UAE having executed Employment agreement dated 1.06.1998 with West Mead Holdings Ltd UK to be posted in Dubai UAE. He obtained Resident Visa from UAE no. 2470845 dt. 28-07-1998 & entered UAE on 14.8.1998 as evidenced by Stamp on Passport. The Resident Visa continues to be valid till 2013. Thereafter from AY 1999-2000 onwards Returns of Income were filed in status of "Non Resident". Assessee (A) complied with Section 29 of FERA by seeking permission from RBI to retain assets in India vide letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the AO has verified the original passport and confirmed the stay during the 07.11.2006 to 31.03.2008 having been correctly disclosed in the income tax return. Consequently the onus in regard thereto for the period being less than 182 days stands discharged. Referring to the said para it was submitted that the Remand Report was made available to the assessee who has filed re-joinder. It was submitted that the Remand Report also states that notarized copies of old passport were refilled before the AO. Accordingly the arguments of the Ld. CIT DR that in the absence of the original passport which was lost in London on 04.02.2009 which fact is supported by the letter of London Lost Office dated 24.02.2009 in the face of the Remand Report which accepts that the notarized copies of the old passport were filed becomes an unnecessary doubt. It was submitted that the original passport was produced before the Intelligence Wing and the mere fact that it is not recorded in their finding in the facts of the case does not unsettle the settled position in regard to the residential status as contemporaneous evidence by way of returns filed over the years accompanied by necessary evidence recordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable to pay tax on income accrued or arise in India as per section 9 of the Income Tax Act, 1961." (emphasis on the present proceedings) 19.14. The year-wise details alongwith specifying the specific page of the passport addressing the date of arrival and the date of departure and the no. of days stay it was submitted has all been addressed at page 335 to 341 which remain unassailed on record. It was his submission that the conclusion drawn by the CIT(A) at para 1.6 and the doubts addressed by the CIT DR stands adequately addressed by the same. It was re-emphasized that the AO has accepted the correctness of the period of stay in 2008-09 assessment year on the basis of original passport. The assessment year 1999-2000 to 2001-02 it was emphasized stand concluded in the status of NRI. The affidavit filed with the CIT(A) forwarded to the AO is a part of the remand proceedings. In these circumstances the arguments that the assessee has failed to discharge the onus of having stayed in India for less than 182 days in assessment year 1999-2000 to 2008-09 assessment years is not made out. It was also his submission that the arguments of the Ld. CIT DR that the CIT(A) has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been settled abroad permanently. For the said purpose attention was invited to Annexure E-2, E-3 & E-4. These are reproduced for ready-reference:- (a) "Copy of Employment Contract dated 01.06.1998 with West Mead Holdings Ltd. effective. (b) Copy of Passport No. A-2470845 for the period 26.02.1997 to 08.04.1999 issued at Delhi bearing 1st Residence Visa of UAE No. 2470845 dt. 28.07.1998 and entry stamp of immigration at UAE on 14.08.1998. (c) Copy of application dated 10.08.1998 to 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. (e) Copy of letter to Banks in confirmation that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 684 of CBDT. Referring to para 8.1 it was pointed out that it lays down that the basis for determination of residential status can be only number of days which are to be considered when an Indian citizen goes abroad for employment. Accordingly it was his submission that there can be no room to assume that the criteria is business investment and/or family ties in India. 19.16. The specific additions in the respective years for making the addition it was submitted is only on account of change of residential status as is found discussed in each of the assessment orders and is addressed in Annexure E-5 & E-6. It was emphasized that the only reason in para 10.3 of the assessment order for making the additions is that the accepted status of the assessee has been changed contrary to facts and law. Attention was invited to para 2.1 of the CIT(A) wherein reference is made to analysis of source of application of foreign funds since 2002-03 assessment year to 2008-09 assessment year wherein it was brought out that moneys remitted were not wholly out of foreign earning but also included borrowings abroad. The following contentions in regard thereto addressed in Annexure E-5 & E-6 was relied u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Previous Year. g. Citizenship of a country and residential status of the country are two separate concepts. A person may be an Indian national/citizen but may not be a resident in India and vice versa.. h. No. of days of stay in India determines the status. i. Assessee can take any vocation in any of the countries. j. During these years assessee had for more greater business engagements abroad as compared to India. Therefore, it cannot be assumed that he did not come from outside of India. k. The Explanation (b) to section 6, the explanatory notes for this amendment as clarified by CBDT in this behalf also make the No. of days provisions very clear and unambiguous and leaves no room for interpretation. l. Even for the sake of arguments we accept the AO interpretation it leads to absurd result by making practically every non-resident as a resident in India. This does not seem to be the legislative intent behind this amendment as the mischief sought to be redressed by this amendment to reduce the hardship and not to increase the hardship by unsettling what is settled. When the law mandates that an Indian Citizen can go abroad for the purpose of seeking employment or business, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced. It was contended that it is not the case of the Revenue that the secondary evidence relied upon for the years for which original passport was not available consisting of notarized copies was fraudulently obtained. It was emphasized that Notary is a public officer under the Notary Act, 1952 and in the performance of his duty the Notary certifies and authenticate the documents; maintains a record in its Register of the certificates and the documents certified as a true copy of original. Section 63 of the Indian Evidence Act 1872 it was submitted makes a reference to what is admissible evidence. Relying on Banarsi Das Alias Banarsi Lal vs Maman Chand [1991] 0785 (Punjab & Haryana); Jugraj Singh vs Jaswant Singh (Punjab & Haryana) 1967 AIR Punjab 345:1967(2) ILR (Punjab) 402; and K.A.Pradeep vs Branch Manager, Nedungadi Bank Ltd., Manjeri & Others (2007) AIR (Kerala) 269: 2009 (1) CivCC 48 :2007 (4) KLT 57, it was contended that the secondary evidence which is duly notarized is a reliable evidence in the absence of primary evidence and the Courts have had an occasion to consider the said proposition in a plethora of decisions. 19.19.Reliance was also placed upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out some mistakes and which correction were carried out and again relied upon before the ADI who on scrutinizing was satisfied, as no infirmity has been pointed out by him. It was submitted that after scrutiny, discussions and consideration since nothing negative has been mentioned in the Appraisal Report it means that the ADI was satisfied with the claim of the assessee. The secondary evidence in the facts of the present case by way of notarized photocopy it was submitted cannot be discarded for which purpose reliance was placed on J.Yasoda vs K.Sobha Rani copy filed at pages 21-24 of Volume No-6 in appeal Civil 2060 of 2007 dated 19.04.2007 (section 65, 74 & 76). Reliance was also placed upon Pratap Mal Dharewa vs Ganpat Das & Others rendered by the Rajasthan High Court, copy placed at pages 25-31 order dated 04.04.2013 in SBCWP No-1404/2012; Chandra vs M.Thangmathu & Anr. 20. Addressing Ground No-3 of the department's appeal, attention was also invited to ITO vs Dr. M.P.Konanhalli 55 ITD 266 (Ban.) and Russian Technology Pvt. Ltd. in ITA No-4932, 4933, 5390, 5391/Del/2011 for the proposition that if income is already received outside India, the same cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g association with Mr.John Ronald Macinnes since 1998 and reliance by the assessee has been placed upon contract with Rintra Cont which lasted 1993-98 accordingly Mr.John Ronald Macinnes with the aid of his company accommodated the assessee and the contract it was submitted was not genuine. 22.5. The arguments that in 2011-12 assessment year, the AO has accepted the status as NRI it was argued is also of no consequence secondly judicial propriety may have persuaded the AO to hold so. 22.6. Referring to section 6 of the Income Tax Act, 1961, it was emphasized that it refers only to visit and not multiple visits and the expansion of the term by the Circular No-684 of the CBDT is contrary to the legislative intent. 22.7. The claim that the notarized document was filed on the direction of the ADI, it was stated is not borne out from record. The claim that the expired passport was lost in a black cab (taxi) it was argued has come out for the first time in the opinion of the solicitor Jaswal Johnston LLP 20.08.2014. The burden accordingly to prove that the assessee was NRI was not discharged and reliance placed upon B.K.Dhote 66 ITR 547(SC) is misplaced and instead the principle laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng material was found? Issue(5) In case the Cross Objection of the assessee is not allowed, then whether the department appeals are to be allowed on facts where for 2002- 03 to 2006-07 assessment years admittedly original passport was not produced by the assessee, whereas the finding in the impugned order is based on the lead order passed by the CIT(A) in 2008-09 assessment years where original passport was available? Issue(6) whether the departmental appeals in 2007-08 and 2008-09 assessment years can be allowed in the facts of the case? Issue(7) If the answer to issue in issues in Serial No-5 and 6 are in the negative then can the additions made in the years under consideration be sustained? 25. Having framed, the above questions, we now set out to consider the first of these, namely whether the departmental objections are sustainable in regard to filing of the cross-objections by Sh. Siddharth Sareen. On a consideration of the detailed arguments and evidences relied upon by the parties which we have brought out in great detail in the earlier part of this order, we hold that the objections of the Ld. CIT DR on facts are not maintainable. Not only the fact that no effort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er bringing Sh. Siddharth Sareen as legal heir on record by the AO. In view of these facts and evidences the arguments of the Ld. CIT DR dehors facts cannot be accepted. Sh. Siddharth Sareen is accordingly taken as the sole legal heir of the Late Sh. Sudhir Sareen in the absence of any fact or evidence to the contrary placed on record by the Ld. CIT DR. 25.1. Accordingly the first issue is answered in the negative the departmental objections on facts are found to be not sustainable. 26. Addressing the next question posed by us whether on facts the delay of 855 days in filing the cross-objections can be condoned or not, we find on considering the explanation offered, judicial precedent and the arguments of the respective parties on facts that the assessee was prevented by sufficient cause on account of which the delay has occurred. The delay accordingly of 855 days in filing the CO, we hold deserves to be condoned. The arguments of the respective parties and the judicial precedent relied upon have all been taken into consideration. Not only the judicial precedent in the case of Siddharth Sareen as considered by the Co-ordinate Bench in its order dated 11.04.2014 (copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scenario where a family can legitimately argue that it was left in a state of loss, confusion and flux and there is no reason to disbelieve the legal heir that as soon as he became aware after sorting out the formalities that Cross Objections are required to be filed. We find that the arguments of the Ld. CIT DR that Sh. Sudhir Sareen was only physically unwell which did not make him mentally incapacitated as a little out of sync with how families are normally bound by emotions of love, care and consideration. The scenario of a family battling with natural tragedies on account of illness and subsequent demise resulting in a period of grieving, confusion and loss cannot be expected to exhibit a level of alertness towards its financial affairs. To presume to the contrary atleast in the Indian context is a little far-fetched. Accordingly for the reasons given herein above we find ourselves unable to accept the arguments of the Ld. CIT DR. Notwithstanding the fact that the issue is stated to be covered in favour of the assessee by the decision of the Co-ordinate Bench in the case of Sh. Siddharth Sareen himself. The conclusion accordingly to condone the delay is based not only on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions Gunvardhan Vyapar Pvt. Ltd. (copy in the CO Paper Book 2 page 25-35) order dated 16.01.2014 in Sanjay Aggarwal vs DCIT 47 taxmann.com 2010 (Del.); Manoj Narain Aggarwal and V.K.Fiscal Services Pvt. Ltd. at pages 36-61 and 62-89 respectively alongwith decisions of the Hon'ble Rajasthan High Court in the case of Jai Steels (India) vs ACIT (cited supra) and Mumbai High Court in Murli Agro Products Ltd. all these decisions have been taken into consideration. The Ld. CIT DR on the other hand has relied upon SSP Aviation (cited supra); CIT vs Chetan Dass Lachman Dass (cited supra); and Filatex (Delhi High Court) (cited supra) and CIT vs Raj Kumar Arora (Allahabad High Court) (cited supra) amongst others which also have been taken into consideration. 27.2. The decision rendered by the Delhi High Court dated 14.07.2014 in the case of Filatex India Ltd. vs CIT it is stated to be distinguishable by the Ld. AR on facts as it is based on peculiar facts of that case. The facts it is argued are entirely distinguishable as would be evident from para 2 of the said judgement wherein the additions are stated to be based on incriminating material found in the course of the search which was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee, the assessment for the assessment year 1998-99 was finalized on 29.12.2000 and search was conducted thereafter on 3.12.2003. Therefore, in the facts of the present case, initiation of proceedings under Section 153A would not affect the assessment finalized on 29.12.2000. 12. Once it is held that the assessment finalized on 29.12.2000 has attained finality, then the deduction allowed under section 80HHC of the Income Tax Act as well as the loss computed under the assessment dated 29.12.2000 would attain finality. In such a case, the AO while passing the independent assessment order under section 153A read with section 143(3) of the I.T.Act could not have disturbed the assessment/reassessment order which has attained finality, unless the materials gathered in the course of the proceedings under Section 153A of the Income Tax Act establish that the reliefs granted under the finalized assessment/reassessment were contrary to the facts unearthed during the course of 153A proceedings. 27.4. It has been argued that the decision in SSP Aviation relied upon by the Revenue is in the context of section 153C and is not relevant to section 153A as has been considered by va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable. 29.1. In order to address the same it is seen that the assessee has relied upon the following evidences addressed by way of chronological date wise events:- 29.2. The Ld. CIT DR's case on the other hand it is seen has been that firstly the original passport has not been produced in these years; secondly the notarized photocopy of the original passport is self-serving document as it has not as per record been sought by the ADI; thirdly even if it is sought by the ADI it has no evidentiary value; fourthly the CIT(A)'s conclusion in para 1.4.5 in the lead order that the period of stay was verified by the Intelligence Wing of Department is incorrect on facts; fifthly the claim of loss of passport was not genuine and also in support of the claim no evidence of correspondence with the High Commission of India/London has been filed for issuance of fresh passport which would have been necessary had the claim been bonafide; sixthly the salary certificates are "solicited" documents; seventhly the Lost Passport Office letter is also for insurance purposes and as such solicited; further the identity of Sh. John Ronald Macinnes was initially questioned and thereafter when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contents of the agreements. 29.4.2.Similarly the departure of the assessee immediately one day before the signing of the agreement keeping the rationale of the explanation in mind offered by the Ld. AR which is also an accepted fact that Indian time is 5.30 hours ahead of London time also does not lead to any doubt about the authenticity of the agreement. 29.4.3. As observed the subsequent arguments of the Ld. CIT DR when confronted with the documents establishing past history with Mr. John Ronald Maccines and the assessee wherein the Ld. CIT DR changed his stance from objecting to the agreement entered into with an unknown person to an agreement entered into with a known person having past established history of business relations urging that it is an accommodation on the part of Mr. John Ronald Maccines, it is seen is without any basis or evidence. In view of the demonstrated knowledge and experience with the working of the assessee as a consultant with concerns where Mr. John Ronald Maccines was also a director the prudence of business decision to engage such a consultant appears to be a very logical act and decision. Infact we donot see how in the presence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st Property Officer is a "solicited" document for the purposes of insurance and more importantly no police complaint in regard to its loss has been lodged; apart from it contemporaneous evidence of correspondence addressed to the Indian High Commission for issuance of a fresh passport has also not been filed by the assessee. 29.5.2. Giving our consideration to the said objections we find on considering the arguments and the material available on record including the opinion of the Solicitor Mr Jaswal Johnston LLP that the claim of loss of passport in London appears to be bonafide. The opinion of the London Solicitor supports the assessee's claim that the procedure followed in regard to the loss of the passport was the correct prevalent procedure. The argument that the Lost Property Officer is the designated authority for loss of belonging in London traffic, trains or black taxi and the website of the Metropolitan Police who functions under the Mayor of London as per the copy of the website available elaborates what is a crime and for loss of an expired passport the argument that police claim was not required to be lodged supports our conclusion. 29.5.3. The objection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dequately addressed by the Ld. AR who has submitted that if these were not eligible than how the arguments have been advanced by the Revenue that the number of days spent in India are almost half in a year and how the arguments have been advanced addressing the specific number of visits made to India in the respective years. Considering the stand of the parties before the Bench we are of the view that the photocopy of the original expired passport was notarized in response to the oral request of ADI cannot be doubted. The argument of the Ld. CIT DR that the CIT(A) at para 1.4.5 has given a finding that ADI has verified is also an incorrect argument as there is no such finding of the CIT(A) and it merely is a reproduction of the assessee's claim which on facts appears to be correct. On consideration we find that the objections of the Ld. AR that the arguments and the evidences are being advanced and read selectively by the department is taken note of and does to an extent appear to be correct. 29.7. Addressing the next objection of the Ld. CIT DR that the secondary evidence by way of notarized photocopy of the original passport inasmuch as it having no evidentiary value when consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept in cases mentioned hereinafter. Reference has been made to for purposes of the present proceedings to clause (c), (e) & (f) of section 65 of the Indian Evidence Act. These are reproduced hereunder for ready-reference:- "Cases in which secondary evidence relating to documents may be given. 65. Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:- (a)............................................................................ (b)............................................................................ (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d)............................................................................ (e) when the original is a public document within the meaning of section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India, to be given in e evidence; (g)..................................................." 29.7.2. Our attention has also b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessee on 28.07.1998; the letter dated 10.08.1998 addressed to the RBI seeking permission u/s 29 of the FERA Act informing of the assessee's intention to permanently depart to the UAE and the consequent arrangement of the financial affairs in India; arrival at Dubai on 14.08.1998; letter dated 08.09.1998 from RBI regarding change of status and directing the assessee to inform the bankers and the companies in which the assessee was a shareholder; letter dated 25.09.1998 intimating the banks of changed status of the assessee to NRI; salary certificates even though solicited whose authenticity has not been impinged by referring to the remittances in the bank accounts available on record; copy of the lease deed dated 03.03.1999 with M/s Arenco Real Estate which was stated to be relevant by the Ld. CIT DR for only one year and responded to by the Ld. AR that the lease has continually been renewed and the copy of the renewal of lease is available on record and subsequently staying in a house owned by a company in which the late assessee was a Director in Dubai; the returns filed in due course over the years right from 1999-2000 to 2005-06 assessment years which stoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "visit" which means a singular visit and not multiple visits as has been canvassed by the Ld. AR. On considering the relevant provisions and the judicial precedent by way of the order of the Co-ordinate Bench in Suresh Nanda's case which has been upheld by the Hon'ble High Court and others we find no merit in the departmental stand. The Hon'ble High Court it is seen was pleased to hold that no question of law arises and consequently dismissed the departmental appeal. The said decision it is seen adequately addresses the grievance posed by the Revenue. The distinguishing facts pointed out by the Ld. CIT DR that in the facts of that case the assessee was outside India due to business we hold is not a material fact as in the facts of the present case the late assessee was outside India on account of employment subsequently due to his own business. The said distinction would not detract from the applicability of the ratio decidendi that "visit" includes multiple visits as addressed by circular no-684 of the CBDT which is binding on the AO and the decision of Suresh Nanda which has considered the same. Similarly the distinction therein that original passport was available in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ussion and finding of the CIT(A) in 2008-09 assessment years which has been followed in the other years has been extracted from the lead order hereunder and followed by the CIT(A) in the earlier years is upheld by us:- 1.4.6. Further, the Remand Report and submissions of A.O. were forwarded to the appellant who has filed rejoinder on record." 1.5. "The Ld. Counsel, Sh. U.N. Marwah, of the Appellant was emphatic in his assertion that, notwithstanding in this year where the original passport is available and has been verified by the A.O. who has accepted the statement of the appellant with respect to stay in India, there is overwhelming circumstantial evidence in the nature of returns filed prior to search, notarized copies of passports in respect of each of the earlier years upto 7.11.2006, evidence of permanent residence abroad substantiated by Visa Issued by UAE, sanction of RBI, address in the banking accounts, etc. in regard to the status of the Appellant being that of a non resident in each of the years commencing from A.Y. 2002-03 to 2007-08. Besides, the Ld. Counsel contended that the onus is upon the department to establish that the period(s) of stay in India exceed the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect that the appellant does not satisfy the conditions of "being outside India" specified in Explanation (b) for the reason that "Being outside India" indicate that the normal and ordinary place where the appellant stays is outside India. It is for the benefit of person settled abroad coming for a visit to India. His basis of forming the view that appellant is "not outside India" is for the following reasons :- (a) Appellant has been staying in India for the approximately half of the year during every previous year for the last 10-15 years and the balance period he has stayed at different places such as U.K., UAE etc. (b) Appellant is actively involved in business in India and his economic ties are visible that he has invested an amount of nearly Rs. 150 Crores in India. (c) Has relatives settled in India including his wife, son and daughters. (d) Has large investments movable / immovable in India including a residence. (e) Is a Director in various Companies in India. (f) Is trying to take shelter behind the tax provision in order to evade taxes, which is not permissible in law. 1.7 Shri U.N. Marwah, C.A., the learned Counsel of the appellant, has vehemently contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of West Mead Holdings Ltd., through Royal Bank of Canada confirming remittance to the appellant and corresponding receipts in the accounts of appellant. (i) Copy of Resident visa issued by UAE from time to time and currently being valid upto 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 Ld. Counsel argued that merely because the relatives are living in India and the appellant has substantial investments in India, including some of the immovable properties and the Companies were already owned at the time he was a resident of India. Directorships in Indian Companies does not and cannot form a basis of determining the residential status of the appellant, Shri Sudhir Sareen or for recording a finding that the appellant is settled abroad or not. 1.7.1. He impressed that the period of st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the legislature. Thus, he submitted that his order holding that the appellant is a resident of India be upheld." 31.4. However the arguments of the Ld. AO were distinguished on facts and the applicability of the relevant provisions of the Act was submitted should be considered in the following manner :- "In accordance with the provision aforesaid, the Ld. Counsel urged that the residential status based on the physical presence in India is divided into two categories :- (a) The first year when an India citizen goes abroad to take up employment. (b) Thereafter having taken up employment abroad / settled therein comes to India from time to time. In the case of persons falling under category (a) above the residential status is governed by Section 6(1)(c) read with Explanation (a) i.e. if an individual in the first year of departure from India leaves India with the purpose of employment, then the status is to be determined under clause (c) by computing the following :- (a) Been in India for 365 days or more in four years preceding the year of departure OR (b) In India for a period of 182 days or more In case of Individual falling under category (b), the Explanation (b) to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n para 1.3.7 in the impugned order which it is seen is identical to the assessee's claim as put forth before the AO in the respective years the issue was decided on fact and considering the judicial precedent he came to the following conclusion:- 1.9. "I have considered the arguments, submissions of both the A.O. and the Ld. Counsel. It is true that the legislature has been granting the benefit of extended stay to Indian Citizen / PIO's from time to time as a result that the period has been extended from 60 days to 90 days to 150 days and, thereafter, to 181 days with the principal objective of granting more time to stay during each of the frequent visits to India to Indian Citizens / PIO residing abroad to manage their affairs in India. This has been clearly brought out by the various Circulars by the Central Board of Direct Taxes at each relevant time. It is also settled law that the Circulars of the CBDT are binding on the Revenue Officers. Similarly, in case a provision of law is possible of two opinions / interpretation, the interpretations beneficial to the assessee is to be followed. I have also considered the various case laws directly on the subject cited by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not taxable in India in terms of an in accordance with Section 5 of the I.T.Act. Accordingly, the addition made Rs. 7,72,71,972/- is deleted and the impugned assessment order may be amended accordingly." 32. In view of the detailed finding given herein above as a result of which the issues framed in the serial number (5) and (6) have been decided in assessee's favour and the departmental appeals stand dismissed. In view of the same, we find that the issue framed in serial numbers (3) becomes academic. 33. 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. The said action has not been upheld the issue framed in Serial Number (4) accordingly is decided in assessee's favour. 34. Since the additions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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