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2016 (4) TMI 243 - ITAT MUMBAI

2016 (4) TMI 243 - ITAT MUMBAI - TMI - Addition on account of living and life style expenses - Held that:- The TIs dated 16/7/2000 and 23/7/2000 on UBS AG, Zurich have been issued from Dubai; from Hotel Intercontinental, Dubai, stated as his camp office. Then, the assessee has issued a notarized statement on 30.06.2003 at London, wherein he admits to have visited Switzerland in February, 2001. The same would entail, apart from travel expenditure, boarding and lodging costs, far in excess of that .....

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r such expenditure booked in accounts

Non-grant of telescoping benefit - Held that:- The plea could in fact be available only where the assessee accepts the addition, claiming a double addition, leading to a double jeopardy. Be that as it may, we have already restored the assessment on some grounds, while confirming some additions. The principles of telescoping are well laid out by the Hon’ble Apex Court, as in the case of Anantharam Veerasinghaiah & Co. v. CIT [1980 (4) TMI 2 - SUPRE .....

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ile taking others on the basis of actual date (of investment, expenditure, etc.), also accounting for the payment of tax, again, on defined dates

Addition as undisclosed income - Held that:- As payment (USD 20 million) (200 lacs) was made, which would require being verified, it implies that the down payment of CHF 2.5 lacs to be made by 03.8.2001, stood also made, at least in all probability. It is in fact difficult to believe that such a deal/agreement was finalised and, further, in .....

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factual – could under the circumstances be issued at this stage, and the matter clearly requires being remanded back for the purpose. The matter shall, accordingly, stand to be set aside to the file of the A.O., who shall re-adjudicate afresh.

Addition on account of alleged undisclosed expenditure - Held that:- Incurring expenditure of the like stated in the invoice, viz. hotel, telephone, travel, etc., besides being only understandable, is thus corroborative. That the amounts should .....

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- Held that:-Materials, apart from that found from the seized laptop, were also seized, which are corroborative, independently establishing their veracity. That is, the truth of the documents gets established even independent of the provision of s. 292-C of the Act. The statement/s by PA, made on oath, would be admissible in evidence u/s.132(4) or, as the case may be, s. 131 of the Act. The assessee in fact has not denied or rebutted the statement/s; rather, further presses on PA’s statement/s .....

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is shown by the assessee that the TIs for USD 200M are in pursuance of the Agreement dated 07/8/2001, the source thereof as being profits earned – to that or whatever extent, in the past, shall require being shown or reasonably proved, for it to be accepted. The payment as listed at Sr. No. 6 of the table, being in relation to an Agreement dated 18.7.2001, due to be paid, has been also noted by us for A.Y. 2002-03 (vide para 22(b) of this order). Without doubt, the same being in respect of a sin .....

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n view of the undisputed facts stated above, not to confirm the addition. We decide accordingly.

Investment in a Mercedes car - Held that:- As regards the payment per EMIs, registration and insurance charges, falling during the year, the assessee has produced a cash statement, which has been disregarded for want of both, authenticity and adequacy. When separate addition is being made by the Revenue for household expenses, being part of the living expenses, which should also include th .....

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ourse, as increased by the registration and insurance cost, if any, paid during the year. Under the circumstances, we only consider it fit and proper to restore the matter back to the file of the assessing authority to adjudicate afresh.

Addition on saving account balance - Held that:- Apart from merely stating that the ld. CIT(A) had erred, no definite case has been made out before us. The same, even otherwise; the matter being factual, would be of little consequence in the absence o .....

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e into account the said cash deposits, including ₹ 3 lacs on 31.3.2004, while reckoning the availability of finance for other purposes with the assessee. We decide accordingly.

Unexplained deposit/investment by way of repayment of bank loan - Held that:- The loan under reference is a housing loan in the name of RHAK, advanced on 13.3.2004. The repayment during the year has been confirmed by the ld. CIT(A) at ₹ 1.35 lacs, as against ₹ 1.20 lacs, as contended by the as .....

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Revenue. Why, the notarized statement dated 30.06.2003 supra (Ann. C), itself contains details of the assessee’s relationship with UBS, with account opened as far back as in 1982, with USD 5M, as also details of transfer of huge funds. The assessee’s stand of complete denial is only toward stalling the process of law, which continues even before us. The same is clearly aimed at providing no clue whatsoever to the Revenue as to how he, at best only a horse trainer in India, had access to such su .....

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issions (WS-5) challenges the valuation, without bringing any material on record. So, however, the detail of the nine horses purchased, reveals one horse ‘Bu Attifel’ to be purchased on 19.8.2005. The said date falls outside the relevant previous year. Accordingly, the addition is confirmed at ₹ 8 lacs Disallowance of loss on horse betting - Held that:- The Revenue has denied the claim of the impugned loss in view of it being unevidenced. The assessee’s alluding to section 74A is thus of .....

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nditure was incurred by someone else, which he now claims as by KT. Merely stating so is of no consequence. We find no reason not to confirm the addition.

Addition on cancellation deed - Held that:- The cancellation deed is in respect of lease deed dated 11.4.2005. However, the question is of time. It cannot, on the basis of the material on record, be said that it was during the current year. The Revenue has also not questioned the assessee on this aspect, for us to draw any adverse .....

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arified that the deemed income on account of said expenses can be set off only against amount shown or taken as utilised, in accounts or otherwise, toward such expenses. The set off of loss is accordingly allowed. We may, before parting, clarify that the income from horse betting, assessable u/s. 56, is a separate and distinct activity, so that our decision shall not in any manner, impact our decision qua Ground 11 for A.Y. 2005-06.

Undisclosed jewellery - Held that:- Firstly, that th .....

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being considered toward other applications. This is further subject to the cash availability being properly explained. The AO shall verify the same, clearly recording his findings, upon allowing the assessee an opportunity to state his case in the matter. Subject to foregoing, we confirm the assessment, and decide accordingly.

Unexplained payment - Held that:- As apparent from the document, to which s. 292-C applies, the same is in respect of an investment for ₹ 12.07 lacs, par .....

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plus the EMIs falling due for payment and/or paid during the year. The assessee furnishing no details, it is reasonable to presume 12 EMIs during the year, i.e., ₹ 1,75,500/-. The addition is accordingly restricted to ₹ 7,82,500 (i.e., 6,07,000 + 1,75,500), and the assessee gets part relief.

Unexplained investment by way of payment of membership fee of RWITC - Held that:- Surely, if cash payment has also been accounted for in books, as claimed, even this sum may not stand .....

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g duly accounted for and, thus, explained, and, is accordingly restored to the file of the AO for fresh determination in accordance with law, issuing definite findings. We decide accordingly.

Addition toward unexplained cash deposits with ABN Amro Bank - Held that:- Cash deposits for a total of ₹ 52.74 lacs in the assessee’s savings bank account (# 949548) therewith, which had a balance of ₹ 52 lacs as on 05.1.2007, were found (from f.y. 2004-05 to 2006-07) and, according .....

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confirmed in principle, though the assessee can show that it results in a double addition, which aspect, where so claimed, the A.O. is obliged to verify, and satisfy himself that there is no double addition.

Payment of membership fee of ‘Le Royale Residency Club’ - Held that:- We find little merit in the assessee’s case. The explanation, now furnished, firstly confirms the transaction. Two, there is nothing on record to establish the stated source (loans), in terms of identity, capaci .....

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ming the source as loans raised by him. Clearly, therefore, there is no case for double addition/telescoping nor any stand in its respect taken or case made out, either before the Revenue or before us. The assessee fails.

Unexplained expenditure on clothing - Held that:- We, accordingly, only consider it proper that the matter is restored back to the file of the A.O. We may clarify that where the inference of purchase or payment toward the subject property is manifest from the documen .....

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uring the relevant year. The addition, thus, is directed to be restricted to the extent afore-stated.

Unexplained expenditure toward cost of one canon camera and speaker - Held that:- The assessee’s case is general, stating of the evidence with the Revenue as being not conclusive. We find the argument untenable. The document is speaking, in respect of purchase of electronic items of common day use. It is nobody’s case that the camera cannot or had not been purchased. Further, what exp .....

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cs have however already been brought to tax for A.Y. 2000-01, and confirmed by us. We observe no valuation difference qua those watches, stated separately in the reconciliation statement. We, accordingly, confirm the addition for the balance ₹ 8.97 lacs (19.97-11.00), and the assessee gets part relief.

Addition toward the cost of air travel by the assessee during the year to different foreign locations - Held that:- All that was required in that case was for the assessee to exhi .....

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tes and visa period, listed in the assessment order, is reasonable. We decide accordingly. - ITA No. 4156 to 4162/M/2010 - Dated:- 29-2-2016 - SHRI D. MANMOHAN, VP AND SHRI SANJAY ARORA, AM For The Appellant : None (written submissions) For The Respondent : Shri Girish Dave and Ms.Kadambari Dave ORDER Per Sanjay Arora, A. M.: Vide his instant Appeals, the Assessee agitates separate orders by the Commissioner of Income Tax (Appeals)-36, Mumbai ('CIT(A)') for assessment years (A.Ys.) 2001- .....

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(of HSA Advocates) are on record. No adjournment application has also been made. In fact, despite several attempts, no service of notice of hearing could be affected on the assessee. Under the circumstances, the matters being pending for long, the hearing was proceeded with ex parte qua the assessee, so as to dispose the appeals after hearing the party before us. However, as subsequently some clarifications were required, the appeals (along with the connected matters) were posted for 17.2.2016. .....

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es on a day to day basis. Time was sought for filing written submissions, which was granted. Written submissions were accordingly filed on 22.2.2016 (copy on record), with the copy to the other side. 3.1 Written submissions, separately for each year in appeal, filed along with the application for admission of additional evidence dated 10.12.2013, are not signed by the assessee or by his Advocate on his behalf. The same are stated to be presented by the assessee through his Advocates (HSA Advocat .....

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r admission of additional evidence under Rule 29 of the Rules (containing 79 pages), which is a combined one for assessment years 2001-02 to 2007-08. The same is accompanied by an Affidavit dated 10.12.2013, avering that the accompanying documents, sought to be admitted, are true and correct to the best of his knowledge and belief. The assessee, per his said application, prays for the admission of the following documents, as additional evidence, stating the same to have come in his possession in .....

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onal Bank along with the Deloitte Report (dated 29/10/2007); d) Copy of letter dated 28.12.2007 and letter dated 29.02.2008 from UBS AG to ED No.1; e) Letter by UBS AG dated 8.12.2006 purportedly confirming that the Applicant has balance of USD 8 billion in his account; f) RBI notification notifying UBS AG as a scheduled bank; g) Extracts of the White Paper on Black Money published in May 2012; and h) Newspaper reports on RBI allowing UBS to operate in India. As a prelude, it is submitted that t .....

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tax Department. In pursuance to ECIR, the ED approached the designated court u/s.57 of PMLA, seeking issuance of Letter Rogatory (LR) to various countries, being USA, UK, UAE, Singapore, Hongkong, Switzerland for gathering information regarding the alleged financial transactions by the applicant. The Hon ble Court issued LRs addressed to the competent authorities of the said countries. The Embassy of India at Berne, Swizerland vide a Note Verbale dated 12.1.2007 communicated the LR to the compet .....

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cation, it is explained that the UBS AG, Zurich confirms the assessee to have a limited banking relationship with HAK (assessee). The ld. Departmental Representative (DR) would, on this being put across to him, object, stating that the same cannot be admitted in-as-much as the documents are not notarized or apostilled. Both India and Switzerland are signatories to the Hague Convention, placing on record the Apostille Convention. Banking industry in Switzerland, it needs to be appreciated, he con .....

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admission of additional evidence dated 01.6.2015, which is the combined one for all the appeals of the group, i.e., the assessee, his wife (Rheema Hassan Ali Khan), Syed Ahmed Abbas Naqvi, Kashinath Tapuriah, Chandrika Tapuriah and R.M. Investment & Trading Co. P. Ltd. It is stated therein that in the course of post search enquiry, Enforcement Directorate (ED) provided a copy of a notarized statement dated 30.6.2003 of HAK confirming that he had an account in UBS, Singapore opened in 1982 wi .....

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. In response, Swiss Authority vide letter dated 18.12.2013 confirmed the veracity of the documents gathered during the post assessment proceedings from the UBS AG. The Switzerland Authority has certified that out of 404 pages, 403 pages (containing bank account statement of HAK) are true, except one page incorporating transaction dated 08.12.2006 of deposit of 8 billion dollars, which was forged. The details of the documents prayed for admission by way of additional evidence, are as under: S. N .....

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an evidence, but an application in its respect. 3.3 In our view, we shall be required to, and would accordingly, discuss the admissibility, in seriatim, of each of the documents prayed to be admitted by way of additional evidence. So, however, before we proceed to do so, it may be relevant to discuss the general considerations that have a bearing in the matter as well as the Revenue s objections, which are again not document specific, but on a broad, general basis. As regards the objection of th .....

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mpanying report by Deloitte AG, Zurich, are marked as confidential . The question as to how the assessee obtained the same does arise. It, in fact, clearly proves the assessee s connections not only in India but even abroad; he being able to access confidential communication between UBS AG and the Swiss National Bank, as well as the accompanying report by an independent auditor, made available directly to the bank for its purposes. But, then, should we allow that consideration to weigh when an i .....

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y thereof cannot be doubted, or the same insisted for being subject to the regular verification procedure and, in any case, could be got verified from the concerned Department, which (procedure) shall also establish the veracity (of the contents) of the document/s. Rule 29 of the Income-tax (Appellate Tribunal) Rules, 1963, which reads as under, is a provision regarding production of additional evidence before the Tribunal: 29. Production of additional evidence before the Tribunal. The parties t .....

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for reasons to be recorded, may allow such document to be produced or witness to be examined or affidavit to be filed or may allow such evidence to be adduced. The rule places a total ban on the parties to the appeal to produce additional evidence, either oral or documentary, before the tribunal. But the tribunal is vested with a judicial discretion to allow the production of the additional evidence in the following circumstances: i. if the tribunal requires any documents to be produced or any w .....

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affidavit to be filed or may allow such evidence to be adduced. The rule does not thus enable an assessee or the Department to tender fresh evidence to support a new point or to make out a new case. Additions in the present case are based on the information received from ED as well as that found and seized upon search dated 05.1.2007 at the residences of the assessee and others, including Kashinath Tapuriah, on the ground of the same being not satisfactorily explained. The Revenue, acting throu .....

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assessee, the two being of the same genre, supported by the same reasons. So, however, the terms of rule 29 would have to be regarded and satisfied, i.e., quite apart from the validity of the Revenue s objection, and which (rule) itself obliges the tribunal to record reasons for such admission or, as the case may be, production or examination. The tribunal s power to admit additional evidence is strictly limited. The Hon'ble jurisdictional High Court in Velji Deoraj & Co. vs. CIT [1968] .....

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he initial stage and had not been produced by him. This, it was further explained, is as the rule is not to allow a litigant, who has been unsuccessful in the lower courts, to patch up the weak parts of his case and fill up the omissions in the court of law. The admission of additional evidence by the tribunal is thus dependent on the tribunal requiring it for the purpose of pronouncing its judgment or for the purpose of curing some inherent lacuna which it has itself discovered (refer pgs. 713- .....

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tial cause. There may well be cases where even though the Court finds that it is able to pronounce the judgment on the state of record as it is, so that it cannot strictly be said that it requires additional evidence to enable it to pronounce the judgment, it still considers that in the interest of justice something which remains obscure should be filled up, so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for any other .....

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so imperfectly that the appellate court cannot pass a satisfactory judgment (refer pg. 168 of the reports). This view stands also expressed by the Hon ble jurisdictional HC in Suhasinibai Goenka vs. CIT [1995] 216 ITR 518, 521-22 (Bom), stating that r. 29 allows the exercise of the power for production of additional evidence for a fair and just disposal of the appeal. Surely, the result of the enquiries initiated by GOI in the matter or even that subsequently need to be taken on record in arriv .....

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s which were available at the time of assessment, so that they ought to have been considered or taken into account by the Revenue, providing, in all fairness, a copy thereof to the assessee. The assessee, whatever his conduct in the proceedings before the Revenue may have been, could not possibly have access thereto. A decision, after all, is only to be taken on the basis of the facts established or inferable from the material on record. We are, accordingly, prima facie, inclined to admit the ma .....

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fascimile dated 15.01.2007, purportedly by the Swiss Federal Government in the Department of Justice to the Indian Embassy, Berne. The same is admitted. Even though the designation of the person, whose name is specified at the place marked for signature, which is generally mandatory in official communication, is not stated. This may perhaps be due to the fact of the communication being by fax. c) This is the copy of the report dated 30.10.2007, marked confidential , by UBS AG to Swiss National .....

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dated 29.10.2007 by Deloitte AG, which is in fact an accompaniment to the report dated 30.10.2007 by UBS AG, the same is an unsigned document. The same is not admitted. The gist of the same though gets included in the UBS AG report dated 30.10.2007, a fact admitted to by the assessee as well (per his written submissions). d) Copy of letter dated 28.12.2007 and letter dated 29.02.2008 from UBS AG to ED No.1. The said letters are unsigned documents and, accordingly, have little evidentiary value. .....

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ct part of the record in-as-much as they form the basis of the corresponding addition for A.Y. 2007-08. f to h) These documents, in the public domain, have no direct bearing on the assessment of the relevant incomes. Accordingly, the same are not liable for admission, so that admission thereof is rejected. A document, even if not apostilled, could be, for the reasons stated, admitted. However, an unsigned document has no claim to legitimacy or to being genuine. The documents under reference, it .....

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cuments which have been found true, as are relevant, form part of the assessee s application. Our decision and/or specific comment/s, if any, qua each document, is as under: a) Copy of letter received from FT & TR, CBDT, dated 26.12.2013, along with its enclosures. The same is admitted. b) Copy of letter of Directorate of Enforcement dated 15.11.2010 along with its enclosures. The same is admitted. c) Copy of letter dated 24.4.2008 of CIT, Central-1, Mumbai, to DCIT, Central Circle-2, forwar .....

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the same raise fundamental issues. Vide Ground 1 (for all the years), the assessee impugns the assessment/s as void ab initio in-as-much as there was no service of notice under section 143 (2) within the stipulated period of 12 months from the end of the month in which the returns of income in response to notices under section 153 A were filed. In this regard, the ld. Departmental Representative (DR) would, at the outset, draw our attention to Annexures 1, 2 to the assessment order for all the .....

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ears the signature of Rheema Hassan Ali Khan (RHAK), the assessee s wife, who accepts the same for on his behalf, even as clearly indicated therein. Though the date of receipt is not mentioned by the recipient, the same can only be presumed to be in the normal course of its business by the postal department when the registered post (the notices dated 04.10.2007 being conveyed through speed post), is not returned unserved, as in the instant case, which is also the presumption in law, with the ret .....

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ng the noting, were obtained and placed on record. The assessee s claim is accordingly without merit; rather, stands disproved. The assessee s claim is even otherwise legally sustainable in-as-much as notice u/s.143(2) is not a prerequisite for framing an assessment u/s. 153A, which provision itself confers jurisdiction to frame the assessment of the total income for each of the relevant years. Notice u/s. 143(2), clearly procedural, was considered by the Hon ble Apex Court as mandatory in CIT v .....

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non prejudice grounds, would accordingly stand to be taken up. Ground No.2 alleges non-grant of reasonable opportunity by the Assessing Officer (A.O.) while framing the assessment, so that there had been violation of the principle of natural justice, vitiating the assessment/s, which aspect has not been appreciated by the ld. CIT(A). The ld. CIT(A), before whom, again, this aspect was raised, has discussed this at para 10 of the impugned order, observing the A.O. to have allowed sufficient oppor .....

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arious opportunities afforded by the A.O. to the assessee, as well as of being provided with all the materials in his possession, including the incriminating material seized from the residence of Shri Kashinath Tapuriah (KT), a close associate of the assessee. The assessee has been at each stage duly confronted with the materials and/or evidences; the A.O. issuing a series of questionnaires, viz. 05.3.2008, 17.3.2008, 29.4.2008, 24.11.2008, 26.11.2008 and two comprehensive show cause notices, i. .....

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urnished replies vide his letters dated 19.11.2008, 01.12.2008, 10.12.2008 and 26.12.2008, the last being, as also noted by the ld. CIT(A), while being in jail. In fact, prior thereto, he had attended personally along with his counsel, Shri Sunil Shinde, on 12.11.2008, and was served all notices issued up to then. Rather, if time was an issue, the assessee, whose case remains essentially one of denial, could have furnished substantive replies even before the first appellate authority. The assess .....

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94 (DPB pgs. 34, 37 for A.Y. 2000-01). The assessee was, accordingly, show caused in the matter on 29.4.2008, enclosing along with the copy of account as on 13.03.2001. No explanation in its respect was, however, received. The assessee had, as per the letter dated 17.09.2001, earned commission and consulting fees from these companies (as their Chairman) during the period 01.1.1985 to 31.12.1989, proving his close nexus therewith. The amount was accordingly added. In appeal, the assessee alleged .....

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presumption is, in any case, rebuttable, which depends on the nature of evidence, so that in a given case mere denial may discharge the onus, i.e., depending on the facts of the case (refer para 12 of the impugned order - the assessee s submissions, which are common for Grounds 10 to 15 before the ld. CIT(A), with that under reference being Gd. 10). The addition stood considered vide para 13 (pgs. 24-31) of the impugned order. No evidence had been relied upon without the relevant document/s bein .....

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t the first appellate stage. Qua the assessee s grievance with regard to non cross-examination, it was clarified by the ld. CIT(A) that the documents were not of a third party, but belonged to the assessee himself, which are to be regarded as true and genuine. Proper opportunity was in fact provided to the assessee, duly confronting him with all the materials being relied upon by the A.O. The case law relied upon by the assessee was distinguished on facts by the ld. CIT(A), also stating that sec .....

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e per his written submissions claims that the addition in his case stands made presuming a close nexus between him and the stated companies. Again, there was no evidence that the amount had been transferred to or received by him. In fact, KT had during the course of his statement before the investigation authorities submitted that Payson Ltd. was never functional, and had no business dealings. The ld. DR relied on the orders by the Revenue authorities. 8. We have heard the party before us, and p .....

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to funnel income offshore, for tax considerations. The charter and the certificate of incorporation of Autumn Holdings Ltd. form part of the Departments paper-book (DPB) (DPB pages 46-49, 38/AY 2000-01). The Director s resolution/s dated 26.02.2001 (of the said company) (at DPB pgs. 30-31) constitute any two of the three, i.e., Bjorn Allan Andersson, Hassan Ali Khan and Kashinath Tapuria, acting together, as true and lawful attorneys of the company. DPB pg. 32 is a notarial certificate dated 14. .....

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being the assessee s companies. The said agreement, being of prime relevance, is enclosed as a part of this order (as Ann. A). The assessee has also not denied the statement of account as at 13.3.2001, or of its reflecting the profit for the year. The assessee seeks to impugn the inference of a close nexus between the said companies and himself, which is in fact self-evident from the facts eminent from the record; he having, rather, received substantial sums by way of income there-from in the pa .....

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uch as income would stand to be taxed either on accrual or receipt basis, would also be therefore of no moment. The money may have been earned abroad, but being a resident of India for the relevant year, the same would stand to be taxed in his hands. Rather, it is for the assessee to explain the nature of the business activities undertaken by/in the said companies, which it seems have business/es also at Dubai, where the assessee was camping during the relevant year, as his letter dated 16.7.200 .....

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have reviewed the available documents and other relevant statements in connection with the commission income and consultancy fees earned by you being the chairman of M/s. Payson Co. Ltd., Dubai and Autumn Holdings Ltd. Dubai during the period from 1st January, 1985 to 31st December, 1989, in which you have sole invested interest. On the basis of the said documents, the information and explanation furnished and relying on the representations made, we have summarized the statement of your commissi .....

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ou. [emphasis, ours] The same is in fact prepared by the Auditors only at the assessee s instance, and forwarded to one, Mr. Grossman - who (Markus Grossman, as the UBS report dated 30/10/2007 clarifies, is the assessee s relationship manager - para 3.2/pg. 2 of the report) vide fax dated 18.9.2001 (refer: DPB/pgs. 50-51 of DPB for A.Y. 2000- 01). On what basis, then, one wonders, the asseessee, assails the inference of either a nexus with these companies or having earned income there-from. Rath .....

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e said companies. The said period, it is to be noted, falls within the period 1983 to 1990, mentioned in the Agreement dated 07.8.2001 (Annexure A) found during search, separately from the residences of the assessee and KT. The UBS AG report dated 30.10.2007, since admitted, also states that UBS was targeted by Mr. Khan from (year) 1987 to 2001 (refer para 1 of the report), indicating his activities abroad dating back to the 1980s, and the corresponding need to establish banking relationship, wh .....

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he earnings of the assessee there-from, at least in its entirety, as inferred by the Revenue. The bank particulars, i.e., to which the amount (DHS 151, 197.94) is to be transferred, is also mentioned therein. To whom does this bank account belong? The amounts are in respect of different matters, identified by number and brief description, for which invoices (number and date specified) have been raised. The statement also includes fees as well as costs which are yet to be billed, i.e., as on 13.3 .....

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a. True, where the assessee does not lead the best evidence in his possession, which could throw light on the issue in controversy, and withholds it, the court may draw an adverse inference (Section 114, Illustration (g), of the Evidence Act, 1872), even as clarified in, inter alia, CIT v. Sanjay Jain [2015] 230 Taxman 550 (Cal). At the same time, however, the inference could only be as arising from the material in the possession of the Revenue. Who has drawn this statement or the invoices noted .....

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money received, toward which bank account particulars are also specified? The assessee has maintained complete passivity in the instant proceedings, refusing to divulge any information. The assessee s name is conspicuous by it s absence in the document, so that the only link with the assessee could be the bank account specified, as well as the consultancy fees received, similarly, in the past. Also relevant would be the place, circumstances, and the proceedings under which the document was recov .....

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48 ITR 376, 403 (Bom); Tarajan Tea Co. (P.) Ltd. vs. CIT [1994] 205 ITR 45 (Gau)), to cite few. Under the circumstances, we only consider it proper to restore the matter back to the file of the assessing authority for adjudication afresh in accordance with the law. Needless to add, the assessee shall be provided due and reasonable opportunity to state his case in the matter. As regards the rate (of conversion into Indian rupees), the assessee has, while challenging the same, not brought the corr .....

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; 447 crores. The Revenue, on the basis of the information received from the ED, found the assessee to have issued a transfer instruction to UBS AG on 16.7.2000 to transfer funds in the sum of USD 1 million dollars (1000000) from his account number (space left blank) to another account with the said bank (account number specified) of KT (name of the person), further requesting for an immediate action in the matter (annexed by way of Annexure 11 to the assessment order). The assessee was, accordi .....

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ship between the assessee and KT; their frequent travel abroad together, as well as cross border transactions. In fact, some such documents support and complement each other, providing corroboration, as well as establishing their truth. Reference toward the said discussion is drawn to paras 11.1 through 11.5 (pgs. 9-11) of the assessment order. The document clearly established funds to that extent with the assessee on that date (16.7.2000), the source of which had not been satisfactorily explain .....

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d only in the year 2001, bearing numbers 206-790786, 206-789758 and 206-794786, the third being in the name of his wife (RHAK), with the assessee holding a power of attorney (in his favour) in its respect. The assessee s accounts, opened on 30/7/2001, were never funded and there were no transactions of any kind (including bond and other security transactions). The said accounts were never made operational, and closed on 17.10.2001. The third account, also opened on 30/7/2001, contains only one t .....

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to be in the name of an Indian National (with POA in favour of the account holder s wife), opened in December, 1994, and closed in January, 1998, i.e., over 3 years before the assessee opened an account with UBS. The reason for opening this account was because the account holder was, as stated by him, expecting a transfer from a HAK account with UBS, Zurich (refer para 3.4 of the report). The several Transfer Instructions (TIs) found in search reflect this account as of KT. On the basis of this .....

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ee at any stage. His stating of having no foreign bank account stands also conclusively disproved. In this view of the matter, the same has to be concluded against the assessee. 11. We have heard the party before us, and perused the material on record. 11.1 The letter under reference, reproduced at para 11 of the assessment order as well as, prior thereto, in the show cause notice dated 19.12.2008, reads as under: The Union Bank of Switzerland Zurich July 16, 2000 Attn. Dr. Walli (Through UBS Du .....

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Hotel Inter-Continental , Dubai, bearing its postal address, telephone and fax numbers. The assessee has not denied having signed the said document (i.e., the original copy, meant for being transmitted to the bank) or of being not in Dubai at the relevant time (July, 2000), or on 16/7/2000 specifically (which would also stand to be confirmed from his passport) and, thus, in fact tacitly admits to having instructed his bank in the manner stated. We are conscious that the document was not found du .....

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/cross border transactions of the assessee, including genesis of sums in these accounts (and now under the auspices of a Special Investigation Team (SIT) constituted by the Hon ble Apex Court), to enable the Revenue to take appropriate proceedings under the Act. For all we know, it may well be one of the documents with the Revenue to form a reason to believe u/s. 132 of the Act. There can be in any case no presumption that the same has been obtained by ED illegally or without following the due p .....

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at no stage, denies that the same was not recovered from him. Such like transfer instructions were also recovered from the assessee s residence as well as of KT during search. Why, one may ask, should the assessee (or KT) retain them for years, which itself is a strong indicator of the truth of the document, i.e., of the transfer instruction having been in fact issued. It is notable that the assessee does not, at any stage, including before us, explain the reason for, and/or the circumstances un .....

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t dated 30/6/2003 infra admits to him being his advisor. They travelled abroad together frequently (pgs. 35, 40, 43-45 of Annexure A-2, seized from KT s residence). A signed power of attorney by KT, jointly with another, as representative of Roberts, Mclean and Company Ltd., Kolkata, in favour of the assessee, to deal with the property at 10A, Prithviraj Road, New Delhi (pg. 98 of Annexure A1) was found, which also shows the assessee to be well connected. Signed blank papers by the assessee were .....

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the agreement is only with a view to settle the accounts between the assessee and KT, so that pending final settlement, transfer could take place, i.e., is a distinct possibility. 11.2 The assessee claiming that no transfer of funds had, however, been effected, would be of little moment in-as-much as the addition is toward unexplained money or bank deposit. True, the same may be lying in his account, in whole or in part, from an anterior date, falling in a preceding year. However, it is for the .....

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being his capital, represents a capital receipt, so that it cannot be brought to tax as his income. He, however, does not do so, and merely denies the existence of the account without adducing any evidence toward the same. Again, it is open to be argued that the transfer instruction would not by itself establish the balance in account to that extent. A transfer instruction (TI) is akin to a (non-negotiable) cheque drawn on his bank by the account holder, specifying also the account particulars .....

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proof that there is unexplained money, investment, etc. is on the Revenue. The same, however, can be discharged by it by establishing facts and circumstances from which a reasonable inference toward the same can be drawn (refer: Sudhakaran (C. K.) vs. ITO [2001] 279 ITR 533 (Ker)). The assessee is required to disprove the said document, and the logical inference/s that flows there-from. The assessee has, however, produced before us the copy of the report (dated 30.10.2007) submitted by UBS AG, Z .....

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enue - under-way. Cleary, the charges under PMLA shall only obtain where the assessee is found to have maintained bank account/s abroad, holding substantial sums therein. That is, the very basis on which the amount is sought to be assessed as income in his hands in-as-much as the same has not been disclosed or satisfactorily explained as to its nature and source of acquisition. The question that, therefore, arises is whether it would be proper to, pending the proceedings under PMLA, which in fac .....

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als and evidences brought on record as well as the explanations furnished, i.e., on the basis of the facts as established therein. They are, further, to be concluded in a time bound manner, which, being a statutory prescription, cannot be breached. It is the asssessee who, on the contrary, has been recalcitrant, disregarding the said proceedings, even choosing to be not represented before us, relying ostensibly on written submissions instead. The said non-representation is only deliberate, denyi .....

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me as 6667663 (refer para 11 of the assessment order). We are conscious of this fact, and without which the document is incomplete. It also does not bear the assessee s signature. At the same time, it needs to be borne in mind that the office copy of a document generated is usually retained as such, i.e., without signing, or ascribing thereon information deemed confidential. It is this that prevailed with us, so as to examine the case further despite the document being not complete. Why, Annexur .....

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her sovereign jurisdiction, to another, exercising regulatory power thereon (as per the laws of that country), so that it could be argued that it cannot therefore be relied upon; it being even not clear if the same stands communicated to the Indian investigation authorities. At the same time, however, it needs to be appreciated that the same pertains to the assessee. Why, the same is itself titled: Results of investigation into Hassan Ali Khan and his alleged relationship with UBS . And is clear .....

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it to ED vide its communication dated 28.12.2007, as the enclosures to the said letter to ED indicate, and which is also one of the documents sought to be adduced by the assessee as additional evidence. The Deloitte report makes it abundantly clear that the information provided (by UBS) was not complete (refer paras 2.14, 3.3 and 3.5 thereof). Para 3 of the said report clearly brings out the scope of the work performed and its limitations. In respect of a fax dated 05.4.1997 by one, Hassan Ali K .....

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to KT is admitted, stated to be opened in 1986 and closed in the year 2000 (refer communication by Chandrika Tapuriah (CT) to the A.O. dated 13.12.2011 (at APB-5 - in the case of KT/CT, pgs. 871-873)). The UBS report, however, states of the said account having been closed in January, 1998, pointing to yet another inconsistency with reference to the said report. However, the moot question is: If there was no HAK account at the relevant time, how could this constitute a basis for opening the said .....

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elf (refer his written submissions, viz. para 10 of WS-1). The ED, by the assessee s own admission per its written submissions, has pressed charges against the assessee u/ss.3 and 4 of PMLA in respect of two transactions (pg. 27 of WS-1): a) Laundering of 93 million US Dollars to have been acquired by the applicant in the year 1997; b) USD 700,000 to have been acquired by the assessee in the year 2006. As afore-referred, the assessee has himself, vide transfer instruction dated 23.7.2000, duly s .....

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etc., to the assessee, to look after his business interests and manage his accounts. The Agreement dated 18.07.2001 with M/s. Clamai AG (refer paras 20- 22 of this order) was facilitated by the Bank, with meetings in its respect being also held at the Bank premises itself. Complete reliance therefore cannot be placed on the bank s said report. In fact, the transfer instructions or reference to accounts have been found during search where the reference to the account is not by name/s but in code/ .....

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also confirming the account number, which is the same for both the TIs (refer page 37 of his order for A.Y. 2003-04). The Bank recognizes the account holder only by the code name, providing access upon successfully navigating through a filtering process, including passwords, etc. The UBS report also clarifies (per para 3.5 thereof) on the coding configuration adopted by the Bank qua account numbers. We may at this stage also note, as also sought to be emphasized by the ld. DR during hearing, tha .....

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ceedings and there is a relation between the predicate offences and the accounts of Hassan Ali Khan in Switzerland, before it would be able to proceed with the said request. The same only endorses the concern expressed by the ld. DR, i.e., as far as tax proceedings in India are concerned. We may further add that it is only after September, 2001 attack in New York, USA, that the banking industry across the globe woke up to the threat of financial flows arising from or in respect of such terrorist .....

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the possessor is not the owner is on the person so alleging. This principle is also applicable to tax proceedings, incorporated in the Act (under Chapter VI), so that the principle would be attracted to a set of circumstances that satisfies its conditions. The expression income under the Act, a term of wide import, is applicable to section 69A, among others, of the Act (refer: Chuharmal vs. CIT [1988] 172 ITR 250 (SC)). The assessee, claiming to have no foreign bank accounts, concedes subsequen .....

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the record, being in fact annexed to the assessment order for quite a few years (AYs 2005-06 to 2007-08/Ann. 13 for AY 2005-06), is most revealing in this regard, and annexed to this order as part thereof (Annexure C). The same charts or transverses the assessee s relationship with UBS, commencing with the opening of an account with UBS, Singapore (UBS-Sin) with an amount of USD 500,000 in 1982, up to the date of the statement. Further, that the account had a balance of USD 560 million in Decem .....

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arch), duly accepted, to operate his Locker with Barclays Bank, Plc, issuing a letter (duly signed) dated 23.12.2002 to the said Bank, at London. In fact, PA s - with whom the assessee entered into a consulting agreement to represent him internationally in April, 2001, extended stay at the assessee s residence itself confirms the assessee s overseas financial and business interests. We are conscious that no account number is mentioned in the transfer instruction. Could that, however, be interpre .....

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h the account number (written by hand in the place provided for it in the letter, as in the instant transfer instruction), as well as the assessee s signature. The absence of these attributes would, thus, in our view, be of little moment. In-as-much as, however, the account number, which is not mentioned, could be any of the accounts which the assessee is found to be associated with, he shall be required to obtain the relevant record of his accounts (i.e., accounts of which he is either the hold .....

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the file of the assessing authority. We are conscious that the transfer instruction bears no account number. To accept, as contended, that the transfer instruction of a sum to an account which, as confirmed by the said report itself, belonged to an Indian national (though since closed) was issued without there being any account of the issuer of the instruction at the relevant time, is fatuous, if not also farcical. The assessee has, as it transpires, issued not one but several transfer instruct .....

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andhar v. CIT [2010] 321 ITR 254 (Bom)). The beneficiary is clearly specified, confirmed by the Revenue as an existing person, with complete bank particulars, again, found as correct. That, therefore, there is an account/s, even if unspecified, with reference to which the transfer instruction was issued by the assessee, is the only reasonable inference that emanates in the facts and circumstances of the case. The premise of the assessee s - who has not explained as to why this, or any of the sev .....

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ng assessee - filing returns (up to A.Y. 1999-2000) at Hyderabad, shall, therefore, be required to obtain a clear certificate of not maintaining any account, either as an account holder or its beneficiary or as its POA, i.e., of which he is the owner of or could operate, as specified in the various documents found in search or otherwise transmitted to the Revenue. He cannot, after all, it must be appreciated, prove a negative, i.e., that he does not have any account with UBS AG (on which transfe .....

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) was in fact received or processed by it. In-as-much as the account number (on which the TI is drawn), which is unspecified, could be any of the account numbers which find reflection in the various documents found and seized by the Revenue in search or otherwise in its possession from reliable sources, the assessee, to decisively disprove the document, would require a statement of account for the relevant year in respect of such accounts. We may hasten to add that we are, when we state so, not .....

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ccess to huge funds and, besides investments, was also called upon to finance projects. The AO shall, accordingly, adjudicate afresh, based on his findings in the set aside proceedings, in accordance with law. The said findings shall, inter alia, address the issues raised and considered pertinent by us. Needless to add, the assessee shall be allowed a reasonable opportunity of hearing. We decide accordingly. 13. Ground 7 is again in respect of a transfer instruction by the assessee to UBS AG, fo .....

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truction dated 16.07.2000 favouring KT, i.e., of denial of its existence or, rather, ignorance thereof, with no foreign bank account/s. The same stands assessed and, in appeal, confirmed as unexplained income. 14. We have heard the party before us, and perused the material on record. The assessee s written submissions bear no specific explanation or submission qua this ground, presumably as he has regarded the additions on account of transfer instructions as one block (refer para C of WS-1). The .....

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alloys, besides also providing logistic and trading support services. The case of the parties, accordingly, remains the same, in view whereof, as well as the similarity of the nature of evidence, we have no reason to take any other view than that in respect of Ground 6 (refer paras 9 to 12 of this order). The assessment of the impugned sum is accordingly restored to the file of the Assessing Officer for fresh adjudication, with the same observations and directions as for that Ground. We decided .....

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er are as: - CHIP UID : 095179 - Swift Code AAB, New York : ABNAUS33 - Swift Code AAB, Dubai : ABNAAEAD The transfer instruction, again received by the Revenue from ED, is signed by the assessee. The second additional feature (of this transfer instruction - placed as Annexure 12 to the assessment order) is that both the transferor and transferee account numbers are mentioned, with the transfer being to the assessee s own account with a different bank, and at a different place. The SWIFT codes ar .....

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9 to 12). 16. Ground 9 is in respect of confirmation of the addition for ₹ 7,00,000/- on account of a gift to son. The assessee per his statement on oath dated 05.01.2007 admitted to have gifted a car (Honda City) to his son (Syeed Mohamed Sameer Uddin Ali Khan) at Hyderabad, transferring funds by telex transfer in December, 2000. It was further stated that as the said gift had not been disclosed, the source of which is his business income, the same shall be disclosed to the Revenue. The s .....

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e impugned order respectively). Aggrieved, the assessee is in second appeal. 17. We have heard the party before us, and perused the material on record. We observe the assessee s sworn statement to be prior to and in agreement with that of his son, again on oath, dated 08.1.2007. Where, then, is the question of the Revenue not providing him opportunity to rebut the latter s statement? Neither has the assessee retracted his statement dated 05.1.2007 nor sought opportunity to cross examine his son .....

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which, by all available accounts, can only be considered as lavish and ostentatious. The Revenue has estimated the same at ₹ 30 lacs, allowing the assessee credit to the extent of the income returned. This was found faulty by the Tribunal while adjudicating a similar ground for A.Y. 2000-01 (in ITA No. 3726/Mum/2009 dated 09.12.2015), on two counts. Firstly, the estimate, which has to be an informed one, could not solely be on the basis of the assessee s statement, particularly considering .....

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redit for the amount already disclosed by the assessee toward house-hold and/or maintenance expenditure for self and family (refer para 10 of the said order). The assessee, who had shifted from Hyderabad to Mumbai and Pune (having and maintaining residences at both these places), obtained residency permit for, shifting his base to, Dubai, UAE and is operating there-from, as noted by the AO in his orders, as e.g. para 2.1 of his order for AY 2001-02. The TIs dated 16/7/2000 and 23/7/2000 on UBS A .....

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nics at Pune/ Mumbai, as evidenced by the medical reports filed by him and his wife, RHAK, in appellate proceedings, also entailing expenditure in tidy sums. We, accordingly, consider the assessment of living and life style expenditure at ₹ 30 lacs p.a. as reasonable. The assessee is, without doubt, entitled to credit for the withdrawal for such expenditure booked in accounts. We decide accordingly. 19. Ground 11 impugns the non-grant of telescoping benefit. No such case was made out befor .....

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Co. v. CIT [1980] 123 ITR 457 (SC). The AO shall, in the set aside proceedings, consider the assessee s case in this respect, where one is made out, in accordance with law. This disposes the assessee s said ground, as well as similar ground/s for other years as well, where we observe the assessee contends of an addition as having been already returned, i.e., forming part of his returned income. The AO shall allow credit on the basis of verifiable cash flows, assuming annualized income/expenditu .....

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rdingly dismissed. This also disposes similar grounds for other years as well; the written submissions for all the years having been perused. Asstt. Year 2002-03 20A. Grounds 1 and 2 are common to that for A.Y. 2001-02 and, accordingly, stand disposed of vide paras 4 and 5 of this order respectively. Paras 5 through 9 of the assessment order, we may add, contain detailed discussion on the provision of due and adequate opportunity to the assessee. Ground 3 is general in nature, warranting no adju .....

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ntaining 29 pages), found and seized from the assessee s Pune residence. Page 1 contains the details of, among others, the transactions of loan/s of USD 500,000 by Philip Anandraj to the assessee. A note captioned INDIA mentions that the State Govt. of Kerala was willing to donate 2,50,000 sq. mtrs. of tea plantation to Philip Anandraj (PA) to set up an International Centre for Tourism Research Studies (ICTRS) in Kerala, where he is planning to set up primary and secondary schools for street chi .....

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d 05.4.2001 by HAK, issued in favour of PA, authorizing him to act as Mr. Khan s consultant in his interests internationally. Pages 6 & 7 contain hard copy of a bill addressed to HAK, Pune towards the former s commission for having located, negotiated and brought HAK and M/s. Clamai AG, the seller, together to transact the sale of Hotel Chateau Gutsah, Luzern, Switzerland . Pages 8 & 9 contain hard copy of an unsigned agreement dated 05.4.2001 between PA, Switzerland and HAK, Pune made a .....

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tter that dated 05.3.2008, 13.5.2008 and 17.5.2008) and show cause notices in November, 2008 (on 12/11, 24/11, 26/11 and 28/11) and December, 2008 (19.12.2008) (refer para 10 of the assessment order, as well as para 15 of the assessment order for A.Y. 2007-08). The same stood, accordingly, brought to tax as unexplained income by way of unexplained payments and/or investment. In appeal, the same stood confirmed for the same reasons as prevailing with the A.O., and which are essentially the same a .....

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t belongs to M/s. CM Clamai AG, who had purchased it in order to adjust loans advanced to the promoters (Annexure B to his order). The Hotel had been repeatedly offered for sale in the past, to no success. The addition being confirmed thus, aggrieved, the assessee is in second appeal. 21. The assessee s written submissions for the year (WS-2), apart from making reference to the response by various Swiss authorities/UBS, with (through) whom inquiries were initiated by GOI, already discussed in th .....

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under the circumstances be made, i.e., pending the completion of the investigation by ED. The ld. DR, on his part, relied on the orders by the authorities below, stating that no substantive explanation had been adduced by the assessee in reply at any stage. 22. We have heard the party before us, and perused the material on record. We may, firstly, clarify that we find no merit in the assessee s submission of the A.O. keeping the assessment proceedings in abeyance - which he is even otherwise inc .....

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wo transactions, being for USD 93 million (in 1997) and USD 700,000 (relating to year 2006) (pgs. 27 & 28 of WS-1). The contention is without any merit whatsoever. This aspect, already discussed earlier (vide para 11 of this order), is again emphasized in view of the specific contention raised by the assessee per his written submissions for this year (WS-2). We may now discuss the two additions, albeit separately. The raising of the bill dated 05.4.2001 by PA for commission (for having locat .....

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prising eight items, the first of which is the commission for the agreement for this Hotel, at USD 500,000 (forming part of - pages 2-4 of Bundle 7/Ann. A, furnished by the ld. DR during the course of hearing - on 31.8.2015 - as a compilation). Further still, is the copy of the forwarding letter by Philip Anandraj to the assessee (HAK), faxed on 21.9.2006 (at No. 0044 207 4917 476), stating his account details where the bill amount of USD 16 lacs is to be transmitted. These set of documents, bei .....

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made by the Revenue for any year. This corroborates the statement of PA - who was found staying at his Pune residence at the time of search on 05.1.2007, to the Revenue that he came to India in October, 2006 only to pursue the assessee for the payment of his dues. By all counts, therefore, the payment of commission, to any extent, has not been made. It is only where the fact of payment is established that the Revenue can, in the absence of a satisfactory explanation as to its source by the asses .....

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assessee (buyer) and one, Mr. Franz Glanzmann, as President of the Board of CM Clamai AG (seller). The impression AAKRONR management…... (being not clear) is inscribed at the top of two page Agreement, suggesting it to be on the letter head of some company. The reliability of the document, which has not been challenged by the assessee, is not in doubt. The total purchase price as per the Agreement is CHF 320 lacs, and not CHF 279.99 lacs, as adopted by the A.O., which represents that of t .....

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lation supra is the statement of transfer. The same states of transfer of USD 20 million to account # 08-06868.6 on account of Chateau Gutsah, Luzern, Switzerland. The information, found in search, is specific, even as we find no reference thereto in the orders by the Revenue for the year. This could perhaps be for the reason that the Revenue had, presuming the purchase, added the entire purchase cost, which amount though incorrectly stated, is of no consequence in-as-much as the purchase did no .....

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The assessee, who has not denied signing the document (on behalf of self), or of being not in Switzerland where the document seems to have been executed (and which could be proved on the basis of entries in his passport), has not helped matters at all by not issuing any explanation what-so-ever in the matter. No definite findings - the issue being primarily factual - could under the circumstances be issued at this stage, and the matter clearly requires being remanded back for the purpose. The ma .....

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xplained that unless forbidden from doing so by the statute, the tribunal, as an appellate authority, has the jurisdiction and is duty bound to direct the assessing authority to make fresh assessment in accordance with the law. That was a case where there was a clear violation of the procedure prescribed by law, so that the tribunal set aside the assessment, while in the present case all that we have found is that the necessary aspects of the matter have not been enquired into, so that the matte .....

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irmed in the absence of any explanation by the assessee, who denied the same, so that, aggrieved, he is in second appeal. Per its written submission, the assessee, changing tack, claims that no addition could be made on the basis of the unproved payments. The evidences are mere notings, loose sheets, which are neither audited or authenticated, so that the same cannot be considered as legal evidence. Reliance is placed on L K Advani vs. CBI 1997 Cri LJ 2559 and CBI vs. V. C. Shukla, AIR 1998 SC 1 .....

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ppear to be mistakes, would have a minor impact on the quantum of the addition, even as where and to the extent the same leads to an enhancement of assessment, would require being put across to the assessee. On merits, we observe that the first item (No. 1.1) of the statement is a loan to HAK (via Mr. Tapuriah) for CHF 177,000. How, we wonder, could an addition toward the same be made? Even assuming that HAK has since repaid the amount, the source thereof could be easily explained as from the am .....

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earlier, which is an invoice by PA on HAK (in substitution of that dated 13.11.2005) for USD 16 lacs, does not bear reference to this expenditure at all, implying its payment. The only reference to expenditure in this, later invoice is for USD 4 lacs, which is in respect of an expense listed (of August, 2001). The document being found in the course of search would have to be regarded as true. The assessee, being in Dubai in July, 2000 (refer para 9 of the order), is found to be staying at Zurich .....

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at Dubai (with KT, dated 07.8.2001/Annexure A). UBS AG, Zurich, per its said report, confirm him having visited it personally on 15.8.2001. Clearly, the assessee has interests internationally, also apparent from the issue of LRs to various countries (refer para 3.1 of this order). Incurring expenditure of the like stated in the invoice, viz. hotel, telephone, travel, etc., besides being only understandable, is thus corroborative. That the amounts should be accumulated for so long; the period of .....

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as invoices relied upon are not loose sheets, the forwarding letter itself clarifying that the invoice for USD 16 lacs was in fact transmitted to the assessee on 21.9.2006, clearly mentioning the account details of the beneficiary (PA). In fact, each of the expenses are in respect of specific transactions (with mention of, in some cases, their dates), viz. hotel bills of Ms. Fatima Said and Tapuria; train tickets to Geneva for Khan family; Nelson office telephone bills (from September, 2001 to M .....

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00,000,000 (five hundred million) A/c 0835-899786-7 Black Prince, Credit Suisse First Boston, Zuirch, Switzerland Att: REMO MAURER/SOBE 21.2.2002 USD 390,000,000 (three hundred & ninety million) A/c 08-065-45.0 Credit Lyonnais Bahanhofstrasse 3, Zurich, Switzerland Att: PATRIC WIPFLI 21.02.2002 USD 200,000,000 (two hundred million) a/c 08-068-86.8 Credit Lyonnais Bahanhofstrasse 3 Zurich, Switzerland Att: PATRIC WIPFLI [emphasis, by underlining, ours] The assessee furnishing no explanation d .....

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was accordingly found by him to be a partner in Portelet Holdings Pte Ltd., Singapore, and managing director of Portelet AG, Zurich. The issue with regard to the additions, based on transfer instructions, particularly qua which information has been received from ED, stand discussed in detail at para 9 to 12, 15 of this order. For the same reasons and considerations as stated therein, the matter shall, with like directions, travel back to the file of the A.O. We decide accordingly. Before partin .....

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. The words used in the provision are any person , so that it may not necessarily be the assessee himself. On facts, the man (PA), in whose laptop the documents were stored, as also noted by both the AO & the ld. CIT(A), has not owned these documents, clearly stating them to belong to the assessee. He himself, closely associated with the assessee, was engaged for representing the assessee internationally, having several transactions with him (refer para 24). His residing at the assessee s re .....

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from that found from the seized laptop, were also seized, which are corroborative, independently establishing their veracity. That is, the truth of the documents gets established even independent of the provision of s. 292-C of the Act. The statement/s by PA, made on oath, would be admissible in evidence u/s.132(4) or, as the case may be, s. 131 of the Act. The assessee in fact has not denied or rebutted the statement/s; rather, further presses on PA s statement/s before the ED in proceedings un .....

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iod. He has also travelled to Dubai and back, at least once, staying there, even if for a few days. The same definitely entails expenditure, and in foreign exchange. We accordingly consider these incidences as material for assessment (of income) on account of (unexplained) living and lifestyle expenses, made at ₹ 30 lacs, which we accordingly confirm. Needless to add, the assessee shall be allowed due credit for the amount, if any, already disclosed towards the same. We decide accordingly, .....

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ras 5 through 9 of the assessment order, we may add, contain detailed discussion on the provision of due and adequate opportunity to the assessee. Ground 3 is general in nature, warranting no adjudication. Ground 4 impugns the confirmation of an addition in the sum of ₹ 24,43,14,85,000/- (USD 498.50 million) as undisclosed income by way of alleged unexplained balance in account with UBS. The same is inferred on the basis of several transfer instructions (TIs) (tabulated at pages 8, 9 of th .....

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g issued any transfer instruction, which were in fact unsigned documents. The case of the parties up to the first appellate stage, thus, remains the same, i.e., as for the earlier years. The ld. CIT(A), once again, confirmed the existence of the transferee entities, whose names are specified in the documents found. 29. Before us, while the assessee relies on its written submissions (WS-3), the ld. Departmental Representative (DR) does on the orders by the Revenue authorities. 30. We have heard t .....

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s omitted to be typed at para 10 of the assessment order, taking us to the relevant part (Item 112) of Annexure 3 to the assessment order, which is the notice u/s. 142(1) dated 17.3.2008 (for A.Ys. 2001-02 to 2007-08). The same is with reference to pages 18 and 19 of Bundle 7 of Annexure A dated 05.1.2007 to Panchanama dated 06.1.2007, qua which addition for USD 498.50 million was proposed and stands made vide para 10 of the assessment order. We find the explanation as correct, which has also no .....

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(USD 68.50 million), as claimed by the assessee, is not qua any transfer instruction, but based on a letter dated 16.9.2002 by PA to the assessee (page 11 of the compilation). We find this is as not correct. Page 13 of the said compilation is the transfer instruction for USD 68.50 million dated 7.11.2002 (also referred to at para 10(i) of the assessment order). On further enquiry, it was explained by the ld. DR, with reference to the order by the ld. CIT(A), that Loewengraben Management AG, i.e .....

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he letter dated 19.6.2002 by PA to the assessee (placed at pg. 14 of the compilation) is qua purchase of the said Villa, the initial ZR being the abbreviated form of Zum Rebgarten , in Uerikon, Stafa. Surely, these are not loose sheets or random notings, but payments made or to be made in pursuance to definite arrangements, for which the assessee had entered into agreements, camping in Switzerland, appointing a person (PA) to represent him and advance his interests. The assessee, vide his notari .....

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.3 A scrutiny of the compilation (i.e., Bundle 7 of Annexure A dated 05.1.2007, comprising of 29 pages) shows the TIs have been issued only for USD 68.50 million and USD 72 million, i.e., as listed at item nos. 1 and 2 of the Table. For the balance, it appears to be a table of the various payments, either made or proposed to be made by the assessee. The payments are for the purchase of real estate or towards investments (for which evidence in the normal course events should be available). In our .....

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ing issued, being firstly proposed and, further, only for the purpose of being issued, is certainly higher by far than it being not issued, which would only be where there is a hiccup or change in plan or circumstances, warranting non-issue or deferring the issue of the TI/s. However, by itself, it cannot be said that the statement was indeed followed by a TI for the said amount. Then, is the question of date thereof. Though, again, the two sums for which the TI/s are issued, i.e., USD 68.50 mil .....

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nt (on which TI is issued), making the actual issue of TI as of little consequence. At the same time, it could also be said that the TI was not issued as the assessee could not arrange the requisite funds, so that the inference of a balance (to that extent) on the basis of a proposed TI would be presumptuous. The matter certainly calls for investigation before any definitive findings can be issued, even as there is strong circumstantial evidence against the assessee. The assessee can, and it is .....

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essee shall, qua each of the TIs issued, be required to produce the transcript of his account/s (the account statement) for the relevant year, which would at once exhibit whether any of the ten (10) contemplated transfers comprising the impugned sum, including the two dated 07/11/2002, were in fact executed or not, as also the balance, if any, in the account/s, toward which in fact the addition/s is made. 30.4 At this stage, it may also be relevant to dwell on the three (3) transfers, for USD 20 .....

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der the Agreement dated 07/8/2001 is to be made latest by end December, 2001, the onus is on the assessee to show that no payment/s there-under was made, and it is this payment/s, sought to made/made in November, 2002 (or around about). That is, the onus to prove the nexus, by exhibiting that no payment had been made prior thereto, is squarely on the assessee. Continuing further, the Agreement, found in search from the residences of both - the assessee and KT, is, on close examination, found to .....

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the same time frame, at one place, by the assessee abroad (no such income reported in India) and, at another, through their companies, from their business operations mainly in India. Both the assessee and KT being tax residents in India for those years, with their profit sharing ratio - from their joint venture, being clearly defined, the amount ought to have been, and would therefore have been, where so, returned for those years by the joint venture company/entity. As also the income, claimed .....

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turns, either in India or abroad? How has the quantum been worked out, suggesting maintenance of elaborate accounts. That, despite so, the two did not settle accounts, or even appropriate their respective share in accounts, or even otherwise signify the same, much less return or report the same to the competent authorities in the relevant jurisdictions, for over two decades. It calls for a complete and willing suspension of the sense of reality to accept the statement at face value. In fact, KT, .....

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l without any evidence. And all that has been retained - by both the parties, or survives, is the Agreement dated 07/8/2001! Even if therefore it is shown by the assessee that the TIs for USD 200M are in pursuance of the Agreement dated 07/8/2001, the source thereof as being profits earned - to that or whatever extent, in the past, shall require being shown or reasonably proved, for it to be accepted. Then, again, is the question of avenues where the profits were invested, in India or abroad, or .....

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s proposed for an amount of USD 50 million, which is stated to be for personal requirements (appearing at Sr. No. 7 of the table). The addition toward the same is deleted. Two, the payment as listed at Sr. No. 6 of the table, being in relation to an Agreement dated 18.7.2001, due to be paid, has been also noted by us for A.Y. 2002-03 (vide para 22(b) of this order). Without doubt, the same being in respect of a single payment, could, even assuming so, be brought to tax for either year. The A.O., .....

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nee-son s statement u/s. 131 dated 08.1.2007, stating the source of the said sums, comprised of three amounts credited to his bank account on 24.7.2002 and 26.3.2003, as being gifts from his father, the assessee, who though confirmed the same vide his statements on oath dated 26.4.2007 and 01.5.2007, did not return the same. The addition being confirmed, the assessee is in second appeal. 31A. We have heard the party before us, and perused the material on record. The assessee s written submission .....

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ed of vide paras 4 and 5 of this order respectively. Paras 5 through 9 of the assessment order, we may add, contain detailed discussion on the provision of due and adequate opportunity to the assessee. Ground 3 is general in nature, warranting no adjudication. Ground 4 impugns the addition for ₹ 5.48 lacs on account of gift to son, Syed Mohammad Sameer Uddin Ali Khan. The basis of the orders by the Revenue authorities is the sworn statement dated 08.1.2007 of the donee-son, followed by adm .....

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ecord. The assessee s plea is quizzical indeed in-as-much as, if it were so, what is the dispute about? That it is not so is precisely the Revenue s - which has allowed full credit for the returned income of ₹ 11,08,730/- for the year against addition toward household expenses (G # 6), case/grievance. Rather, before the ld. CIT(A), the assessee making a turn-around, stated that the amount transferred to his son represented a loan thereto by his wife, Rheema Hassan Ali Khan (RHAK), which wa .....

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the gift amount would be by itself of little consequence. The addition is accordingly confirmed. 37. Ground No. 5 is in respect of investment in a Mercedes car, for ₹ 23 lacs. The assessee s marriage with RHAK was solemnised on 24.12.2000. The certificate of Nikah, duly notarised, found during search, revealed the Mehr amount to be at ₹ 21 lacs. The assessee, vide his statement u/s.131 dated 19.2.2007, explained to have gifted a Mercedez car (Registration No. MH 12BP 7860), purchased .....

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sh statement (for F.Y. 2003-04) was also produced to exhibit payment by cash during the year. The same, however, did not find favour with the ld. CIT(A). The loan is to be repaid per 36 Equated Monthly Instalments (EMIs) of ₹ 22,631/- each. The 11 EMIs falling during the year, worked out to ₹ 2,48,941/- only. The books of account were not audited or otherwise authenticated, to be able to place any credence thereon or on the cash statement. Then, again, the assessee would have, beside .....

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o as to be considered as in discharge of the Mehr for his marriage, solemnised in December, 2000. The addition, however, is toward unexplained investment in car. The same was purchased in February, 2003 for ₹ 26.84 lacs. The down payment, to which reference is made by the ld. CIT(A), would therefore only be in February, 2003, i.e., assessable for A.Y. 2003-04. Our second observation is that the 36 EMIs (for ₹ 22,631/- each) work to a total of ₹ 8.15 lacs. The loan amount, on th .....

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and GMac Financial Services is toward the car under reference, while EMIs, as it appears, have been paid to both during the year. The matter definitely requires verification to arrive at definite findings. As regards the payment per EMIs, registration and insurance charges, falling during the year, the assessee has produced a cash statement, which has been disregarded for want of both, authenticity and adequacy. When separate addition is being made by the Revenue for household expenses, being p .....

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on for the current year could exceed the EMIs paid, of course, as increased by the registration and insurance cost, if any, paid during the year. Under the circumstances, we only consider it fit and proper to restore the matter back to the file of the assessing authority to adjudicate afresh, after examining and verifying the assessee s claims, in accordance with the law, allowing the assessee a reasonable opportunity of hearing. We decide accordingly. 39. Vide Ground 6, the assessee impugns the .....

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his additional income for the year before the Hon ble Settlement Commission. The assessee did not raise any ground in respect of the said addition before the first appellate authority and, resultantly, the same is not subject to his findings/adjudication. That is, does not arise out of the impugned order. No application for the admission for additional ground has also been made. The same is accordingly not maintainable. The declaration before the Settlement Commission is accompanied by verifica .....

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ecided vide paras 19 and 20 respectively of this order. 42. Grounds 10 and 11 are general in nature, warranting no adjudication. Asstt. Year 2005-06 43. Grounds 1 and 2 are common to that for A.Y. 2001-02 and, accordingly, stand disposed of vide paras 4 and 5 of this order respectively. Paras 5 through 9 of the assessment order, we may add, contain detailed discussion on the provision of due and adequate opportunity to the assessee. Ground 3 is general in nature, warranting no adjudication. Grou .....

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ts in the bank account to be out of his income by way of horse racing, and which had not been disclosed to the Department (vide statement u/s. 131 dated 19.2.2007). In appeal, the assessee contesting the addition made in the assessment, with reference to the datewise cash deposit, which included ₹ 3 lacs (out of ₹ 17.99 lacs) on 31.3.2004, i.e., falling in A.Y. 2004-05, pleaded for its exclusion. The source of deposit for the balance ₹ 14.99 lacs was also submitted. The additio .....

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n after-thought by the ld. CIT(A) before whom the books of account were not produced. We, accordingly, have no reason to interfere with his order, except for deleting ₹ 3 lacs, being in relation to the cash deposit on 31.3.2004, which is apparent from the date-wise statement of cash deposit, listed in the assessment and the impugned order itself. Further, the A.O. shall, while giving effect to her order, take into account the said cash deposits, including ₹ 3 lacs on 31.3.2004, while .....

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assessee, on being confronted, admitted the repayment of ₹ 12,09,932/- made for both the years in his account as from his horse racing income, not disclosed to the Revenue, agreeing to pay tax thereon, vide statement dated 26.4.2007. The same, however, having been not so included, came to be added to the returned income, and confirmed in appeal in view of the undisputed facts. 46. We have heard the party before us, and perused the material on record. The loan under reference is a housing .....

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.2007 to Panchnama dated 06.1.2007). The assessee disclosed short-term capital gain (STCG) on the said sale per the return u/s. 153A for A.Y. 2006-07 at ₹ 10 lacs. The assessee being unable to show the source of the investment toward the stated acquisition cost of ₹ 25 lacs, the same came to be added for the current year. 48. We have heard the party before us, and perused the material on record. The ld. CIT(A), on the basis that the investment toward purchase cost of the Bangalore fl .....

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taken, forming part of the seized material (Annexure 7 to Panchanama dated 06.1.2007, containing 22 pages): S. No. Reference Annexure/ Page No. Remittance request via telegraphic transfer Value date Conversion rate of USD Amount in Rs. 1 A-7/9 TRIPLE A UBS bonds of the value of US $ 1 billion 07.1.05 43.90 4390,00,00,000 2 A-7/10 TRIPLE A UBS bonds of the value of US $ 0.4 billion 07.1.05 43.90 1756,00,00,000 3 A-7/18 TRIPLE A UBS bonds of the value of US $ 1 billion 04.1.05 43.48 4348,00,00,000 .....

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ference may also be made to para 25 of this order. The assessee denying any knowledge thereof, despite several reminders, the same came to be added as income by way of unexplained investment. The assessee being unable to improve his case in any manner in appeal, the same stood confirmed; the assessee continuing to deny the existence of the accounts, and his arguments being general as in nature, as adopted for the earlier years as well, duly met by the ld. CIT(A) (refer para 6 of this order). Fur .....

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om the investment option chosen; being AAA rated bonds (of UBS). The said statement dated 30.6.2003 clearly states of the assessee s (HAK) intention to invest in hotel properties in Switzerland, and for which he seeks assistance of PA. The assessee could have surely expanded the horizon of his investment options to include securities as well. In any case, it only implies that he has investible monies or access to resources for investment purposes, and which could, pending investment in profitabl .....

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ng the said report clarified that nevertheless the onus to explain the transaction in all the cases where a TI is issued, or apparently so, effectively rebutting the logical inference of the balance in the account at the relevant time, is on the assessee. This is so even where the TI is not found in search, but transmitted to the Revenue by ED, while being more so, as in the instant case, where the TI is found during search. Reference may be drawn to the discussion at paras 11- 12, 15, 25 and 30 .....

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ly unexplained and, further, in agreement with the other materials found and in possession of the Revenue. Why, the notarized statement dated 30.06.2003 supra (Ann. C), itself contains details of the assessee s relationship with UBS, with account opened as far back as in 1982, with USD 5M, as also details of transfer of huge funds. The assessee s stand of complete denial is only toward stalling the process of law, which continues even before us. The same is clearly aimed at providing no clue wha .....

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of living and life style expenses at ₹ 26,54,830/-, made in-as-much as the assessee returned an income of ₹ 3,45,170/- for the year u/s. 153A of the Act. The same is a subject matter of appeal for the other years as well and, accordingly discussed at paras 18 and 26 of this order. For the reasons stated therein, the addition for this year, and with the same incidences, is confirmed at ₹ 30 lacs. 51. Ground 9 is in respect of undisclosed income by way of unexplained investment .....

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same, confirmed the assessment. 52. We have heard the party before us, and perused the material on record. We find little merit in the assessee s case. The assessee per his written submissions (WS-5) challenges the valuation, without bringing any material on record. So, however, the detail of the nine horses purchased, listed at paras 14 and 22 of the assessment and the impugned order respectively, reveals one horse Bu Attifel to be purchased on 19.8.2005. The said date falls outside the relevan .....

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assessee against its business income on horse racing. The same stands disallowed in the absence of any substantiation of the loss, and confirmed for the same reason/s. The assessee, before us, has sought to plead its case with reference to section 74A. 55. We have heard the party before us, and perused the material on record. The Revenue has denied the claim of the impugned loss in view of it being unevidenced. The assessee s alluding to section 74A is thus of no moment. In fact, even section 7 .....

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and 2 are common to that for A.Y. 2001-02 and, accordingly, stand disposed of vide paras 4 and 5 of this order respectively. Paras 5 through 9 of the assessment order, we may add, contain detailed discussion on the provision of due and adequate opportunity to the assessee. Ground 3 is general in nature, warranting no adjudication. Ground 4 is in respect of an addition, since confirmed, of ₹ 1,22,297/- toward unexplained expenditure on air ticket. An air ticket, issued in the assessee s na .....

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penditure. The ld. Departmental Representative (DR) relied on the orders by the authorities below. 60. We have heard the party before us, and perused the material on record. The document has been found during search from the assessee s residence. The fact of travel is not denied. It is for the assessee under the circumstances to prove that, despite so, expenditure was incurred by someone else, which he now claims as by KT. Merely stating so is of no consequence. We find no reason not to confirm .....

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atter of Ground 5 for that year (para 45). The assessee s declared income has been found by the Revenue as not sufficient to meet household and personal expenses. If, as claimed before the ld. CIT(A), bank withdrawals is a source of cash deposit, the source of bank deposit/s itself needs to be explained. The assessee before us, in addition, states that the sale proceeds of the Bangalore property (at ₹ 35 lacs) has been utilized. The capital gain on the said sale (Rs.10 lacs) has been offer .....

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t year could not exceed the balance amount, determined at ₹ 10,75,038/- (para 19 of the impugned order). The matter accordingly stands restored to the file of the Assessing Officer (A.O.) to compute the quantum of the two additions on the basis of the short fall in the availability of cash, which accordingly has to be worked out with reference to different dates. The utilisation of cash for household/personal purposes is to be taken on a uniform basis over the year, while that toward incom .....

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spect of the lease of the assessee s Bangalore property, was accompanied by two receipts of ₹ 2.20 lacs and ₹ 3.30 lacs by the lessee, Rahmathulla, toward refund of the security deposit and cost of furniture and fixture respectively. The same came to be added on account of being undisclosed, with the ld. CIT(A) finding the assessee s case totally un-evidenced. Aggrieved, the assessee is in second appeal. 63. We have heard the party before us, and perused the material on record. The c .....

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he material on record, be said that it was during the current year. The Revenue has also not questioned the assessee on this aspect, for us to draw any adverse inference on nonfurnishing of proper explanation by the assessee. The only impact that we discern is that the assessee s cash flow would witness an inflow and outflow for that sum on 11.4.2005 and 29.4.2005 respectively. The addition is deleted. We decide accordingly. 64. Ground 8 is toward cost (Rs.26,950/-) of travel ticket, found and s .....

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the circumstances, confirmed, dismissing the relevant grounds. We decide accordingly. 65. Ground 9 is toward unexplained monies with Bank. The amount for which the addition has been made and confirmed and, thus, under challenge, is ₹ 54,266.41 crores, being the aggregate (at USD 11.999 billion) of 16 Transfer Instructions (TIs) or requests for various amounts, listed at para 13(ii)/pgs. 13-15 of the assessment order. The conversion rate, not specifically challenged, adopted, is that obtai .....

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hese monies are transferred, by telex transfer, from Switzerland to various beneficiary accounts at New York, Dubai, Zurich, Singapore, London, etc. For each transfer, the beneficiary details are given. While some are toward transfer simpliciter, others are requests for AAA rated UBS bonds for a particular amount, specified with beneficiary details. The assessee, despite being questioned and show caused several times in the matter, denied any knowledge thereof, further emphasising that he had no .....

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t, for each year under reference, under the section Supporting Evidences of his order. We have already explained that the fact of the document, a word of wide amplitude, being found on electronic/magnetic media (viz. pen drive, CD, etc.), and not on paper, would not in any manner impact its evidentiary value or the statutory presumption of section 292C in its respect (refer para 25 of this order). Strict rules of evidences are even otherwise not applicable to the proceedings under the Act, so th .....

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g ultimately filed only in May, 2011, and only on two counts. The reliance on the UBS report stands discussed at paras 11 and 12 of this order. The contention qua ED is not supported by any material on record. We have further explained that the proceedings under PMLA stand on a different footing, and that the request for mutual legal assistance by the Indian authorities would stand to be considered and responded to by the Swiss authorities on a clear nexus between the predicate offences and the .....

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35 (P&H)(Mag); Edayanal Constructions vs. CIT [1990] 183 ITR 671 (Ker). In fact, that apart, the decision in the case of Sumati Dayal v. CIT [1995] 214 ITR 801 (SC), rendered considering four precedents by the hon ble Apex Court, is a locus classicus on the subject. In view of the foregoing, we see no reason to deviate from our decision as delineated at paras 11-12, 15, 25, 30 and 49 of this order, to which therefore reference is drawn. We decide accordingly. 66. Ground 10 is qua an addition .....

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. Financial Services, was also found during search from the assessee s Pune residence (refer para 107 of this order). The matter, in view of the discussion at para 107, is restored to the file of the AO with like directions. We decide accordingly. 67. Grounds 11 and 12: Kindly refer para 64 of this order. 68. Ground 13 is in respect of living and life style expenses. The same is subject matter of appeal for each year and, accordingly, decided by us for each preceding year, following a consistent .....

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2005 and back on 28.11.2005 (refer paras 15 and 19 of the assessment order). The quantum for this year is accordingly confirmed at ₹ 30 lacs, the amount assessed on this basis of the assessee s sworn statement, in agreement with that for the earlier years. We decide accordingly. 69. Ground 14 relates to disallowance of loss of ₹ 8,42,124/-, adjusted against income for the year, returned at ₹ 15.69 lacs. The same stood disallowed in the absence of any evidence toward incurring t .....

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ctions 2(24)(xii), 56(2) and 74A. The activity of owning and maintaining race horses, which is clearly in the nature of a business, is regarded by the Act as a separate and distinct activity, loss incurred in which stands to be set off only against income from the said activity, which is precisely what the assessee has claimed. True, there may be no evidence, but then there is equally no evidence toward earning of income from the said activity as well. The assessee s return is sans any supportin .....

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disallowed, on which penalty is also initiated, it only implies that there is availability of cash at ₹ 24.11 lacs. This causes a double jeopardy for ₹ 8.42 lacs. We have further clarified that the deemed income on account of said expenses can be set off only against amount shown or taken as utilised, in accounts or otherwise, toward such expenses. The set off of loss is accordingly allowed. We may, before parting, clarify that the income from horse betting, assessable u/s. 56, is a .....

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at ₹ 1.0 lac (refer para 18 of the assessment order). The assessee, before the first appellate authority, did not dispute the acquisition, but the valuation. The ld. CIT(A) found the same reasonable and, in fact, consistent that reflected in the assessee s accounts toward purchase of horses on October 1 and November 1, 2005. The assessee s written submissions are silent on this ground and, in any case, the facts are undisputed. We, accordingly, find no reason to interfere. We decide accord .....

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ional income uniformly every year. We decide accordingly. 73. Grounds 18 and 19 correspond to Grounds 11 and 12 for A.Y. 2001-02, decided per paras 19 and 20 respectively of this order. Grounds 20 and 21 are general in nature, warranting no separate adjudication. Asstt. Year 2007-08 74. Grounds 1 and 2 are common to that for A.Y. 2001-02 and, accordingly, stand disposed of vide paras 4 and 5 of this order respectively. Paras 5 through 9 of the assessment order, we may add, contain detailed discu .....

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Officer, who accordingly assessed it as income. In appeal, the assessee challenged the valuation, explaining the same as by way of a gift from his sister; belonging to his mother-inlaw; and purchased on 31/12/2006, besides a part of it comprising watches. The contention being unproved, besides bearing inconsistencies, was rejected by the ld. CIT(A), confirming the addition. 75. We have heard the party before us, and perused the material on record. The document is found during search, and clearly .....

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before the Authorized Officer. The explanation rendered in appeal, which would in any case have to cross the hurdle of rule 46A, is wholly unsubstantiated. We, however, observe two things. Firstly, that the jewellery stated as gifted to the assessee on the occasion of his marriage by his sister, Amia Khan (at ₹ 2.22 lacs) can only be regarded as reasonable, and is thus accepted. Secondly, even if the jewellery stated to be purchased in December, 2006 (at ₹ 13.16 lacs) cannot be acce .....

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sessment, and decide accordingly. 76. Ground 5 concerns an addition for ₹ 12,07,000/- towards unexplained payment. A ICICI Lombard envelope, addressed to one, Nilesh V. Padhye, was found and seized in search from the assessee s residence. The page containing the following details, had 5 of every month, Jan., 2007 (EMI ₹ 14,625), inscribed thereon: 12,07,000 (-) 6,38,000 Loan 5,69,000 (-) 6,07,000 Cash 38,000 Diff. Addition for ₹ 12.07 lacs was proposed and made in the absence o .....

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000/-, as it appears, is the excess repayment in-as-much as the loan would also carry interest, which gets included in the EMIs. Further, the same is clearly unaccounted. The addition under the circumstances could be for the cash component of ₹ 6.07 lacs, plus the EMIs falling due for payment and/or paid during the year. The assessee furnishing no details, it is reasonable to presume 12 EMIs during the year, i.e., ₹ 1,75,500/-. The addition is accordingly restricted to ₹ 7,82,5 .....

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horse trainer, so that he could not afford to purchase and maintain the vehicle, the same was considered as beneficially belonging to the assessee, from whose residence the insurance policy was found and, accordingly, assessed as his income, and confirmed for the same reason, so that the assessee is in second appeal. 79. We have heard the party before us, and perused the material on record. We do not find any infirmity in the Revenue s stand in the facts and circumstances of the case. The assess .....

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sources, and the Revenue is entitled to draw an inference consistent with the facts and circumstances of the case (refer: H. Shahul Hameed vs. Asst. CIT [2002] 258 ITR 266 (Mad)). The addition, however, could only be where the car stands purchased during the relevant year. A car is a registered movable property, the purchase date of which can easily be found. Addition could though be made for the repayment of the loan/s, if any, financing the vehicle, during the year, and toward which an endorse .....

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ecame a member of RWITC during the year on payment of ₹ 5.0 lacs. A cash receipt dated 09/05/2006 for ₹ 2.50 lacs toward its entrance fee was found during search from his Mumbai residence. The Revenue, however, added the entire amount of ₹ 5.0 lac, as it was not clear if the amount of ₹ 2.50 lacs, stated to be paid by cheque drawn on ABM Amro Bank, had been accounted for. Aggrieved, the assessee is in second appeal. 81. We have heard the party before us, and perused the m .....

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ooks on 10/05/2006, while cash receipt is dated 9/05/2006, may not be material where cash is also available in books on 9/05/2006. The basic issue is of the source of cash in the books as well as the balance in the ABN Amro Bank, which cannot be considered as explained merely because the payment is by cheque. The matter needs proper verification of the assessee s claim of the entire sum being duly accounted for and, thus, explained, and, is accordingly restored to the file of the AO for fresh de .....

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, is further supported by the assessee s deposition u/s. 131 dated 27/12/2007. In appeal, the assessee produced an account of payment, as: • ₹ 3,50,000/- (cash) on 4/12/2006 (self cheque No.41245 on ABN Amro Bank) • ₹ 46,50,000/- (cash) on 6/12/2006 • ₹ 11,00,000/- (cheque on Union Bank of India, dated 7/03/2007) The cash was sought to be explained as received from RWITC on 6/12/2006 on account of horse racing (Rs.45 lacs) and horse betting (Rs.15.70 lacs), which .....

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or for any other sum) to the assessee on 6/12/2006. How does it, however, matter, whether the source of payment is unexplained or, as stated, income by way of horse race winning and betting, both being incomes chargeable to tax (Sec. 115 BB). The same would impact the head of income under which the impugned sum would stand to be assessed, i.e., as income from other sources u/s. 56 r/w s. 69/69A or u/s. 28. This aspect has in fact been neither impugned by the assessee nor properly addressed by th .....

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income, qua which we are inclined to be in agreement with the Revenue in-as-much as no definite evidence toward horse racing/betting income is produced, apart, the moot question is whether any, and to what extent, addition is called for considering the purported inclusion of the impugned sum in the income returned, i.e., of having returned the same as income. It is also not clear if the assessee s balance-sheet as on 31/03/2007 reflects the investment in the said car. Under the circumstances, we .....

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We have heard the party before us, and perused the material on record. The Registration Certificate (RC) (found in search) shows the car model as 2002 . A car bearing registration number MH 12BP 7860 was found as purchased for like amount (Rs. 26,84,244) in Feb., 2003 (refer Gd. 5 for AY 2004-05/paras 37 & 38 of this Order). The car under reference, thus, also seems to be purchased in Feb., 2003, even as admitted by the assessee before ED - at a cost of ₹ 27.91 lacs (refer para H of W .....

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AO for being decided afresh, in accordance with law, allowing the assessee opportunity of hearing. We decide accordingly. 86. Ground 10 is toward part payment of Honda Civic MTABs. Cash receipt dated 17/11/2006 for ₹ 1 lac by Deccan Honda Bafna Autocars, favouring Abbas A. Abbas, the assessee s father-in-law, was found in search from the assessee s Pune residence, and added and confirmed as his income in the absence of any explanation; the assessee s father-in-law being aged and not an ass .....

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ather-in-law has no known source of income, being not even an assessee with the Revenue. Even the banks/finance companies finance only on the basis of documented income in-asmuch as the repayment of loan would only be, or is likely to be, there-from. The vehicle is further not only to be purchased but maintained as well and, as it turns out, is the second vehicle, an upmarket brand at that, purchased by Mr. Abbas. The assessee, a close relative of the buyer , from whose residence the RC is found .....

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ition made for each of these three years. The facts and circumstances, as well as the case of both the parties, being the same, we confirm the addition, as for the preceding two years, for which reference may be made to paras 44 and 61of this order. We may, however, add that there can be no double addition for the same amount, as where the cash deposited is utilised, as by issue of bearer cheque for ₹ 3.50 lacs for payment of car (refer paras 82,83). In other words, the addition is confirm .....

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t to the A.O. s verification of the same not resulting in a double addition in-as-much as the amount is stated to be paid through ABN Amro Bank. We decide accordingly. 90. Ground 13 is, at ₹ 25.50 lacs, toward investment in house property at Bangalore. On the basis of the material seized in search, the assessee was found to have paid ₹ 25 lacs as advance (in November, 2006) to M/s. H.M. Constructions for purchase of an apartment at Bangalore, and another ₹ 50,000/- to M/s. Khai .....

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red to his statement u/s.131 dated 01.5.2007. 91. We have heard the party before us, and perused the material on record. We find little merit in the assessee s case. The explanation, now furnished, firstly confirms the transaction. Two, there is nothing on record to establish the stated source (loans), in terms of identity, capacity or genuineness. We are aware that the payment of ₹ 25 lacs is from ABN Ambro Bank, cash deposits in which have been separately brought to tax (Gd. # 11). Howev .....

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before the Revenue or before us. The assessee fails. We decide accordingly. 92. Ground 14 is toward an addition for ₹ 63,391/- by way of unexplained expenditure on clothing, evidence in respect of which was found in search, and added on account of it being undisclosed. We observe no separate addition toward household or living expenses for this year, nor is the amount toward such expenses for the year stated. The addition is accordingly confirmed. We decide accordingly. 93. Ground 15 is q .....

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ing not disclosed, the amount of ₹ 50 lacs was added and confirmed in assessment, so that, aggrieved, the assessee is in appeal. 94. We have heard the party before us and perused the material on record. The assessee s case is that these are mere notings and do not constitute evidence. The Revenue s case, on the other hand, is that it is clear that the assessee was in the process of purchase of the subject property. There is nothing on record to show that the same was not purchased, or that .....

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gh one, Rizwan Razad. The onus on the assessee would stand discharged only on satisfactorily explaining the document/s. The Revenue s case, on the other hand, can sustain only if the payment to the extent of ₹ 50 lacs can be inferred on the basis of the said document, which is ostensibly toward purchase of the flat. In whose hand the noting was made, which the law presumes as of the assessee, and which could also be of Rizwan Razad, may be relevant. In whose name the phone numbers mentione .....

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e. We decide accordingly. 95. Ground 16: Page 33 of Annexure A supra is a receipt dated 30.12.2006 for ₹ 20,000/-, added for want of explanation. In appeal, the assessee admitted the said payment, stating the same to be debited to his capital account for the relevant year. The addition was, however, confirmed for want of correlation. We find this strange. The receipt would bear out whether the payment, made on 30.12.2006, is by cheque or cash, specifying the cheque number in the case of th .....

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stion is of the source of money expended on the purchase or booking of the ticket for foreign travel by the assessee. If the assessee did not undertake travel, it may result in a refund as per the rules governing the same, where cancelled within the prescribed time. We, accordingly, confirm the addition. 97. Ground 18 is toward cash payment of ₹ 32,500/- on the basis of a receipt dated 30.12.2006, issued by one, Sameer Zamiar (page 36 of Annexure A). The same came to be added and confirmed .....

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37 (of Bundle 6/Annexure A) and 21 (of Bundle 7/Annexure A), were found from the assessee s residence during search, containing similar entries, i.e., a balance of ₹ 4,52,696/- as on 23.12.2006, part payments on 23.12.2006 and 28.12.2006, with ₹ 20,87,500/- written on the reverse. The same came to be added and confirmed for want of any explanation. The paper is captioned Ritesh , a person the assessee states he does not know, besides denying any payment to him. The assessee s denial .....

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ay represent the amount for which the payment is to be made. That would, by itself, will not imply that the payment to that extent stands made during the relevant year. The addition, thus, is directed to be restricted to the extent afore-stated. We decide accordingly. 99. Ground 20 relates to an addition for ₹ 74,000/-, again, based on seized material, being a receipt issued by one, Zahir Shaikh for purchase of an electronic item. The assessee claims the same to be debited to his capital a .....

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the peak rate of ₹ 46.44 for the relevant previous year (f.y. 2006-07). The assessee has, despite sufficient opportunity, not issued any explanation with reference to the document, which the Revenue finds as being true in view of the provisions of sections 132(4A) and 292C, deeming the amount as income. 101. We have heard the party before us, and perused the material on record. The document further bears the name of Couster, HB, Weholi and telephone numbers, all of which are to be regarded .....

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ceipt as on 05.1.2007, the date of search. Per contra, the inference of income is valid. This leaves us with the amount as representing a payment due as on 05.1.2007, i.e., a liability to the named person. The inference of income even in such a case cannot be faulted. This is as the liability incurred would only be against value - to that extent, received, and in respect of which the liability is incurred. The assessee can only be considered as having discharged the liability in the normal cours .....

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We decide accordingly. 102. Ground 22 is, again, qua an unexplained expenditure for ₹ 74,500/- toward cost of one canon camera and speaker. The assessee s case is general, stating of the evidence with the Revenue as being not conclusive. We find the argument untenable. The document is speaking, in respect of purchase of electronic items of common day use. It is nobody s case that the camera cannot or had not been purchased. Further, what explains the document at the assessee s residence? T .....

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6 (pages 2, 3 and 4 of Bundle # 7 of Annexure A dated 05.1.2007 to Panchnama dated 06.1.2007). The same was added on account of the payment being undisclosed, with the material found in search having established close business relationship between the assessee and PA. 104. We have heard the party before us, and perused the material on record. We firstly observe that the invoice for USD 1,600,000 (page 4 of Bundle 7/Ann. A supra), which is toward services rendered to HAK by PA from 04/01 to 08/06 .....

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n fact made or not, but whether the TI is actually issued or not. This is as the issue of TI itself signifies the balance in account at least to that extent. Reference in this context may also be made inter alia to paras 11-12 of this order, delineating our reasons for considering the issue of TI as a valid ground for confirming the addition. At the same time, however, no TI has been issued for USD 16 lac. We have, vide para 22(b) of this order, found that no payment for USD 16 lac can be said t .....

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extent of USD 5 lac. We decide accordingly. 105. Ground 24 is in respect of an addition on account of unexplained balance in bank account with UBS AG, Zurich, at ₹ 37,154.10 crores (USD 8 Billion). Search material (numbered as Bundle 1 of Annexure A dated 06/01/2007 to Panchnama dated 06/01/2007), is a set of 6 pages (annexed as Ann.11 to the assessment order). These are again print-outs of the scanned documents, found on the laptop of PA. Page 6 is a confirmation dated 08/12/2006 (on a sh .....

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till 15/01/2007, after which HAK can pursue any mode of investment or deposit, wherever and whenever he chooses to. Pages 1 and 5 of the said set are the statement of accounts, again, on the letter head of the UBS, in the name of Hassan Ali Khan, issued under the signature of M. Wilthrich, for and on behalf of UBS Ltd., stating the balance on two value dates, as under: Date: 31.08.2006 Amount: USD 6,620,575,431.00 Date: 02.11.2006 Amount: USD 7,780,330,548.00 The amount of USD 8 Billion came to .....

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us of the fact that these were found in search, and from his own residence. Further, PA, in his sworn statement u/s. 132(4) dated 06/01/2007, on being asked about the original documents, stated that these documents were found from the very same premises (i.e., the assessee s Pune residence), and that he left them there after scanning the papers. The additional evidence produced by the Revenue and admitted by us, however, includes a letter dated 18/12/2013 issued to CBDT by its Swiss counterpart .....

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d by UBS AG, that there was, at no time, a phone conversation between HAK and its Chairman s office; that the said letter was never written or signed by any employee of UBS AG; that at no time the amount of USD 6 billion transferred to any account in the name of HAK. Our first observation in the matter is that both the assessee and PA have issued evasive replies, which are mutually inconsistent, if not contradictory, so that either of them, or perhaps even both of them, are not speaking the trut .....

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. Then, where did the original documents disappear? Further, PA would have scanned the documents only finding the same important and relevant. PA was representing the assessee to the outside world, engaged for promoting his business interests internationally. This could only be on the basis of investible resources with HAK, toward which are all the three documents (scanned copies) found from the PA s laptop. Reference here may be made to the assessee s notarized statement dated 30/06/2003, stati .....

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nd 104 of this order. Now, coming to the communication dated 18/12/2013 by Swiss authorities to CBDT, stating that the letter dated 08/12/2006 was not written by any of the employees of UBS AG. We find it odd that UBS AG issues such a disclaimer without, at the same time, stating that the signatures of Marcel Rohnar/M.Rohnar and M. Wilthrich , both of whom ostensibly signed the confirmation dated 08/12/2006, are not their signatures, or that their signatures are forged. Or that these two persons .....

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also form part of the scanned documents, three in number. It is notable that PA came to India in October, 2006, and was admittedly residing at the assessee s Pune residence since. Surely, and in any case presumably, they were discussing not just the assessee s dues to PA, but further plans as well. The two dates are for the same period, and perilously close to the date of the confirmation (08/12/2006). Then, again, are these two statements among the 403 documents given by CBDT to its Swiss count .....

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ght, as appears to be the case, as the Revenue would have most certainly highlighted this aspect otherwise. This is very surprising, considering the criticality or the extreme significance of the said information, both in context of the assessment under the Act as well as the ongoing investigation by ED. From the tax point of view though, the balance in the assessee s account/s with UBS AG, even if its number/s is not specified, is sufficient to attract the deeming fiction of assessment as incom .....

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g of bank accounts with UBS AG, and locker with Barclays Bank PLC, dealing with Credit Lyonnais, Bank Sarasin. et. al. over the past few years (since 2001) - all of which is abundantly documented and evidenced on the basis of materials found in search. What for, for instance, PA was staying at his residence, and what was he doing there? A multitude of such questions arise, all of which get stonewalled by his being in denial mode - clearly a deliberate strategy. We, under the circumstances, only .....

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er by himself or through the agency of UBS AG, can surely lead and furnish the necessary evidence and the required information. The Revenue has also much to explain, i.e., given the incriminating material found in search, and to which the statutory presumption of s. 292C therefore, applies. It shall be at liberty to seek verification or adduce any material in support or in furtherance of its case; rather, of the truth of the matter, even as we may clarify that the onus, in view of the documents .....

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ng S.K. Financial Services, i.e., as the beneficiary, in its account with Barclays Bank, PLC, New York, for USD 700,000 was found. Inquiries in its respect were made through the FT Division of CBDT, and the assessee show caused in the matter, as also qua another TI dated 18.4.2006 for USD 99,965 in favour of the said concern. The two amounts, converted at the relevant rates, were added at the impugned sum of ₹ 3,59,47,418/-, which is contested before us; the ld. CIT(A) confirming the asses .....

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ution of the request by Ministry of Home Affairs, GOI, made pursuant to Article 7 of the Treaty of Mutual Legal Assistance in criminal matters (pg. 10 of Additional Evidence). Then there is a response dated 22.3.2010 (by Barclays Bank) and letter dated 24.3.2008 by the Department of Treasury, Internal Revenue Service, Washington (pgs. 12 and 23 of Additional Evidence), each with accompanying documents. The information provided is definite, gathered in some cases by issuing subpoena on S. K. Fina .....

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e assessee shall, in addition, be required to meet the Revenue s case, further fortified, on the basis of the input received, since admitted in evidence by us. We, accordingly, with like directions as for the preceding years, restore the matter back to the file of the A.O. to decide afresh in accordance with the law, issuing definite findings of fact after allowing the assessee an opportunity of being heard. This also decides Ground 26 of this appeal, being qua TI dated 21.11.2006 in favour of M .....

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being referable only to para 16(ix) of his order and not para 16(vii), so that addition toward the latter (at sr. no. 25/pg. 33 of the assessment order) is superfluous. The same is accordingly directed for deletion. We decide accordingly. 108. Ground 26: Refer para 107 above. 109. Ground # 27 is, again, in respect of an amount (USD 108,000) transferred to a Swiss Bank official, Remo Maurer (value date: 28/11/2006), converted at the relevant date. The same came to be added in the absence of any .....

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Private Banking (Zurich), and his responsibilities included handling the Indian subcontinent, having in fact lived and worked at Mumbai from 1996 to 1999 (refer page 39 of his order for AY 2003-04). We, therefore, for the reasons stated qua different grounds toward additions in respect of TIs at paras 11-12, 15, 25, 49 & 65 of this order, decide likewise for this Ground as well. 110. Ground # 28 refer para 107 of this order. 111. Ground # 29 is toward non-allowance of set off of loss of  .....

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xplained investment on horses, at ₹ 13 lacs, i.e., as found purchased by him during the year, valuing the same at ₹ 1 lac each, i.e., on the basis of field enquiries, as for the earlier years (para 18 of the assessment order). No affective rebuttal being furnished by the assessee, the same came to be confirmed by the ld. CIT(A), finding the price reasonable with reference to the entries made in the assessee s books (for the purchase of horses as reflected therein). The assessee has n .....

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assessee s Pune (Rs. 2,36,650/-) and Mumbai (Rs. 88,93,000/-) residences; the assessee himself admitting, vide statement u/s. 131 dated 27/02/2007, the same to be unaccounted (refer para 19 of the assessment order). The assessee s claim before the ld. CIT(A) that cash had been accounted for, was found by him as unverifiable. In fact, the assessee had deposited ₹ 45 lacs as advance-tax on 05/01/2007, i.e., the very day the assessee was searched, making the cash-book, as furnished, doubtful. .....

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tly, to account for the admitted income/s and avail credit for the corresponding cash. The Revenue having seized cash at ₹ 90.29 lacs (of the total ₹ 91.30 lacs found), what, we wonder, is the source of advance-tax deposited on the very same day. There is no reference to the cash-book, considered doubtful by the ld. CIT(A), by the AO, before whom, it appears, the same had not been produced. Our only concern is that the addition for the admitted cash is made, and that there is no doub .....

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as admitted as on 31/3/2007, the year-end. We may here also add that cash to the extent of ₹ 5 lacs has been confirmed for addition for A.Y. 2000-01 vide our order for that year (in ITA No. 3726/Mum/2009 dtd. 09/12/2015). We decide accordingly. 115. Ground # 32 is toward unexplained investment in branded, luxury watches, at ₹ 19.97 lacs, being in fact admitted by the assessee per his statement u/s. 131 dated 27/02/2007 (refer para 20 of assessment order). The assessee before the ld. .....

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in second appeal. 116. We have heard the party before us, and perused the material on record. Firstly, it is the balance in account as on 05/01/2007, and not on 31/03/2007, that is relevant. Two, the assessee s claim/s qua valuation is unsupported by any material on record, even as the reflection in accounts only implies an admission. Watches, to the extent of ₹ 11 lacs have however already been brought to tax for A.Y. 2000-01, and confirmed by us (refer para 8 in ITA No. 3726/Mum/2009 da .....

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is savings bank account (# 561067) with ABN Amro Bank on 21/12/2006 for purchase of a car (Honda Civic). The assessee, vide his sworn statements dated 26/4/2007 and 01/5/2007, confirmed the same, stating to have telex transferred the sum to his son out of his horse race winnings. Contesting the addition so made in first appeal, the assessee claimed the amount to have been duly reflected in his books of account, which was found unsubstantiated by the ld. CIT(A), so that the assessee is in second .....

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decision consistent with his findings (refer para 114 of this order). We decide accordingly. 119. Ground # 34 is in respect of a Mercedez Car (Regd. No. MH 12BP 7860). The same was purchased by the assessee in Feb., 2003 for ₹ 26.84 lacs, and stated to have been given to his wife, RHAK, in mehr; the nikah-nama of their marriage in Dec, 2000 stating the mehr amount at ₹ 21 lacs. The addition qua purchase of this car stands discussed and decided vide paras 37-38 of this order. The ass .....

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has been denied by the Revenue. When was the car sold; to whom; and for what amount? Then, on what basis the same is claimed to have been repurchased in Nov.-Dec., 2006? The assessee s claims are wholly unsubstantiated, if not also fanciful. How does it, however, result in an addition for ₹ 14 lacs is the question. If cash has been introduced in books, as it appears, during the current year (at ₹ 14 lacs) on account of the said sale, addition u/s. 68 would arise, which shall also fr .....

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car, stated to be purchased on 31/12/2006, is conspicuous by its absence. The assessee s claim of purchase and sale of these cars is wholly unproved. The AO shall restrict the addition, made at a total of ₹ 18 lacs for both the grounds, to that consistent with his findings, working the cash flow as delineated supra (refer para 114). We decide accordingly. 121. Ground # 35: Refer para 120 above. 122. Ground # 36 is toward unexplained cash credit for ₹ 1 crore. The assessee claims loan .....

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t addresses; PAN, etc., as emphasized by the ld. CIT(A), is not provided. The assessee per his written submissions (para C of WS-7) states of the addition as having been made without any definitive, concrete evidence with the Revenue. The burden of proof; the credit being admitted in assessee s accounts, reflected as sundry loans at ₹ 129 lacs (ref. para 78 of the impugned order), is on the assessee, which has not been at all met. Case law on s.68 is legion, even as some case law in this r .....

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t ₹ 1,65,000). The ld. CIT(A) observed the assessee s claim before him, confined to travel to Canada only, as un-evidenced. Aggrieved, the assessee is in second appeal. 125. We have heard the party before us, and perused the material on record. The total addition is for ₹ 17 lacs, the balance ₹ 5 lacs being toward the cost of the stay abroad. The travel itinerary has not been disputed, except for stating of a single visit to Canada, i.e., as against three journeys taken by the .....

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ed 06/1/2007), referred to, inter alia, at para 20, indicating either a dual citizenship or passport, or of one being issued on expiry or in lieu of the other. The assessee s claim of the travel expenditure being borne by KT, who accompanied him on every visit abroad (refer para I of WS-7), is, besides being without any material on record, of no consequence in the absence of any confirmation by KT. In fact, all that was required in that case was for the assessee to exhibit this on the basis of t .....

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d in the assessment order, is reasonable. We decide accordingly. 126. Ground 38 impugns the income of ₹ 15 lacs, additionally offered before the Hon ble Settlement Commission. The assessee s case, as well as that of the Revenue, being the same as far the preceding years, decided per paras 40, 53, and 72 of this order, we find no reason to deviate there-from. Needless to add, the assessee shall be allowed due credit while computing the availability of cash, distributing the additional incom .....

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f instant proceedings being bad in law in-as-much as they stand proceeded with and concluded pending the proceedings under PMLA Act, which are under trial before the sessions court. Reproducing section 71 of the said Act, as under, it is said that the same would have an overriding effect, so that the assessments made would be to no consequence in law, further relying on the decisions in the case of Gautam Kundu vs. Manoj Kumar, Asst. Director (AIR 2016 SC 106) and Janta Jha vs. Asst. Director (i .....

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Income, a word of wide import, is taxable under the Act irrespective of the manner of its earning, and the Act places no premium on the legality thereof, with which it is not concerned. The Hon ble Courts have, rather, upheld bringing an amount to tax even on the basis of unjust enrichment (refer: Shree Digvijay Cement Co. Ltd. vs. Union of India [2003] 259 ITR 705 (SC); Sinclair Murray & Co. P. Ltd. vs. CIT [1974] 97 ITR 615 (SC)). Again, where the nature and source of any deposit in the as .....

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We have already stated of the provisions of the Act and PML Act as operating in different fields. We are also completely unable to understand the relevance of the two cited decisions; the same relating to violations under Companies Act and SEBI Act (in the former case) and Indian Penal Code and Arms Act (in the latter), which are scheduled offences under PMLA. The assessee s written submissions would therefore be to no moment. 129. In the result, the assessee s appeals for all the years are part .....

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