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TMI Blog2017 (12) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances and on facts of the appellant the notice issued u/s 148 of the Act is bad in law as it was just based on presumptions. Thus, the same should be quashed. 2. The assessment order is bad in law and on facts as the same was framed without disposing off the objections filed against these assessment proceedings initiated u/ss 147/148 of the Act, contrary to law laid down by the Apex Court in GKN Driveshafts India Ltd Vs. ITO'(2003) 259 ITR 19'(SC). Thus, the same needs to be quashed. 3. The CIT(A) erred in law and on facts by not following the order of the jurisdictional High Court in the case of Haryana Acrylic Manufacturing Co. Vs. CIT (2009) 308 ITR 38 (Delhi) for quashing the assessment proceedings as time barred. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d CIT(A) erred in law and on facts in confirming the conversion rate @ Rs. 48.86 per USD erroneously as the average rate for the financial year 2001-02 without giving any basis or evidence of the same in the assessment order and also without confronting the same to the appellant. Thus, the addition made on the basis of said conversion rate must be deleted. 9. That the assessment order along with the notice of demand is void ah initio as it is time barred not framed before the limitation period and is beyond the authority of law as prescribed u/s 292BB of the Act. Thus, the same should be quashed. 10. That on the facts and circumstances of the appellant, the impugned assessment order framed on surmises and conjectures is illegal which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot liable to be taxed in India in terms of section 6 being a non-resident Indian, then no such amount can be taxed in the hands of the assessee. The remand report submitted by the Assessing Officer clearly points out that the assessee was not resident in India during the relevant previous year, therefore, there is no question of making any addition in the hands of the assessee. 3. On the other hand, the Ld. DR strongly relied upon the order of the Learned CIT(Appeals) and Assessing Officer. 4. We have heard the rival submissions and perused the relevant findings given in the impugned order as well as materials referred to before us. From the records it is seen that the assessee is an American citizen since year 1999 and is a US passport h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee right from the financial year 1997-98 to 2000-01. However, as per the Assessing Officer no information in this regard was furnished by the assessee and accordingly, he rejected the assessee's claim that he was an NRI assessee could not established (his status). Thus, he taxed the entire deposits lying in the foreign bank account aggregating to Rs. 8,77,23,967/- and also US $ 7,000 deposited in ICICI Bank which aggregated to Rs. 3,42,020/-. Such a finding of the Assessing Officer that assessee has failed to prove his non-resident status has been confirmed by the Learned CIT(Appeals) also. The findings of the Learned CIT(Appeals) in this regards reads as under:- "In the appellate proceedings that appellant has submitted that appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t with the conclusion of the Assessing Officer that by simply obtaining a passport of a foreign country, one cannot become non-resident. In order to be a non-resident, it was necessary that assessee did not fulfill any of the two basic conditions prescribed u/s 6 of the Act. Thus, in order to ascertain the residential status of the assessee, his stay in India was required to be verified for t]je financial years 1997-98, 1998-99, 1999-00, and 2000- 01 and, even the financial year 2001-02 relevant to the instant year. On the facts of the appellant, the period, of stay being un-verifiable, therefore the ground raised is dismissed." 4. To ascertain the correct facts during the pendency of the proceedings before this Tribunal, a remand report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 31 On the basis of above table the stay in India by above said assessee comes at 31 days only. Since this office has not received any such direction of order sheet in original from ITAT. I am submitting this report in compliance to order sheet dated 06.06.2017 as provided by the assessee in original(copy enclosed). Yours faithfully, (Janaraan Das) Deputy Commissioner of Income Tax Central Circle -31, New Delhi" 6. From the aforesaid report it is evidently clear that the assessee's presence in India was only for 31 days in the relevant previous year. Whence, the assessee who is an U.S.A. citizen since 14.9.1999; and is living in USA since 1974; and his presence in India during the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X
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