TMI Blog2017 (12) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... was entitled to bring US $ 10,000 without any declaration in terms of Baggage Rules as given under FEMA. Thus the assessee being an American citizen who is otherwise permitted to convey US $ 10,000 in India without any explanation then the same cannot be taxed in India. Otherwise also, to be taxable in India, assessee has to be resident of India within the scope and meaning of section 6. Thus, on the merits we hold that the addition made by the Assessing Officer and sustained by the Learned CIT(Appeals) cannot be upheld for the reason that the assessee was neither liable to file return of income in India nor any income can be held to be chargeable in the hands of the assessee as he was not resident of in India in terms of section 6. Accordingly, the additions sustained by the Learned CIT(Appeals) is deleted. - Decided in favour of assessee. - ITA No. 3247/Del/2011 - - - Dated:- 22-8-2017 - SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER For The Assessee : Smt. Sweety Kothari, Advocate For The Revenue : Shri Anup Singh, Sr. DR ORDER PER AMIT SHUKLA, JUDICIAL MEMBER: The aforesaid appeal has been filed by the above named appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sited in the said bank during the relevant period and nor by the appellant any time. Thus, the addition so made must be deleted. 8. The learned CIT(A) erred in law and on facts in confirming the conversion rate @ ₹ 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 deserves to be quashed and the demand raised by the alleged assessment o 'er must be cancelled. 11. The appellant craves the leave to add, substitute, modify, delete or amend all or any ground of appeal either before or at the time of hearing. 2. Before us the ld. Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was deposited. Since the amount deposited in the bank and the interest accrued thereon was not declared and no return of income was filed by the assessee in India, therefore, the Assessing Officer issued notice u/s 148 (dated 26.3.2009) on some last known address of the assessee in Delhi. The assessee s claim throughout had been that, since he was an NRI having no taxable income in India, therefore, he was not liable to file any return of income in India. The ld. Assessing Officer has rejected this contention of the assessee on the ground that, simply by obtaining a foreign passport one cannot become non-resident and in order to be an NRI assessee needs to fulfill any of the two basic conditions prescribed in section 6. Firstly, he should be present in India for a period amounting in all 182 days or more; and secondly, he having within the 4 years preceding that year been in India for a period or periods amounting in all 365 days or more, is in India for a periods amounting in all 60 days or more in that year. He wanted to ascertain residential status of the assessee right from the financial year 1997-98 to 2000-01. However, as per the Assessing Officer no information in this rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was called upon from the Assessing Officer after verifying the original passport of the assessee and to ascertain the number of days the assessee was present in India. In response, the Assessing Officer has submitted following remand report vide his letter dated 11.8.2017. Sub: - Remand report in the case of Shrl Arun Kochhar for verifying the residential status In the A.Y. 2002-03 - regarding Kindly refer to the above mentioned subject. An application alongwith copy of order sheet entry (in original) of Hon'ble ITAT dated 06.06.2017 has been filed by the AR of the assessee on 07.07.2017, in which the AR has submitted that verification of original passport of above said ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 6, the assessee cannot be held to be resident in India. The findings of the Learned CIT(Appeals) as well as that of the Assessing Officer in the wake of remand report itself gets vitiated. Now it is a matter of fact that the assessee was not a resident in India in terms of section 6 and was therefore, neither required tofile any return of income in India not any income can be brought to tax in India. Therefore, the deposits made in the foreign bank account cannot be held to be included as taxable income in India. 7. Similarly, with regard to the addition of ₹ 3,42,020/- which represented deposits of US $ 7,000/- in ICICI Bank, New Delhi, we find that the assessee being an NRI was entitled to bring US $ 10,000 without any declaration in terms of Baggage Rules as given under FEMA. Thus the assessee being an American citizen who is otherwise permitted to convey US $ 10,000 in India without any explanation then the same cannot be taxed in India. Otherwise also, to be taxable in India, assessee has to be resident of India within the scope and meaning of section 6. Thus, on the merits we hold that the addition made by the Assessing Officer and sustained by the Learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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