TMI Blog2018 (2) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... esidential status of the assessee as required under the provisions of 1961 Act. These are the documents for making investments in UTI in the US 64 securities offered by UTI for which self declaration by the assessee could be sufficient but to establish the residential status in India of the assessee from the view point of the 1961 Act , the assessee has to prove through cogent evidences such as passport to prove her stay outside India for stipulated period as per conditions stipulated u/s 6 of the 1961 Act. Scope of provisions of Section 254(2) is restricted to correction of the mistakes apparent from record and wherein in the instant case a conscious decision was taken by the DB of Tribunal which is not shown by the assesee to be a perverse view not sustainable in the eyes of law , and hence the same is not amenable to corrections within limited mandate of provisions of Section 254(2). Thus this contention of the assessee lacks merit and is hereby rejected. The assessee did not submit passport for relevant period nor any bank statements were submitted and it was claimed that bank statement and passport was lost. The tribunal has duly deliberated on these issues in its order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tus was accepted by the AO. The Division Bench of the Tribunal confirmed the invocation of provisions of Section 263 by Pr. CIT by holding as under: 8. We have considered rival contentions and perused the material on record including case laws cited before us. The AO received information from Investigation wing that assessee has an account during the relevant previous year in Switzerland with HSBC Bank at Geneva. The AO based on such information reopened the assessment u/s 147 of the Act for assessment year 1996-97 by issuing notice dated 26-03-2013 u/s 148 of the Act. The assessee was confronted with the said information during re-assessment proceedings u/s 147 r.w.s. 143(3) of the Act. The assessee in re-assessment proceedings submitted that she is an old lady of 74 years suffering from arthritics. It was submitted that she resided in Bahrain for more than 40 years and accordingly was Non-Resident during the previous year relevant to the impugned assessment year 1996-97. It was submitted that since she was Non- resident at that time, she was under no obligation to file return of income with Revenue during the impugned assessment and hence no return of income was originally f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . No details of actual period of stay out of India and specifically during the previous year relevant to the impugned assessment year as also no details as to fulfilling of the requirements as provided under Section 6 of the Act was furnished by the assessee before the AO. It was merely stated that passport was lost and no details are available. Even , if the assessee is held to be Non Resident , then also by virtue of income received in India or deemed to be received in India or income accrued in India or income deemed to accrue or arise in India , the said income shall be taxable in India , by virtue of provisions of Section 5(2) of the Act. These aspects were not gone into by the AO and he merely accepted the contentions of the assessee without verifications and enquiry. Thus, it is a case which is not suffering from inadequate enquiry but rather the re-assessment is vitiated by complete lack of enquiry wherein the AO chose not to make any enquiry or verifications whatsoever . The AO while passing re-assessment order dated 19-03- 2014 did not made any enquiry and merely accepted the contentions of the assessee without any verification and enquiry. The re-assessment order dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of the functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by the [Principal Chief Commissioner or] Chief Commissioner or [Principal Director General or] Director General or [Principal Commissioner or] Commissioner authorised by the Board in this behalf under section 120; (b) record [shall include and shall be deemed always to have included] all records relating to any proceeding under this Act available at the time of examination by the [Principal Commissioner or] Commissioner; (c) where any order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal [filed on or before or after the 1st day of June, 1988], the powers of the [Principal Commissioner or] Commissioner under this sub-section shall extend [and shall be deemed always to have extended] to such matters as had not been considered and decided in such appeal.] [Explanation 2.-For the purposes of this section, it is hereby declared that an order passed by the Assessing Officer shall be deemed to be erroneous in so far as it is prejudicial to the interests of the revenue, if, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any other person. ] Thus, explanation 2 to Section 263(1) of the Act has introduced deeming provisions where, inter-alia, if the AO did not made the enquiries which it was required to made , the order shall be deemed to be erroneous so far as it is prejudicial to the interest of Revenue. In the instant case , the AO did not made any enquiry or verification whatsoever and accepted the contentions of the assessee. Even as to incriminating information received by AO that the assessee had an account in Switzerland with HSBC Bank at Geneva during the impugned assessment year was not enquired / verified into . The Hon ble Supreme Court in the case of Malabar Industrial Company Limited v. CIT (2000)109 Taxman 66 (SC) held that if the AO has accepted the entry in the statement of account filed by the taxpayer without making enquiry and application of mind , the said order of the AO shall be deemed to be erroneous in so far as it is prejudicial to the interest of the Revenue. In our considered opinion, the facts of the case of the instant case are similar to the facts in the case of Malabar Industrial Co. Limited(supra) whereby no enquiry/verification is made by AO whatsoever with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt year 1996-97 under consideration . Thus, keeping in view of our above detailed discussions , we uphold the order of the learned Pr. CIT passed u/s 263 of the Act setting aside the order of the AO being erroneous and prejudicial to the interest of Revenue on the above mentioned issue and to be set aside the same to the file of the AO for deciding the issue afresh , after due verifications. We order accordingly. 9. In the result, appeal filed by the assessee in ITA No. 2735/Mum/2016 for assessment year 1996-97 is dismissed. 3. The assessee has now filed this MA to rectify mistakes apparent from records u/s 254(2) of the 1961 Act by recalling the orders passed by Division Bench of the tribunal on 17-03-2017 and for fresh hearing of the appeal. It is the say of the assessee that tribunal has not considered Unit Trust of India ( which is claimed to be government documents by the assessee) application forms/ receipts filed by the assessee w.r.t. subscription of US 64 securities issued by UTI in July 1995 which were subscribed by the assessee wherein the assessee declared herself to be Non Resident in the application form filed by the assessee with UTI for allotment of U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort to prove her stay outside India for stipulated period as per conditions stipulated u/s 6 of the 1961 Act. Thus the contention of the assessee lacks merit and her contentions are rejected because the DB of the Tribunal has passed a detailed order after due application of mind wherein all the relevant contentions of the assessee were duly considered by the tribunal and these documents were not relevant to come to conclusion as to residential status of the assessee from the point of view of the 1961 Act. Scope of provisions of Section 254(2) is restricted to correction of the mistakes apparent from record and wherein in the instant case a conscious decision was taken by the DB of Tribunal which is not shown by the assesee to be a perverse view not sustainable in the eyes of law , and hence the same is not amenable to corrections within limited mandate of provisions of Section 254(2). Thus this contention of the assessee lacks merit and is hereby rejected. The assessee has also claimed in this MA that she lost her passport in 2006, but on the perusal of the records it was observed that the passport no.Z003983 which was issued on 26th December, 2006 was lost which has no relevanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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