TMI Blog2017 (3) TMI 1638X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions of the assessee without application of mind as well without any verification/enquiry being made by the AO. Thus, in our considered view learned Pr. CIT rightly invoked provisions of Section 263. The assessee in her affidavit has averred that the assessee has filed an RTI application with FRRO on 05-11-2015 to obtain her entry into and out of India to confirm her residential staus. The assessee has also averred that she has lost her passport no Z003983 dated 26/12/2006 issued at Bahrain by Indian Consulate which was duly reported to Ministry of Interior at Kingdom of Bahrain , their certificate, but in our considered view, this is irrelevant as her residential status is to be determined u/s 6 of the Act w.r.t. previous year relevant to assessment year 1996-97 which is a relevant assessment year and any passport which is issued post this period i.e. in this case passport no Z003983 issued on 26-12-2006 is totally irrelevant to determine residential status of the assessee for assessment year 1996-97 under consideration . - Decided against assessee. - I.T.A. No.2735/Mum/2016 - - - Dated:- 17-3-2017 - SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT ME ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per claim of the assessee without any submissions by assessee with respect to stay in India during previous year relevant to the assessment year by observing as under : On going through the assessment records and the assessment order passed , it was observed that the assesse had submitted that in 2007 she lost her passport and submitted a copy of passport dated 11.12.2007 issued at Bahrain, on the observation page of which it was written: This passport is duplicate. Issued in lieu of lost passport No. Z003983 dated 26.12.2006 issued at Bahrain . Thus, no submission was made with regard to her stay in India, but the assessment was completed taking the status as Non-resident , as per the claim of the assessee. Thus, it was observed by Pr. CIT that assessment order dated 19.03.2014 passed by the AO u/s 143(3) r.w.s. 147 of the Act is erroneous and prejudicial to the interest of Revenue. The Pr. CIT issued show cause notice dated 15.02.2016 u/s 263 of the Act to the assessee , which was not replied with by the assessee. Further, notice dated 26.02.2016 was issued and served on the assessee by Pr. CIT. The assessee in response submitted before Pr. CIT , a copy of affi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous year. It was submitted that Indian passport no. Z003983 issued in Bahrain issued on 26-12-2006 by Indian Consulate , Bahrain in the name of assessee was lost in Bahrain on 02-12-2007. The learned counsel submitted that complaint was filed with Ministry of Interior, Kingdom of Bahrain on 02-12-2007 intimating loss of above passport held by assessee. The copies of certificate issued by Ministry of Interior is enclosed in paper book 20-21 filed with the tribunal.. It was submitted that new Indian passport was issued at Bahrain bearing No. F9275653 dated 11/12/2007 by Indian Consulate office which is also enclosed in paper book/page 23. The assessee has also executed affidavit dated 01-02-2015 to support its contentions and was filed before the ld Pr. CIT which is placed in paper book/page 17-18. 7. Ld CIT DR submitted that AO should have verified the contention of the assessee before accepting the same, which was not done by the AO in the instant case. It was submitted that AO merely accepted the contentions of the assessee without verification and hence re-assessment order dated 19-03- 2014 passed by the AO is erroneous so far it is prejudicial to the interest of revenue and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tentions of the assessee and accepted Non Resident status of the assessee for the relevant previous year , without any enquiry and verifications based on submissions and claims made by the assessee in her submissions before the AO, for which re-assessment order dated 19.03.2014 was passed by the AO u/s 143(3) r.ws. 147 of the Act. We have gone through the assessment order dated 19.03.2014 passed by the AO u/s 143(3) r.w.s. 147 of the Act as well submissions made by the assessee before the AO. The assessment was re-opened as information was received that assessee was holding an bank account in Switzerland with HSBC Bank at Geneva. The assessee during re-assessment proceedings did not commented whether she is holding the said bank account with HSBC, Geneva or not as no comments were offered towards the existence of said bank account. The assessee merely stated that she does not have any bank statement with her for relevant period. The assessee had contended that the assessee is Non Resident during the relevant period but no evidence was provided to that effect. It is merely stated that the assessee resided in Bahrain for last more than 40 years and being Non Resident, the assessee do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 263 of the Act which stipulates as under: E.-Revision by the [Principal Commissioner or] Commissioner Revision of orders prejudicial to revenue. 263. (1) The [Principal Commissioner or] Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the [Assessing] Officer is erroneousin so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. [Explanation 1.]-For the removal of doubts, it is hereby declared that, for the purposes of this sub-section,- (a) an order passed [on or before or after the 1st day of June, 1988] by the Assessing Officer shall include- (i) an order of assessment made by the Assistant Commissioner 2[or Deputy Commissioner] or the Income-tax Officer on the basis of the directions issued by the [Joint] Commissioner under section 144A; (ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n.-In computing the period of limitation for the purposes of sub-section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded. We have observed that w.e.f. 1st June, 2015 by Finance Bill 2015, Explanation 2 to section 263 was inserted to declare the law which reads as under:- [ 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 opinion of the Principal Commissioner or Commissioner,- ( a) the order is passed without making inquiries or verification which should have been made; (b) the order is passed allowing any relief without inquiring into the claim; (c) the order has not been made in accordance with any order, direction or instruction issued by the Board under section 119; or (d) the order has not been passed in accordance with any decision which is prejudicial to the assessee, rendered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted to have opened a bank account in Switzerland with HSBC Bank at Geneva on 15-12-1989. It is the averment of the assessee in the said affidavit that she is staying with her husband in Bahrain since 1957(pb/17) , while certificate ( pb/19) dated 12-11-2014 issued by Head of the Human and Resources Directorate had stated that her first entry to the kingdom of Bahrain was recorded on 21-07-1994 , and the impugned assessment year is 1996-97. The assessee in her affidavit has averred that the assessee has filed an RTI application with FRRO on 05-11-2015 to obtain her entry into and out of India to confirm her residential staus. The assessee has also averred that she has lost her passport no Z003983 dated 26/12/2006 issued at Bahrain by Indian Consulate which was duly reported to Ministry of Interior at Kingdom of Bahrain , their certificate is placed in page 20-21, but in our considered view, this is irrelevant as her residential status is to be determined u/s 6 of the Act w.r.t. previous year relevant to assessment year 1996-97 which is a relevant assessment year and any passport which is issued post this period i.e. in this case passport no Z003983 issued on 26-12-2006 is totally ..... X X X X Extracts X X X X X X X X Extracts X X X X
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