9911796707
TMI Blog2018 (6) TMI 1547X X X X Extracts X X X X X X X X Extracts X X X X ..... der: I.T.A. No. Assessee Assessment year Issue Amount (in Rs.) 5568/Mum/2016 Shri Rahul Rajnikant Parikh 2003-04 Quantum 19,11,675 5571/Mum/2016 Shri Rahul Rajnikant Parikh 2004-05 Quantum 29,31,204 5567/Mum/2016 Shri Rahul Rajnikant Parikh 2006-07 Quantum 89,197 5570/Mum/2016 Shri Rahul Rajnikant Parikh 2007-08 Quantum 99,289 5569/Mum/2016 Shri Rahul Rajnikant Parikh 2008-09 Quantum 1,50,139 5889/Mum/2016 Shri Rahul Rajnikant Parikh 2003-04 u/s. 271(1)(c) 17,54,370 5891/Mum/2016 Shri Rahul Rajnikant Parikh 2004-05 u/s. 271(1)(c) 26,90,844 5890/Mum/2016 Shri Rahul Rajnikant Parikh 2006-07 u/s. 271(1)(c) 81,882 5892/Mum/2016 Shri Rahul Rajnikant Parikh 2007-08 u/s. 271(1)(c) 91,147 5893/Mum/2016 Shri Rahul Rajnikant Parikh 2008-09 u/s. 271(1)(c) 1,37,825 5576//Mum/2016 Kalpesh R. Jhaveri 2003-04 Quantum 19,11,081 5575/Mum/2016 Kalpesh R. Jhaveri 2004-05 Quantum 29,31,204 5574/Mum/2016 Kalpesh R. Jhaveri 2006-07 Quantum 89,197 5573/Mum/2016 Kalpesh R. Jhaveri 2007-08 Quantum 99,289 5572/Mum/2016 Kalpesh R. Jhaveri 2008-09 Quantum 1,50,139 5875// ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals have to be contested where the addition relates to undisclosed foreign assets/bank accounts. In the present case, we have noted that assessee is having foreign bank account and information thereof has been received by Indian authorities inasmuch as the assessee has used Indian address. Stashing black money in foreign bank accounts is anathema to tax authorities world over and is being vigorously enquired upon by various tax jurisdictions. In such contemporaneous scenario, by no stretch of imagination it can be said that an appeal against an adverse judgment in case the deposit of undisclosed money in foreign bank account has been filed without application of mind. Accordingly, in our considered opinion, this submission of the learned counsel of the assessee cannot be sustained. Hence, in our considered opinion, the appeal by the Revenue having been filed in accordance with the CBDT Circular in this regard is duly maintainable. 4. Since the facts are identical, we are referring to the Appeal No. 5568/Mum/2016 for the assessment year 2003-04. For the sake of convenience, we are referring to the grounds of appeal of the Revenue in this case, in quantum appeals which reads as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The Court may presume - .... (g) That evidence which could be and is no! produced would, if produced be unfavorable to the person who withholds it...... " Section 114(g) of The Indian Evidence Act. 1872, thus clearly says that the Courts can presume existence of certain facts if the person liable to produce evidence which could be and Is not produced, which if produced would have been unfavourable to the person who withholds it. 7. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) is correct in ignoring that the assessee has never disclosed the facts of his having the HSBC, Geneva Account in his Return of Income neither to the Indian Tax authorities nor to the US Tax Authorities and has not paid taxes on the credit appearing in the said HSBC. Geneva Account. 8. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) is correct in relying on the decisions in the cases of Sushila Ramaswamy vs ACIT (2010) 37 SOT 146 of Hon'ble ITA T Chennai and DCIT vs Birla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the assessment proceedings, the following queries were raised before the assessee for him to explain the source of the above deposits: (a)Explanation on the credit entries appearing with evidences. (b)Whether the HSBC, Geneva account was disclosed before the US tax authorities (c) Whether his Indian passport was used by him to open an account in HSBC, Geneva. The assessee could only produce the credit advice with regard to the first two deposits in which it is stated that the remittance was made from Habib American Bank. However, no further details were provided to explain the source of the above credits apart from the narration already appearing in the bank statement. The assessee contends that the bank itself could not provide him further details on the deposits even after an attempt was made with the bank. The assessee could not prove with documentary evidence that the deposits are not from India. The narration in the bank statement is mentioning Pearl Enterprise LLC and Exim Jewellers LLC, however the assessee has not produced the bills against which these payments were made nor the material sold. As far as the credit of USD 20000 is concerned, there is no explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the diamond industry, their deposits totaling an estimated $203 million. Of the 77 account holders, 64 are beneficial owners from 12 families and only 13 are individual account holders. (c) There is a common thread: all have bases in the Belgian city of Antwerp, the international capital of rough diamond international capital of rough diamond trade, industry sources say many Indian diamond trading families migrated to Belgium in the 1960s and 1970s. Trade in rough diamonds takes place in Antwerp, London, Tel Aviv, Dubai and, in recent years, Hong Kong while India is the global manufacturing hub, where much of the cutting and polishing is done. (d) According to data from the Gem and Jewellery Export Promotion Council (GJEPC), India imports 93.75 per cent of the 128 million carats of rough diamonds mined across the world. After cutting and polishing, the diamonds are re-exported. Most traders have relatives, or at least one relative, in India to handle operations. (e) The Indian Express visited Bharat Diamond Bourse on Mumbai's Bandra Kurta Complex, the biggest diamond trading centre in India. Here deals are struck not over stamp papers, but via firm handshakes. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HSBC, Geneva account can be deduced to be from India. This presumption is as per the provision of The Indian Evidence Act, 1872. The case of the assessee is even worse than any presumption of certain facts as it is a matter of fact that the said HSBC, Geneva account was never disclosed by the assessee in his returns of income anywhere in the world and hence taxes have never been paid on the credits as mentioned in the account. The addition for the different Ays are as under: 2003-04 Particulars Amount(Rs.) Income as per return of income 594 Add Addition as above 19,11,081 Total income 19,11,675 The addition on this account is Rs. 19,11,081/- 2004-05 Particulars Amount(Rs.) Income as per return of income 857 Add Addition as above 29,31,204 Total income 29,32,061 The addition on this account is Rs. 29,31,204/- 2006-07 Particulars Amount(Rs.) Income as per return of income 648 Add Addition as above 89,197 Total income 89,845 The addition on this account is Rs. 89,197/- 2007-08 Particulars Amount(Rs.) Income as per return of income 411 Add Addition as above 99,289 Total income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any evidence of it being received or deemed to be received or arisen in India, cannot be asked to pay tax on the same in India. Merely relying on newspaper reports all the working of a particular business as having been reported as the modus operandi would not be sufficient evidence to add income in the hands of the taxpayer. One of the grounds also taken up by the appellant with respect to this addition is that the same amount has been added in the hands of the other account holder, Kamlesh Jhaveri and surely the amount suffers from double taxation. I find that on merit in any case the said addition is not being upheld and therefore this ground is also treated as allowed. 16. Since the ld. Commissioner of Income Tax (Appeals) has deleted the quantum addition, she also deleted the penalty levied on the amount. 17. Against this order, the assessee is in appeal before us. 18. We have heard both the counsel and perused the records. We find that in this case, the assessee is a non resident staying in USA. The assessee has also submitted that in the year 2000 he surrendered his Indian nationality and accepted the citizenship of US. He was given the passport of USA and presently he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances of the case, firstly, we note that at the time of opening of the bank account in Geneva, the assessee was a US citizen and resident and he was holding a US passport. Still the assessee chose to open the account in HSBC bank account in Geneva by using the address and proof thereof by way of his Indian passport which was no longer valid when he has accepted the US nationality by surrendering Indian citizenship. Here the assessee instead of surrendering his invalid Indian passport has used it to open a bank account in HSBC bank, Geneva. Further, the assessee is not responding that this bank account has been disclosed to the US tax authorities. In such circumstances, the suspicion that the deposits in this bank account have Indian origin is not unfounded. It is because of these circumstances, that when the ld. Commissioner of Income Tax (Appeals) has affirmed the reopening, the assessee has not challenged the same before the ITAT. 22. Now coming to the merits of the addition, we find that account is in the name of three persons and the entire amount deposited has been added in the names of these two assessee's twice. If the account is in the name of three persons, how can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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