TMI Blog2014 (12) TMI 1392X X X X Extracts X X X X X X X X Extracts X X X X ..... DRA KUMAR YADAV, J.M: This appeal has been filed by the assessee against the order of Commissioner of Income Tax (Appeals)-III, Baroda, dated 28.02.2011 for A.Y. 1995-96 on the following grounds: 1. The Ld. Commissioner of Income Tax (Appeals)-III, Baroda has grossly erred in law and in facts in holding that the directions of the Hon'ble ITAT by its order in I.T.A. No. 2606/Ahd/1998 and 589/Ahd/1999 for the relevant year in deciding the appeal afresh do not entail jurisdiction to him. According to the Ld. CIT(A)-III, Baroda, the jurisdiction could be assumed only if the appellant's application was pending before the Settlement Commission. Since there was no application made by the appellant to the Settlement Commission, no valid and lawful jurisdiction could be exercised by him. The action of the Ld. CIT(A) in holding so is in defiance of the direction of the Hon'ble ITAT and that the Ld. CIT(A) ought to have decided the appeals afresh. 2. The Ld. Commissioner of Income Tax (Appeals)-III, Baroda has further erred in law and in facts in holding that the grounds of appeal as decided by his predecessor in Appeal No. CAB/IV-90/98-99 survive and that he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of construction by KPPL. A search was conducted in F.Y. 1994-95 or 23.03.1995 and seized materials contained particulars of on money' collected and its utilization amounting to ₹ 313 lakhs from F.Y. 1991-92 i.e commencement of the project. In the assessments, which followed gross amount of 'on money' collected in F.Y.1991-92 to 1994-95 was taxed as of PKKL as MOPL was held to be an agent. On the accounted receipts, a profit of 25% was estimated besides an addition of unexplained cash credit was also made based on certain entries/notings found to be recorded in loose papers. As observed from the said order of ITAT, CIT(A) held as under: (i) Profit on accounted receipts in the case of KPPL to be taxed at 10% (ii) 'On money' collected by MOPL was to be taxed in its case and of gross receipts, an abatment of 80% to be allowed towards expenses based on notings of loose papers and thus 20% of the receipts was directed to be taxed. (iii) Unexplained cash credit is directed to be deleted. Before ITAT, it was contended that cases have bearing with the case of Arpan Associates, Anay Developers Pvt Ltd. and M/s Yadav Developers. Settlement Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered the same, as Tribunal observed that in the said order in case of Arpan Associates, Anya Developers, M/s Yadav Developers associate concerns, matter was set aside to the file of Assessing Officer observing that said M/s Anya Developers and Arpan Associates have filed settlement petitions which were duly admitted and the order dated 23.04.2003 had been passed by Settlement Commission. Hence, on similar lines, having heard rival submissions, ITAT has restored the said appeals back to the file of CIT(A) to decide afresh in light of out come of order of Settlement Commission and after giving similar directions. The said directions followed on the premise that the settlement petition of M/s Kotel Properties Pvt Ltd. and M/s Madhav Organizers Pvt Ltd. are also pending before Settlement Commission and outcome of order of Settlement Commission will have important bearing on various additions which have been made in all these cases. From the operative part of the order of ITAT the jurisdiction can be assumed/exercised by the CIT(A) to decide these appeals afresh only if there is an order of Settlement Commission in the case, of KPPL MOPL but it was found that M/s Kotel Porperties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Chandrakant J Patel vs. V N Srivastava in SCA No.3193 of 2001, wherein Hon ble High Court held as under: 17. On the merits of the case as to whether the petitioner was not ordinarily resident in India , the Commissioner has by a single sentence, observed that the Assessing Officer had given the actual days of the petitioner s stay in India, and has accordingly negatived the claim of the petitioner, without entering into any discussion in respect thereof. The Apex Court in the case of Pradip J. Mehta vs. Commissioner of Income-tax, (2008) 300 ITR 231, in the context of subsection (6) of section 6 of the Act. has after referring to a circular issued by the Board, held that a person will become ordinarily resident only if (a) he has been rsiding in India in nine out of ten preceding years; and (b) he has been in India for at least 730 days in the previous seven years. Thus, if either of the aforesaid conditions re not satisfied a person would be not ordinarily resident in India. Examining the facts of the present case in the light of the aforesaid legal position, in the memo of the revision application, the petitioner has set out the details of his stay in India, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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