Mr. Iqbal Ismail Virani, Mapusa v. Income Tax Officer (International Taxation), Ward - 1, Panaji

ITA 187/PAN/2019 | 2014-2015
Pronouncement Date: 12-03-2021 | Result: Allowed

Appeal Details

RSA Number 18724114 RSA 2019
Assessee PAN ATWPV4826E
Bench Panaji
Appeal Number ITA 187/PAN/2019
Duration Of Justice 1 year(s) 9 month(s) 25 day(s)
Appellant Mr. Iqbal Ismail Virani, Mapusa
Respondent Income Tax Officer (International Taxation), Ward - 1, Panaji
Appeal Type Income Tax Appeal
Pronouncement Date 12-03-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 12-03-2021
Last Hearing Date 27-11-2020
First Hearing Date 05-03-2021
Assessment Year 2014-2015
Appeal Filed On 17-05-2019
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH PANAJI VIRTUAL COURT BEFORE SHRI INTURI RAMA RAO AM AND SHRI S. S. VISWANETHRA RAVI JM . / ITA NO.187/PAN/2019 / ASSESSMENT YEAR : 2014-15 MR. IQBAL ISMAIL VIRANI VIRANI NIWAS DR. B.R. AMBEDKAR ROAD ALTINHO MAPUSA GOA 403507. PAN: ATWPV4826E .. /APPLICANT / V/S. ITO (INTERNATIONAL TAXATION) WARD-1 PANAJI. .. / RESPONDENT ASSESSEE BY : SHRI JITENDRA JAIN REVENUE BY : SHRI PRADEEP KUMAR CIT (DR) / DATE OF HEARING : 05.03.2021 / DATE OF PRONOUNCEMENT : 12.03.2021 / ORDER PER INTURI RAMA RAO AM: THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 12 BANGALORE (CIT(A) FOR SHORT) DATED 31.03.2019 FOR THE ASSESSMENT YEAR 2014-15. 2. THE APPELLANT RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED AO AND HON. CIT(A) BANGALORE-12 ERRED IN TREATING THE INVESTMENT IN RESIDENTIAL PROPERTIES AS UNEXPLAINED INVESTMENT U/S 69 TO THE EXTENT OF RS.16 63 21 060/-. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LEARNED AO AND HON. CIT(A) BANGALORE-12 ERRED IN TREATING THE INVESTMENT AS UNEXPLAINED INVESTMENT U/S 69 TO THE EXTENT OF RS.20 99 510/-. 2 ITA NO.187/PAN/2019 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED AO AND HON. CIT BANGALORE-12 ERRED IN TREATING FUNDS TRANSFERRED THROUGH BANKING CHANNEL EARNED BY A NON-RESIDENT OUTSIDE INDIA AS UNEXPLAINED CASH CREDIT OR UNEXPLAINED INVESTMENT. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE TO LEAVE TO ADD ALTER AMEND MODIFY AND CORRECT THE GROUNDS OF APPEAL AT OR BEFORE THE TIME OF HEARING. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE APPELLANT HEREIN IS AN INDIVIDUAL AND NON-RESIDENT INDIAN. THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2014-15 WAS FILED ON 29.07.2014 DECLARING TOTAL INCOME OF RS.12 25 000/. THE APPELLANT DERIVES INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND INCOME FROM OTHER SOURCES. AGAINST THE SAID RETURN OF INCOME THE ASSESSMENT WAS COMPLETED BY THE INCOME TAX OFFICER (INTERNATIONAL TAXATION) WARD-1 PANAJI GOA (HEREINAFTER CALLED AS THE ASSESSING OFFICER) VIDE ORDER DATED 30.12.2016 PASSED U/S 143(3) OF THE INCOME TAX ACT 1961 (THE ACT) AT A TOTAL INCOME OF RS.16 75 46 060/-. WHILE DOING SO THE AO MADE ADDITION OF RS.16 42 21 550/- U/S 68 OF THE ACT AND RS.20 99 510/- U/S 69 OF THE ACT. WHILE DOING SO THE ASSESSING OFFICER MADE ADDITION OF RS.16 42 21 550/- DISBELIEVING THE EXPLANATION RENDERED BY THE APPELLANT IN SUPPORT OF SOURCES OF MONEY FOR THE ACQUISITION OF PROPERTIES I.E. (I) FLAT A-301 MATULYA CENTRE SENAPATI BAPAT MARG LOWER PAREL (WEST) MUMBAI OF RS.13 12 15 500/- ALONG WITH STAMP DUTY OF RS.73 75 000/- AND REGISTRATION CHARGES OF RS.30 980/- (II) AN AMOUNT OF RS.2 63 50 000/- WAS PAID WITH STAMP DUTY OF RS.13 17 500/- AND REGISTRATION CHARGES OF RS.32 080/- FOR THE PURPOSE OF PURCHASE OF FLAT IN JAYPRABHAT HOUSING SOCIETY LTD. ANDHERI (WEST) MUMBAI. 4. THE FACTUAL MATRIX OF THE CASE LEADING TO THE ABOVE ADDITIONS IS AS UNDER :- 3 ITA NO.187/PAN/2019 THE APPELLANT IS AN INDIVIDUAL AND NON-RESIDENT INDIAN AND IS A CITIZEN OF USA AND CARRYING ON MULTIPLE BUSINESS IN UNITED STATES OF AMERICA NAMELY JEWELLERY SHOPS HOTELS ETC. DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION THE APPELLANT HAD ACQUIRED THE TWO PROPERTIES MENTIONED BELOW IN MUMBAI IN INDIA FOR TOTAL CONSIDERATION OF RS.16 63 21 060/-. THE DETAILS OF WHICH ARE AS UNDER :- DESCRIPTION OF PROPERTY & NAME OF THE PARTY WITH WHOM TRANSACTION TAKEN PLACE NAME OF THE PARTY WITH WHOM TRANSACTION TAKEN PLACE DT. OF TRANSACTION AMOUNT OF TRANSACTION STAMP DUTY & REGISTRATION FEES PAID 1. FLAT A-301 MATULYA CENTRE SENAPATI BAPAT MARG LOWER PAREL (WEST) MUMBAI M.M. DASTUR & CO. 14-12-2013 RS.13 12 15 500 RS.73 75 000 REGN. FEE RS.30 980 2. FLAT IN JAYPRABHAT HOUSING SOCIETY LTD. ANDHERI (WEST) MUMBAI EMGEE HOMES 16-12-2013 RS.2 63 50 000 RS.13 17 500 RS.32 080 TOTAL RS.15 75 65 500 (A) RS.87 55 560 (B) TOTAL PAYMENTS (A+B)=15 75 65 500 + RS.87 55 560 =16 63 21 060 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE APPELLANT WAS CALLED UPON TO EXPLAIN THE SOURCES OF MONEY FOR INVESTMENT IN THE ABOVE PROPERTIES. INITIALLY THE APPELLANT VIDE HIS LETTER DATED 27.07.2016 EXPLAINED BY STATING THAT THE ABOVE INVESTMENTS WERE MADE OUT OF THE INCOME FROM THE BUSINESS OF JEWELLERY AND HOTEL BUSINESS CARRIED OUT IN USA ETC. ON RECEIPT OF THIS EXPLANATION THE ASSESSING OFFICER HAD FURTHER CALLED UPON THE APPELLANT VIDE LETTER DATED 24.08.2016 TO FILE THE FINANCIAL STATEMENT SHOWING THE BUSINESS TURNOVER AND COPIES OF RETURNS OF INCOME FILED IN USA ETC. IN RESPONSE OF WHICH THE APPELLANT VIDE LETTER DATED 15.09.2016 SUBMITTED AS UNDER :- AS STATED IN MY EARLIER SUBMISSION I AM NOT HAVING ANY BUSINESS ACTIVITY IN INDIA. I AM CARRYING ON MULTIPLE BUSINESSES IN UNITED STATES OF AMERICA VIZ. JEWELLERY SHOPS HOTELS ETC. THE INVESTMENTS MADE IN THE TWO PROPERTIES IN MUMBAI ARE ENTIRELY OUT OF THIS TAX PAID FOREIGN BUSINESS INCOME REMITTED THROUGH BANKING CHANNEL. I AM ASSESSED TO TAX AS RESIDENT OF USA IN USA. 4 ITA NO.187/PAN/2019 6. THEREUPON THE ASSESSING OFFICER CALLED UPON THE APPELLANT TO EXPLAIN THE SOURCES OF INVESTMENTS WITH REFERENCE TO THE FINANCIAL STATEMENT ETC AND ALSO COPIES OF RETURNS OF INCOME FILED IN USA ETC. IN RESPONSE TO WHICH THE APPELLANT HAD FILED FINANCIAL STATEMENT AND COPIES OF RETURNS OF INCOME FILED IN USA FOR THE LAST TWO YEARS. BASED ON WHICH THE ASSESSING OFFICER OBSERVED THAT THE BUSINESS IN THE EARLIER YEARS WAS NOT MAKING PROFIT. AT THIS STAGE THE APPELLANT HAD APPROACHED THE JOINT COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXATION) BENGALURU SEEKING DIRECTION U/S 144A OF THE ACT WHO IN TURN GAVE CERTAIN DIRECTIONS TO THE ASSESSING OFFICER WHICH ARE SET OUT IN PARA 3 OF THE ASSESSMENT ORDER. THE ASSESSING OFFICER WAS FURTHER DIRECTED TO SATISFY HIMSELF AS TO THE DISCHARGE OF ONUS LYING UPON THE ASSESSEE IN TERMS OF PROVISIONS OF SECTION 68 OF THE ACT. 7. THE APPELLANT VIDE LETTER DATED 27.12.2016 SUBMITTED THAT THE DETAILS OF THE REMITTANCE RECEIVED FROM ABROAD WHICH ARE UTILIZED TOWARDS THE PAYMENTS OF PURCHASE CONSIDERATION OF THE ABOVE MENTIONED PROPERTIES. THE DETAILS FURNISHED ARE SET OUT IN PARA 4 OF THE ASSESSMENT ORDER. UPON CONSIDERATION THE DETAILS THE AO HAD CALLED UPON THE APPELLANT TO EXPLAIN THE SOURCES OF CREDITS APPEARING IN ASSESSEES BANK ACCOUNT IN INDIA I.E. BANK OF INDIA UNITED BANK OF INDIA AND STATE BANK OF INDIA MAPUS GOA. 8. IN RESPONSE TO THE SAME THE APPELLANT STATED THAT THE AMOUNTS CREDITED IN THE ABOVE BANK ACCOUNTS (SUPRA) ARE REMITTANCES FROM THE APPELLANT HIMSELF FROM BANK OF BARODA DUBAI. IT WAS FURTHER SUBMITTED THAT THE CREDITS IN THE BANK ACCOUNT OF BANK OF BARODA DUBAI WERE OUT OF SALE PROCEEDS OF GOLD BARS 5 ITA NO.187/PAN/2019 AND OUT OF MATURITY PROCEEDS OF THE FDS HELD IN THE NAME ASIA PACIFIC INVESTMENTS INC. DUBAI A COMPANY OWNED BY THE APPELLANT ALONG WITH HIS WIFE. 9. BASED ON THE ABOVE INFORMATION THE ASSESSING OFFICER FORMED AN OPINION THAT THE APPELLANT HAD FAILED TO DISCHARGE THE ONUS CAST UPON HIM IN TERMS OF THE PROVISIONS OF SECTION 68 OF THE ACT AND THE ASSESSING OFFICER HAD DISBELIEVED THE EXPLANATION OF THE APPELLANT THAT THE APPELLANT HAD SOLD GOLD BARS IN DUBAI TO TWO COMPANIES NAMELY SHANTILAL JEWELLERS AND VIN GOLD L.L.C. DUBAI BY OBSERVING THAT THE ACTIVITY OF SELLING GOLD IN DUBAI IS UNUSUAL AND THERE IS NO PROOF OF EXISTENCE OF STOCK OF GOLD IN DUBAI. AS REGARDS TO CREDIT OF MATURITY PROCEEDS OF FDS OF COMPANY I.E. ASIA PACIFIC INVESTMENT INC DUBAI TO THE ACCOUNT OF BANK OF BARODA DUBAI THE APPELLANT HAD FILED COPY OF CERTIFICATE INCORPORATION OF THE SAID COMPANY IN 2007 AND COPY OF THE CERTIFICATE FROM BANK OF BARODA CERTIFYING THAT AN AMOUNT OF AED 99 83 455 EQUIVALENT TO RS.16 97 18 735/- WAS CREDITED ON 09.12.2013 TO THE ACCOUNT OF IQBAL VIRANI AND NIKITA VIRANI. THE ASSESSING OFFICER HAD HELD THAT THE SAID CERTIFICATES ARE NOT RELIABLE AS THEY WERE NOT SIGNED BY THE DIRECTOR AND ACCORDINGLY REJECTED THE EXPLANATION. THE ASSESSING OFFICER FURTHER HELD THAT SINCE HE HAD NOT PAID TAXES IN USA FOR LAST TWO ASSESSMENT YEARS I.E. ASSESSMENT YEAR 2013-14 THE APPELLANT HAD NOT GENERATED ENOUGH INCOME TO MAKE INVESTMENT IN ASIA PACIFIC INVESTMENT INC. DUBAI. CITING THE ABOVE CIRCUMSTANCES HE DISBELIEVED THE EXPLANATION RENDERED BY THE APPELLANT IN SUPPORT OF THE SOURCE OF MONEY FOR ACQUISITION OF ABOVE TWO MENTIONED PROPERTIES. ACCORDINGLY THE ASSESSING OFFICER BROUGHT TO TAX A SUM OF RS.16 42 21 550/- U/S 68 OF THE ACT AND A SUM 6 ITA NO.187/PAN/2019 OF RS.20 99 510/- U/S 69 OF THE ACT. THE ASSESSING OFFICER ALSO RELYING UPON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. K. CHINNATHAMBAN 292 ITR 682 AND THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF MANOJ AGARWAL VS. DCIT 113 ITD 337 HELD THAT THE CASH DEPOSIT IN THE BANK SHOULD BE EXPLAINED BY THE ASSESSEE OTHERWISE IT IS UNEXPLAINED INCOME U/S 68 AND SECTION 69 OF THE ACT. 10. BEING AGGRIEVED BY THE ABOVE ASSESSMENT ORDER THE APPELLANT CARRIED THE MATTER BEFORE THE LD. CIT(A) CONTENDING THAT THE ASSESSING OFFICER OUGHT NOT TO HAVE REJECTED THE EXPLANATION TENDERED IN SUPPORT OF THE SOURCES OF MONEY FOR ACQUISITION OF THE PROPERTIES. HOWEVER THE LD. CIT(A) HAD CONFIRMED THE ACTION OF THE ASSESSING OFFICER CONSIDERING THE EVIDENCE FILED BEFORE HIM IN SUPPORT OF THE SOURCES OF MONEY FOR ACQUISITION OF THE PROPERTIES AND WITHOUT ASSIGNING ANY INDEPENDENT REASONS FROM THAT OF THE ASSESSING OFFICER. 11. BEING AGGRIEVED THE APPELLANT IS BEFORE US IN THE PRESENT APPEAL. 12. THE LD. COUNSEL SUBMITTED THAT THE FINDINGS OF THE LOWER AUTHORITIES ARE BASED ON THE MERE SURMISES PRESUMPTIONS. THE EXPLANATION OFFERED IN SUPPORT OF THE SOURCES OF MONEY FOR THE ACQUISITION OF PROPERTIES CANNOT BE REJECTED WITHOUT GIVING ANY COGENT REASONS. HE FURTHER SUBMITTED THAT THE APPELLANT HAD LED COMPLETE EVIDENCE IN SUPPORT OF THE SOURCES OF MONEY TO ACQUIRE THE PROPERTIES IN INDIA. HE TOOK US THROUGH THE SUBMISSIONS FILED BEFORE THE ASSESSING OFFICER AS WELL AS THE CIT(A). IT IS SUBMITTED THAT THE APPELLANT HAD ACQUIRED TWO PROPERTIES IN MUMBAI FOR A TOTAL CONSIDERATION OF 7 ITA NO.187/PAN/2019 RS.16.63 CRORES. THE ENTIRE CONSIDERATION FOR ACQUISITION OF THE TWO PROPERTIES WAS PAID BY WAY OF CHEQUES OR THROUGH BANKING CHANNELS. THE SOURCES OF THESE FUNDS WERE REMITTANCES BY THE APPELLANT HIMSELF THROUGH BANKING CHANNELS FROM BANK OF BARODA DUBAI. HE TOOK US THROUGH THE DETAILS FURNISHED BEFORE THE LOWER AUTHORITIES WHEREIN THE EXPLANATION WAS GIVEN IN SUPPORT OF THE SOURCES OF MONEY FOR THE ACQUISITION OF PROPERTIES NAMELY (I) UNIT NO.3 GROUND FLOOR THE LINK JAYAPRABHAT CO-OP. HOUSING SOCIETY LTD. SAHAKAR NAGAR ANDHERI WEST MUMBAI OF RS.2 63 50 000/- OTHER EXPENSES ON REGISTRATION ETC. OF RS.13 17 500/- + RS.32 080/- TOTALLING TO RS.2 76 99 580/- AND (II) FLAT NO. A-301 MATULYA CENTRE-A 249 SENAPATI BAPAT MARG LOWER PAREL (W) MUMBAI OF RS.13 12 15 500/- OTHER EXPENSES ON REGISTRATION ETC. OF RS.73 75 000/- + RS.30 980/- TOTALLING TO RS.13 86 21 480/-. FURTHER HE TOOK US THROUGH THE PAPER BOOK PAGE NO.19 WHICH EXPLAINS THE SOURCES AND MODE OF DISCHARGE OF THE PURCHASE CONSIDERATION FOR THE ACQUISITION OF THE SAID PROPERTIES. FROM THE DETAILS MENTIONED IN THAT PAGE IT IS EVIDENT THAT AN AMOUNT OF RS.2 11 00 000/- WAS PAID TO THE SELLERS BY WAY OF SWIFT REMITTANCE FROM NEW JERSEY USA ON 11.12.2013 AND RS.52 50 000/- WAS PAID BY THE LEGAL CONSULTANTS M/S. M AND M LEGAL VENTURES ON 11.12.2013 OUT OF A SUM OF RS.1 CRORE REMITTED TO THEM BY THE APPELLANT THROUGH REMITTANCE FROM BANK OF BARODA DUBAI VIDE REFERENCE NO.033MSOG1333902T9. THE MONEY TOWARDS STAMP DUTY AND REGISTRATION CHARGES ETC WAS PAID FROM THE FUNDS LYING TO THE CREDIT OF SBI NRE SB A/C 11020405694. IN SUPPORT OF THIS REMITTANCE HE ALSO FILED THE COPIES OF THE ADVICE ISSUED BY THE RESPECTIVE BANKS PLACED AT PAGE NO.127 TO 129 OF THE PAPER BOOK. HE ALSO FILED THE COPIES OF REMITTANCE IN SUPPORT OF THE TRANSFER OF FUNDS OF RS.1 CRORE TO M/S. M AND M LEGAL VENTURES 8 ITA NO.187/PAN/2019 PLACED AT PAGE NO.141 OF THE PAPER BOOK. IN SUPPORT OF TRANSFER OF FUNDS FROM SBI NRE ACCOUNT HE PLACED BEFORE US THE COPY OF THE PAYMENT RECEIPT ISSUED BY THE DEVELOPERS I.E. M/S. M AND M LEGAL VENTURES. 13. AS REGARDS THE SOURCES FOR ACQUISITION OF PROPERTY UNIT NO.3 GROUND FLOOR THE LINK JAYAPRABHAT CO-OP. HOUSING SOCIETY LTD. SAHAKAR NAGAR ANDHERI WEST MUMBAI IT IS SUBMITTED THAT THE SAID PROPERTY WAS ACQUIRED FROM M.N. DASTUR AND CO. PVT. LTD. VIDE AGREEMENT DATED 14.12.2013 (PAPER BOOK PAGE NO.142) FOR TOTAL PURCHASE OF RS.13 86 21 480/- BREAKUP OF WHICH IS AS UNDER :- (I) PURCHASE CONSIDERATION - RS.13 12 15 500.00 (II) STAMP DUTY - RS.73 75 000.00 (III) REGISTRATION CHARGES - RS.30 980/- 14. THE ABOVE PURCHASE CONSIDERATION WAS STATED TO HAVE BEEN DISCHARGED BY THE APPELLANT AS UNDER :- DATE OF PAYMENTS AMOUNT (RS.) DETAILS OF PAYMENTS 23 - OCT - 13 1 31 21 550.00 RS.1 31 21 550/ - PAID THROUGH SWIFT REMITTANCE FROM DUBAI UAE VIDE REFERENCE NO.9001ORTT2080513 TO LEGAL CONSULTANTS M/S. M AND M LEGAL VENTURES CLIENT ACCOUNT AND THEREAFTER REMITTED TO M.N. DASTUR AND CO. (VENDOR). 12 - DEC - 13 73 75 000.00 STAMP DUTY PAID THROUGH SBI - MAPUSA NRE A/C NO.11020405694 14 - DEC - 13 11 67 81 7 95.00 RS.11 67 81 795/ - PAID THROUGH SBI - MAPUSA NRE SB A/C NO.11020405694 OUT OF REMITTANCE THROUGH BANK OF BARODA DUBAI 16 - DEC - 13 30 980.00 PAID OUT OF CASH IN HAND. 7 - JAN - 14 13 12 155.00 RS.13 12 155/ - TDS DEDUCTED AND PAID ON 07.01.2014 THROUGH SBI-MAPUSA NRE A/C NO.11020405694. 13 86 21 480.00 9 ITA NO.187/PAN/2019 15. IT IS STATED BEFORE US THAT ON 23.10.2013 THE APPELLANT TRANSFERRED A SUM OF RS.1 31 21 550/- TO ITS LEGAL CONSULTANTS NAMELY M/S. M AND M LEGAL VENTURES BY SWIFT REMITTANCE FROM BANK OF BARODA DUBAI WHO IN TURN TRANSFERRED THE MONEY TO M.N. DASTUR AND CO. (VENDOR). THE PROOF OF THE SAID SWIFT REMITTANCE FROM THE BANK IS PLACED BEFORE US VIDE PAGE NO.207 OF THE PAPER BOOK AND THEN ON 12.12.2013 AN AMOUNT OF RS.73 75 000/- WAS PAID FROM SBI-MAPUSA NRE A/C NO.11020405694. ON 14.12.2013 A SUM OF RS.11 67 81 795/- WAS PAID FROM SBI-MAPUSA GOA. IT IS FURTHER STATED THAT THE APPELLANT HAD REMITTED A SUM OF RS.12 CRORES TO SBI MAPUSA GOA NRE A/C NO.11020405694 BY WAY OF NEFT FROM BANK OF BARODA DUBAI. THE CONFIRMATION TO THIS EFFECT FROM THE STATE BANK OF INDIA MAPUSA BRANCH WAS ALSO FILED AT PAGE NO.224 OF THE PAPER BOOK. THE APPELLANT ALSO FURTHER EXPLAINED THAT THE SOURCE OF CREDITS APPEARING IN THE BANK OF BARODA DUBAI THE COPY OF THE STATEMENT IS PLACED AT PAGE NO.216 OF THE PAPER BOOK. IT IS STATED THAT A SUM OF AED 99 83 455 WAS CREDITED TO THE SAID ACCOUNT ON 09.12.2013 OUT OF THE CLOSURE PROCEEDS OF FDS HELD IN THE NAME OF ONE COMPANY LIKE ASIA PACIFIC INVESTMENTS INC. DUBAI WHICH IS OWNED BY THE APPELLANT ALONG WITH HIS WIFE. THE CONFIRMATION FROM THE BANK OF BARODA DUBAI IS ALSO PLACED AT PAGE NO.219 OF THE PAPER BOOK. FURTHER IT WAS EXPLAINED THAT ON 21.10.2013 A SUM OF AED 3 67 000 AND AED 4 30 000 WAS DEPOSITED TO THE CREDIT OF THE SAID ACCOUNT OUT OF THE SALES PROCEEDS OF GOLD BAR TO SHANTILAL & CO. DUBAI COPIES OF CHEQUES ISSUED BY THE SAID SHANTILAL & CO. AND COPY OF INWARD DEPOSIT SLIPS WERE ALSO PLACED AT PAGE NO.217 AND 218 OF THE PAPER BOOK. IT WAS FURTHER EXPLAINED THAT ON 10.12.2013 A SUM OF AED 55 00 000 WAS DEPOSITED IN BANK OF BARODA DUBAI BEING SALE PROCEEDS OF GOLD 10 ITA NO.187/PAN/2019 BARS RECEIVED FROM VIN GOLD LLC DUBAI COPIES OF PURCHASE INVOICE CURRENCY PAYMENT ISSUED BY VIN GOLD LLC DUBAI WERE PLACED AT PAGE NO.132 TO 137 OF THE PAPER BOOK. IT IS SUBMITTED THAT THE AGGREGATE OF THE AFORESAID DEPOSITS WORKS OUT TO A SUM OF AED 1 62 80 455/- WHICH WORKS OUT TO INDIAN RS.26 CRORES. OUT OF THE SAID AMOUNTS SO CREDITED A SUM OF RS.12 CRORES WAS UTILIZED FOR THE PURPOSE OF REMITTANCE TO SBI-MAPUSA NRE SB A/C NO.11020405694 HELD BY THE APPELLANT. 16. IT IS SUBMITTED THAT THE APPELLANT HAD BEEN CARRYING ON THE BUSINESS OF THE JEWELLERY HOTEL IN USA FOR THE LAST 30 YEARS. SIMPLY BECAUSE HE INCURRED LOSSES FOR LAST TWO PRECEDING YEARS DOES NOT MEAN THAT HE DOES NOT HAVE MEANS OF MAKING REMITTANCE TO IN INDIA. HE FURTHER SUBMITTED THAT THE APPELLANT HAD FULLY EXPLAINED WITH EVIDENCE THE SOURCE OF MONEY FOR THE ACQUISITION OF PROPERTIES IN INDIA. THE EXPLANATION RENDERED BY THE APPELLANT CANNOT HELD TO BE UNREASONABLE AND NOT PLAUSIBLE. FINALLY HE SUBMITTED THAT THE LOWER AUTHORITIES HAD FAILED TO APPRECIATE THE EVIDENCES AND EXPLANATION IN PROPER PERSPECTIVE INSTEAD HAD CHOSEN TO MAKE ADDITION IN ARBITRARY MANNER WITHOUT GIVING COGENT REASONS AS TO WHY THE EXPLANATION DESERVES TO BE REJECTED. HE FINALLY SUBMITTED THAT NO ADDITION U/S 68 AND SECTION 69 OF THE ACT CAN BE MADE IN THE HANDS OF THE NON-RESIDENT ON ACCOUNT OF FOREIGN REMITTANCE RECEIVED IN INDIA IN THE ABSENCE OF ANY ALLEGATION ROUND-TRIPPING OF MONEY AND RELIANCE IN THIS REGARD WAS PLACED AS FOLLOWS :- I. DCIT V. MADHUSUDAN RAO 57 TMC 262 (HYD). (SEE PGS 304-305 PARAS 10 11 AND PG 307-309 PARAS 16 TO 19 OF THE PAPER BOOK). II. SMT. SUSILA RAMASAMY V. ACIT 37 SOT 146 (CHENNAI). (PG313 OF THE PAPER BOOK PARA 10 TO 18.) 11 ITA NO.187/PAN/2019 III. DCIT V. HEMANT PANDYA 100 TMC 280 (MUMBAI). (PG334 OF THE PAPER BOOK PARAS 16 TO 18). IV. DCIT V. FINLAY CORPORATION 86 ITD 626 (DEL). (PG 340-342 OF THE PAPER BOOK PARAS 11 TO 16). V. PURSHOTTAM KHATRI V. CIT 419 ITR 475 (SC). 17. ON THE OTHER HAND LD. CIT-DR SUBMITTED THAT NO CREDENCE CAN BE GIVEN FOR THE EXPLANATION IN SUPPORT OF THE SOURCES FOR MONEY FOR ACQUISITION OF THE ABOVE PROPERTIES IN INDIA IN VIEW OF THE FACT THAT THE APPELLANT HAD FILED USA TAX RETURNS DISCLOSING LOSS IN THE BUSINESS CARRIED ON BY THE APPELLANT IN USA. HE FURTHER SUBMITTED THAT THE APPELLANT HAD FAILED TO PROVIDE ANY DOCUMENTARY EVIDENCE IN SUPPORT OF THE MONEY DEPOSITED IN BANK OF BARODA DUBAI OUT OF THE SALE OF GOLD BARS AND ALSO THE APPELLANT HAD FAILED TO PROVE THE SOURCES OF THE FUNDS OF ASIA PACIFIC INVESTMENT INC DUBAI. IN THE ABSENCE OF THE SAME THE LD. CIT(A) WAS JUSTIFIED IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER. IN THE CIRCUMSTANCES HE PRAYED THAT THE ORDER OF THE LD. CIT(A) BE UPHELD. 18. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT APPEAL RELATES TO WHETHER OR NOT THE EXPLANATION TENDERED IN SUPPORT OF THE SOURCES OF MONEY FOR INVESTMENTS IN ACQUISITION OF TWO PROPERTIES AT MUMBAI CAN BE TREATED AS EXPLAINED. THERE IS NO DISPUTE ABOUT THE FACT THAT DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION THE APPELLANT HAD ACQUIRED TWO RESIDENTIAL PROPERTIES AT MUMBAI FOR TOTAL CONSIDERATION OF RS.16 63 21 060/-. IT IS ADMITTED POSITION THAT THE PURCHASE CONSIDERATION WAS DISCHARGED BY THE APPELLANT PARTLY BY WAY OF DIRECT 12 ITA NO.187/PAN/2019 REMITTANCE FROM ABROAD TO THE VENDOR AND PARTLY PAID THROUGH BANKING CHANNEL FROM SBI-MAPUSA NRE SB A/C NO.11020405694 HELD BY THE APPELLANT. THE APPELLANT ALSO EXPLAINED BEFORE THE ASSESSING OFFICER AS WELL AS THE CIT(A) AS TO THE SOURCES OF CREDITS APPEARING IN THE ACCOUNT OF SBI NRE ACCOUNT MAPUSA GOA HELD JOINTLY BY THE APPELLANT AND ALONG WITH HIS WIFE. IT IS STATED THAT THE FUNDS WERE REMITTED FROM THE BANK OF BARODA DUBAI ACCOUNT HELD BY THE APPELLANT TO THE SAID SBI MAPUSA GOA NRE SB ACCOUNT. THE APPELLANT ALSO FILED EXPLANATION AS TO SOURCES OF CREDITS APPEARING IN THE ACCOUNT HELD WITH BANK OF BARODA DUBAI. IT WAS EXPLAINED THAT THE SOURCES FOR DEPOSIT IN THE BANK OF BARODA DUBAI WAS SALE PROCEEDS OF GOLD BARS AND MATURITY PROCEEDS OF FDS BELONGING TO THE ASIA PACIFIC INVESTMENTS INC A COMPANY WHICH IS OWNED BY THE APPELLANT ALONG WITH HIS WIFE. THE APPELLANT ALSO ADDUCED EVIDENCE IN THE FORM OF THE COPIES OF THE INVOICES IN SUPPORT OF THE SALE OF GOLD COPIES OF CHEQUES ISSUED BY THE BUYER OF THE GOLD BAR. THE APPELLANT ALSO FILED CONFIRMATION LETTER FROM BANK OF BARODA THAT THE CREDIT OF THE AED 99 83 455 APPEARING IN THE ACCOUNT OF BANK OF BARODA DUBAI REPRESENTS MATURITY PROCEEDS OF THE FDS HELD IN THE NAME OF ASIA PACIFIC INVESTMENTS INC. 19. FROM THE ABOVE FACTS IT IS CLEAR THAT THE PURCHASE CONSIDERATION WAS PAID BY WAY OF REMITTANCES FROM THE BANK ACCOUNT BANK OF BARODA DUBAI HELD BY THE APPELLANT. A SUM OF RS.12 CRORES WAS TRANSFERRED FROM THE BANK OF BARODA DUBAI TO THE ACCOUNT OF THE APPELLANT SBI-MAPUSA NRE SB ACCOUNT GOA BRANCH FROM WHERE THE CONSIDERATION WAS PAID TO THE VENDORS OF THE PROPERTIES. 13 ITA NO.187/PAN/2019 20. IT IS TRITE LAW THAT THE UNEXPLAINED CASH DEPOSITS/CREDITS IN BANK ACCOUNTS IF ANY CAN BE ASSESSED ONLY UNDER THE PROVISIONS OF SECTION 69 OF THE ACT AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. K. CHINNATHAMBAN 292 ITR 682 AS WELL AS THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. BHAICHAND H. GHANDHI 141 ITR 67. THE HONBLE JURISDICTIONAL HIGH COURT HELD THAT THE BANK PASSBOOK SUPPLIED BY THE BANK CANNOT BE HELD TO BE BOOKS OF ACCOUNT OF THE ASSESSEE AND THEREFORE THE UNEXPLAINED CREDITS IN THE BANK PASSBOOK CANNOT BE ASSESSED U/S 68 OF THE ACT. THEREFORE THE ADDITION IF AT ALL IS REQUIRED TO BE MADE FOR ANY UNEXPLAINED CREDITS IN THE BANK PASSBOOK IT CAN BE ONLY MADE UNDER THE PROVISIONS OF SECTION 69/69A OF THE ACT. ON MERE READING OF THE PROVISIONS OF SECTION 69/69A OF THE ACT IT IS CLEAR THAT IT PROVIDES RATHER CONFERS DISCRETION ON THE ASSESSING OFFICER IN CASE OF SOURCES OF INVESTMENT HAS NOT BEEN SATISFACTORILY EXPLAINED BY THE ASSESSEE AS INCOME OF AN ASSESSEE AS THE PARLIAMENT USED THE WORD MAY. THEREFORE EVEN IF THE ASSESSEES EXPLANATION REGARDING SOURCE OF INVESTMENT IS NOT FOUND TO BE SATISFACTORY IN THE OPINION OF THE ASSESSING OFFICER THE AO HAS DISCRETION TO TREAT OR NOT TO TREAT SUCH INVESTMENT IS ASSESSEES INCOME. IN THIS REGARD THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. SMT. P. K. NOORJAHAN 237 ITR 570 CAN BE RELIED UPON. THE RELEVANT OBSERVATION OF HONBLE APEX COURT IS EXTRACTED BELOW :- 2. ........... THE TRIBUNAL TOOK THE VIEW THAT ALTHOUGH THE EXPLANATION OF THE ASSESSEE WAS LIABLE TO BE REJECTED. SECTION 69 OF THE ACT CONFERRED ONLY A DISCRETION ON THE INCOME-TAX OFFICER TO DEAL WITH THE INVESTMENT AS INCOME OF THE ASSESSEE AND THAT IT DID NOT MAKE IT MANDATORY ON HIS PART TO DEAL WITH THE INCOME/AS INCOME OF THE ASSESSEE AS SOON AS THE LATTER'S EXPLANATION HAPPENED TO BE REJECTED. ON THAT VIEW THE TRIBUNAL ALLOWED THE APPEALS OF THE ASSESSEE AND CANCELLED THE ASSESSMENT MADE BY THE INCOME-TAX OFFICER. THEREAFTER THE TRIBUNAL AT THE INSTANCE OF THE REVENUE REFERRED THE QUESTION ABOVEMENTIONED TO THE HIGH COURT FOR ITS OPINION. THE HIGH COURT HAS AGREED WITH THE SAID VIEW OF THE 14 ITA NO.187/PAN/2019 TRIBUNAL AND HAS HELD THAT IN THE INSTANT CASE IT COULD NOT BE SAID THAT THE TRIBUNAL WAS WRONG IN HAVING DIFFERED FROM THE INCOME-TAX OFFICER AND THE APPELLATE ASSISTANT COMMISSIONER IN THE MATTER OF EXERCISING JUDICIAL DISCRETION AS TO WHETHER EVEN AFTER REJECTING THE EXPLANATION OF THE ASSESSEE THE VALUE OF THE INVESTMENTS WERE TO BE TREATED AS THE INCOME OF THE ASSESSEE. ACCORDING TO THE HIGH COURT THE TRIBUNAL HAD NOT COMMITTED ANY ERROR IN TAKING INTO ACCOUNT THE COMPLETE ABSENCE OF RESOURCES OF THE ASSESSEE AND ALSO THE FACT THAT HAVING REGARD TO HER AGE AND THE CIRCUMSTANCES IN WHICH SHE WAS PLACED SHE COULD NOT BE CREDITED WITH HAVING MADE ANY INCOME OF HER OWN AND IN THESE CIRCUMSTANCES THE TRIBUNAL WAS RIGHT IN REFUSING TO MAKE AN ADDITION OF THE VALUE OF THE INVESTMENTS TO THE INCOME OF THE ASSESSEE. 3. SHRI RANBIR CHANDRA THE LEARNED COUNSEL APPEARING FOR THE REVENUE HAS URGED THAT THE TRIBUNAL AS WELL AS THE HIGH COURT WERE IN ERROR IN THEIR INTERPRETATION OF SECTION 69 OF THE ACT. THE SUBMISSION IS THAT ONCE THE EXPLANATION OFFERED BY THE ASSESSEE FOR THE SOURCES OF THE INVESTMENTS FOUND TO BE NON-ACCEPTABLE THE ONLY COURSE OPEN TO THE INCOME-TAX OFFICER WAS TO TREAT THE VALUE OF THE INVESTMENTS TO BE THE INCOME OF THE ASSESSEE. THE SUBMISSION IS THAT THE WORD 'MAY' IN SECTION 69 SHOULD BE READ AS 'SHALL'. WE ARC UNABLE TO AGREE. AS POINTED OUT BY THE TRIBUNAL IN THE CORRESPONDING CLAUSE IN THE BILL WHICH WAS INTRODUCED IN PARLIAMENT THE WORD 'SHALL' HAD BEEN USED BUT DURING THE COURSE OF CONSIDERATION OF THE BILL AND ON THE RECOMMENDATION OF THE SELECT COMMITTEE THE SAID WORD WAS SUBSTITUTED BY THE WORD 'MAY'. THIS CLEARLY INDICATES THAT THE INTENTION OF PARLIAMENT IN ENACTING SECTION 69 WAS TO CONFER A DISCRETION ON THE INCOME-TAX OFFICER IN THE MATTER OF TREATING THE SOURCE OF INVESTMENT WHICH HAS NOT BEEN SATISFACTORILY EXPLAINED BY THE ASSESSEE AS THE INCOME OF THE ASSESSEE AND THE INCOME-TAX OFFICER IS NOT OBLIGED TO TREAT SUCH SOURCE OF INVESTMENT AS INCOME IN EVERY CASE WHERE THE EXPLANATION OFFERED BY THE ASSESSEE IS FOUND TO BE NOT SATISFACTORY. THE QUESTION WHETHER THE SOURCE OF THE INVESTMENT SHOULD BE TREATED AS INCOME OR NOT UNDER SECTION 69 HAS TO BE CONSIDERED IN THE LIGHT OF THE FACTS OF EACH CASE. IN OTHER WORDS A DISCRETION HAS BEEN CONFERRED ON THE INCOME-TAX OFFICER UNDER SECTION 69 OF THE ACT TO TREAT THE SOURCE OF INVESTMENT AS THE INCOME OF THE ASSESSEE IF THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT FOUND SATISFACTORY AND THE SAID DISCRETION HAS TO BE EXERCISED KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PARTICULAR CASE. 4. IN THE INSTANT CASE THE TRIBUNAL HAS HELD THAT THE DISCRETION HAD NOT BEEN PROPERLY EXERCISED BY THE INCOME-TAX OFFICER AND THE APPELLATE ASSISTANT COMMISSIONER IN TAKING INTO ACCOUNT THE CIRCUMSTANCES IN WHICH THE ASSESSEE WAS PLACED AND THE TRIBUNAL HAS FOUND THAT THE SOURCES OF INVESTMENTS COULD NOT BE TREATED AS INCOME OF THE ASSESSEE. THE HIGH COURT HAS AGREED WITH THE SAID VIEW OF THE TRIBUNAL. WE ALSO DO NOT FIND ANY ERROR IN THE SAID FINDING RECORDED BY THE TRIBUNAL. THERE IS THUS NO MERIT IN THESE APPEALS AND THE SAME ARE ACCORDINGLY DISMISSED. NO ORDER AS TO COSTS. 21. WHAT FOLLOWS FROM THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF P. K. NOORJAHAN (SUPRA) IS THAT ONCE AN ASSESSEE OFFERS A CREDIBLE EXPLANATION AS TO THE SOURCES OF MONEY FOR THE ACQUISITION OF PROPERTY NO ADDITION CAN BE 15 ITA NO.187/PAN/2019 MADE. THE INITIAL BURDEN OF PROVING THE NATURE AND SOURCE OF INVESTMENT LIES UPON THE ASSESSEE ONCE THE ASSESSEE FILES AN EXPLANATION WITH EVIDENCE AS TO SOURCE OF MONEY OUT OF WHICH THE PROPERTIES WERE ACQUIRED THE BURDEN LYING UPON THE ASSESSEE STANDS DISCHARGED. IT IS OPEN FOR THE DEPARTMENT TO REBUT CONTROVERT THE EXPLANATION BY LEADING NECESSARY EVIDENCE IN REBUTTAL. IN THE PRESENT CASE THE ASSESSING OFFICER HAD NOT LED ANY MATERIAL ON RECORD IN REBUTTAL OF EVIDENCE LED BY THE ASSESSEE. 22. TO THE SAME EFFECT THE DECISIONS OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF BABULAL BORANA VS. CIT 282 ITR 251 THE HONBLE MADRAS HIGH COURT IN THE CASE OF K.K. SESHAIYER VS. CIT 246 ITR 351 AND THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. LA MEDICA 250 ITR 575. 23. IN THE BACKGROUND OF THE ABOVE LEGAL POSITION DISCUSSED THEREFORE THE QUESTION THAT REQUIRES TO BE EXAMINED IS WHETHER THE SOURCES OF INVESTMENTS IN THE SAID TWO PROPERTIES HAD BEEN SATISFACTORILY EXPLAINED OR NOT BY THE APPELLANT HEREIN. AS NOTED BY US (SUPRA) THE SOURCES OF THE INVESTMENT HAVE BEEN DULY EXPLAINED BY THE APPELLANT BEFORE THE ASSESSING OFFICER AS WELL AS THE CIT(A). IN FACT THE APPELLANT ALSO EXPLAINED THE SOURCES OF SOURCE OF THE INVESTMENT BY EXPLAINING THAT THE CREDITS APPEARING IN THE BANK ACCOUNT OF BANK OF BARODA DUBAI FROM WHERE THE REMITTANCES HAVE BEEN MADE TO THE SBI NRE SB ACCOUNT MAPUSA GOA. THE ASSESSING OFFICER MERELY REJECTED THE EXPLANATION GIVEN FOR THE SOURCES OF DEPOSIT IN BANK OF BARODA DUBAI BY HOLDING THAT THE MATURITY PROCEEDS OF ASIA PACIFIC INVESTMENTS INC IN WHICH THE APPELLANT ALONG WITH HIS WIFE SMT. RESHMA VIRANI WERE DIRECTOR OF THE SAID 16 ITA NO.187/PAN/2019 COMPANY ON THE GROUND THAT NOT RELIABLE AS THE COPIES OF CERTIFICATE OF INCORPORATION OF THE SAID COMPANY AND COPIES OF THE BANK OF BARODA CERTIFYING THAT THE CREDITS REPRESENTS MATURITY PROCEEDS OF FDS OF ASIA PACIFIC INVESTMENTS INC WERE NOT SIGNED BY THE DIRECTOR. AS REGARDS TO THE CREDITS APPEARING IN THE BANK OF BARODA DUBAI STATED TO BE ON ACCOUNT OF SALE OF GOLD BARS TO TWO COMPANIES NAMELY (I) SHANTILAL & CO. DUBAI AND (II) VIN GOLD LLC DUBAI THE AO REJECTED THE EXPLANATION BY HOLDING THAT THE APPELLANT HAD FAILED TO PROVE THE EXISTENCE OF GOLD SOLD IN THE ACCOUNTED STOCK OF THE ASSESSEE. EVEN THE LD. CIT(A) CONFIRMED THE FINDINGS OF THE ASSESSING OFFICER BY HOLDING THAT NO EVIDENCE IN SUPPORT OF THE CASE WAS LED BEFORE HIM. ON CONSIDERATION OF TOTALITY OF THE CIRCUMSTANCES AND EVIDENCE FILED BEFORE US WE ARE OF THE CONSIDERED OPINION THAT THE CONCLUSION REACHED BY BOTH THE ASSESSING OFFICER AND THE LD. CIT(A) ARE BASED ON MERE IPSE DIXIT AND BASED ON CONJECTURES SURMISES AND PRESUMPTIONS. THE APPELLANT HAD DISCHARGED THE PRIMARY ONUS LYING UPON IT BY EXPLAINING THE SOURCES OF THE DEPOSITS CREDITS IN BANK OF BARODA DUBAI FROM WHERE THE REMITTANCES WERE BROUGHT TO IN INDIA BY LEADING EVIDENCE SUCH AS CONFIRMATION FROM THE BANK OF BARODA DUBAI BRANCH THAT THE DEPOSITS REPRESENT MATURITY PROCEEDS OF FDS HELD IN THE NAME OF ASIA PACIFIC INVESTMENTS INC AND SALE OF GOLD BARS TO TWO COMPANIES BY FILING EVIDENCE SUCH AS PURCHASE INVOICES OF GOLD BY THE TWO COMPANIES AND AS WELL AS COPIES OF CHEQUES ISSUED IN FAVOUR OF THE APPELLANT ETC. BOTH THE AO AS WELL AS LD. CIT(A) MERELY REJECTED THE EXPLANATION TENDERED WITHOUT GIVING ANY COGENT REASONS WITHOUT REBUTTING THE EVIDENCE LED BY THE APPELLANT. THE REASONS ASSIGNED BY THE AO FOR REJECTION OF THE EXPLANATION ARE IN THE REALM OF SURMISES AND CONJECTURES AND PRESUMPTIONS. IN THE CIRCUMSTANCES IT CANNOT BE SAID 17 ITA NO.187/PAN/2019 THAT THE APPELLANT HAD FAILED TO RENDER A PLAUSIBLE AND CREDIBLE EXPLANATION AS TO THE SOURCE OF MONEY FOR THE ACQUISITION OF THE SAID TWO PROPERTIES. EVEN IF IN THE OPINION OF THE AO THE EXPLANATION GIVEN BY THE APPELLANT IS NOT SATISFACTORILY NO ADDITION CAN BE MADE HAVING REGARD TO THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF SMT. P. K. NOORJAHAN (SUPRA). 24. THERE IS YET ANOTHER REASON AS TO WHY THE IMPUGNED ADDITION CANNOT BE SUSTAINED. ADMITTEDLY THE SUBJECT PROPERTIES WERE ACQUIRED BY THE APPELLANT BY WAY OF REMITTANCES FROM THE APPELLANT HIMSELF FROM ABROAD. FROM THE MATERIAL ON RECORD IT IS CLEAR THAT THE DEPOSITS WERE MADE IN BANK OF BARODA DUBAI IN THE ACCOUNT BELONGING TO APPELLANT HIMSELF. THEREFORE IT CAN BE SAID TO BE THAT MONEY WAS RECEIVED BY THE APPELLANT FOR THE FIRST TIME IN DUBAI AND THE INCOME IF ANY HAD ACCRUED AT DUBAI ONLY. ONCE IT IS RECEIVED BY THE PARTY ENTITLED TO IT IN RESPECT OF ANY SUBSEQUENT DEALING WITH THE SAID AMOUNT IT CANNOT BE SAID TO BE RECEIVED ON THAT OCCASION KINDLY REFER TO 14 ITR 10 (BOM.). SUBSEQUENTLY THE TERM RECEIPT HAD BEEN INTERPRETED TO MEAN THAT THE FIRST OCCASION WHEN THE RECIPIENT GETS THE MONEY ON HIS OWN CONTROL. ONCE AN AMOUNT IS RECEIVED AS INCOME ANY REMITTANCE OR TRANSMISSION OF THE AMOUNT TO ANOTHER PLACE DOES NOT RESULT IN RECEIPT WITHIN THE MEANING OF THIS CLAUSE AT THE OTHER PLACE (SEE PONDICHERRY RLY. CO. VS. CIT 5 ITC 363; CIT VS. DIWAN BAHADUR S.L. MATHIAS 7 ITR 48). THE OBSERVATIONS MADE BY THE PRIVY COUNCIL IN THE ABOVE CASES WAS QUOTED WITH APPROVAL BY HONBLE SUPREME COURT IN THE CASE OF KESHAV MILLS LTD. VS. CIT 23 ITR 230 WHEREIN IT WAS HELD AS FOLLOWS :- IT WAS CLEAR THAT UNDER THESE CIRCUMSTANCES THERE WAS NO RECEIPT OF THE MONEYS AT ALL EITHER ACTUAL OR CONSTRUCTIVE IN CASH OR IN KIND BY ACTUAL PAYMENT OR BY ADJUSTMENT OR SETTLEMENT OF ACCOUNTS. THERE WAS ALSO NO SCOPE FOR THE ARGUMENT 18 ITA NO.187/PAN/2019 THAT EVEN THOUGH THESE SUMS MIGHT NOT BE SAID TO BE EITHER ACTUALLY OR CONSTRUCTIVELY RECEIVED THEY SHOULD BE 'DEEMED TO BE RECEIVED'. THE EXPRESSION 'DEEMED TO BE RECEIVED' ONLY MEANS DEEMED BY THE PROVISIONS OF THE ACT TO BE RECEIVED. AN AMOUNT CANNOT BE 'DEEMED TO BE RECEIVED' MERELY BY THE VOLITION OR SWEET WILL OF AN INDIVIDUAL. THE PROFITS EARNED WHICH WERE CREDITED IN THE BOOKS OF ACCOUNT ACCORDING TO THE MERCANTILE SYSTEM OF ACCOUNTING WERE AT BEST 'TREATED AS HAVING BEEN RECEIVED' WHICH IS NEITHER 'RECEIVED' NOR 'DEEMED TO BE RECEIVED' AND THEREFORE NOT WITHIN THE PURVIEW OF SECTION 4 (1)(A) OF 1922 ACT. IT IS TRUE THAT THE WORDS USED IN SECTION 4(1)(A) OF 1922 ACT RELATE TO THE FIRST RECEIPT AFTER THE ACCRUAL OF THE INCOME. ONCE IT IS RECEIVED BY THE PARTY ENTITLED TO IT IN RESPECT OF ANY SUBSEQUENT DEALING WITH THE SAID AMOUNT IT CANNOT BE SAID TO BE 'RECEIVED' AS INCOME ON THAT OCCASION. THE 'RECEIPT' OF INCOME REFERS TO THE FIRST OCCASION WHEN THE RECIPIENT GETS THE MONEY UNDER HIS OWN CONTROL. ONCE AN AMOUNT IS RECEIVED AS INCOME ANY REMITTANCE OR TRANSMISSION OF THE AMOUNT TO ANOTHER PLACE DOES NOT RESULT IN 'RECEIPT' WITHIN THE MEANING OF THIS CLAUSE AT THE OTHER PLACE. IF THEREFORE THE INCOME PROFITS OR GAINS HAVE BEEN ONCE RECEIVED BY THE ASSESSEE EVEN THOUGH OUTSIDE BRITISH INDIA THEY DO NOT BECOME CHARGEABLE BY REASON OF THE MONEYS HAVING BEEN BROUGHT IN BRITISH INDIA BECAUSE WHAT IS CHARGEABLE IS THE FIRST RECEIPT OF THE MONEYS AND NOT A SUBSEQUENT DEALING BY THE ASSESSEE WITH THE SAID AMOUNT. IN THAT EVENT THEY ARE BROUGHT BY THE ASSESSEE AS HIS OWN MONEYS WHICH HE HAS ALREADY RECEIVED AND HAD CONTROL OVER AND THEY CEASE TO ENJOY THE CHARACTER OF INCOME PROFITS OR GAINS. IN THE INSTANT CASE THE MONEYS WERE NEITHER RECEIVED BY THE COMPANY NOR COULD BE DEEMED TO HAVE BEEN RECEIVED BY IT WHEN THE ENTRIES WERE MADE IN THE BOOKS OF ACCOUNT AT PETLAD. THEY HAD MERELY ACCRUED OR ARISEN TO IT AND SO FAR AS THE RECEIPT THEREOF WAS CONCERNED THEY WERE FIRST RECEIVED IN BRITISH INDIA WHEN THEY WERE RECEIVED BY J OR BY THE VARIOUS BANKS OR SHROFFS IN BRITISH INDIA THROUGH WHOM THE RAILWAY RECEIPTS WERE NEGOTIATED. THE FIRST RECEIPT OF THE MONEYS WAS THEREFORE WHEN THEY WERE PAID AS SUCH BY THE MERCHANTS TO J OR TO THE VARIOUS BANKS OR SHROFFS AS ABOVE. WHAT WERE PAID BY THE MERCHANTS TO THESE SEVERAL PARTIES WERE THE SALE PROCEEDS OF THE GOODS WHICH HAD BEEN SOLD AND DELIVERED BY THE COMPANY TO THEM AND THEY WERE RECEIVED WITHIN THE MEANING OF SECTION 4(1)(A) OF 1922 ACT BY THESE SEVERAL PARTIES ON BEHALF OF THE ASSESSEE IN BRITISH INDIA AT THE TIME WHEN THESE PAYMENTS WERE MADE BY THE MERCHANTS TO THEM. 25. THE ABOVE RATIO OF THE HONBLE SUPREME COURT IN THE CASE OF KESHAV MILLS LTD. (SUPRA) WAS REITERATED IN SERIES OF DECISIONS LIKE SMT. TARULATA SHYAM VS. CIT 108 ITR 345; CIT VS. DHARAMDAS HARGOVANDAS 42 ITR 427; STATE BANK LTD. VS. CIT 75 ITR 167. THIS POSITION OF LAW ALSO BEEN ACCEPTED BY THE CBDT VIDE PARA 2 OF THE CBDT CIRCULAR NO.5 IN [F.NO.73A/2(69)-IT (A-II)] DATED 20.02.1969. WHICH EXTRACTED BELOW :- MIGRANT ASSESSEE - MONEY REMITTED TO INDIA THROUGH BANKS - ENQUIRIES BY INCOME-TAX OFFICERS REGARDING ORIGIN OF MONEY - INSTRUCTIONS REGARDING. 19 ITA NO.187/PAN/2019 IT HAS BEEN REPRESENTED TO THE BOARD THAT PERSONS OF INDIAN ORIGIN RESIDING ABROAD BUT INTENDING TO RETURN TO INDIA AND SETTLE HERE PERMANENTLY APPREHEND THAT THE MONEY BROUGHT IN OR REMITTED FROM ABROAD BY SUCH PERSONS MIGHT BE SUBJECTED TO INCOME-TAX IN INDIA. THE APPREHENSION APPEARS TO BE DUE TO LACK OF INFORMATION REGARDING THE CORRECT LEGAL POSITION ABOUT THE TAXABILITY OF THE REMITTANCES OF MONEY FROM ABROAD. THE GENERAL POSITION IN THIS REGARD IS CLARIFIED BELOW : (2) MONEY BROUGHT INTO INDIA BY NON-RESIDENTS FOR INVESTMENTS OR OTHER PURPOSES IS NOT LIABLE TO INDIAN INCOME-TAX. THEREFORE THERE IS NO QUESTION OF A REMITTANCE INTO THE COUNTRY BEING SUBJECTED TO INCOME-TAX IN INDIA. THE QUESTION OF ASSESSMENT TO TAX ARISES ONLY WHEN THERE IS NO EVIDENCE TO SHOW THAT THE AMOUNT IN QUESTION IN FACT REPRESENTS SUCH REMITTANCE. IN OTHER WORDS IN THE ABSENCE OF PROPER SUPPORTING EVIDENCE THE TAXPAYERS STORY THAT THE MONEY HAS BEEN BROUGHT INTO INDIA FROM OUTSIDE MAY BE DISBELIEVED BY THE INCOME-TAX OFFICER WHO MAY THEN PROCEED TO HOLD THAT THE MONEY HAD IN FACT BEEN EARNED IN INDIA. (3) IF THE MONEY HAS BEEN BROUGHT INTO INDIA THROUGH BANKING CHANNELS OR IN THE FORM OF ASSETS LIKE PLANT AND MACHINERY OR STOCK-IN-TRADE FOR WHICH THE NECESSARY IMPORT PERMITS HAD BEEN OBTAINED NO QUESTIONS AT ALL ARE ASKED BY THE INCOME- TAX OFFICERS AS TO THE ORIGIN OF THE MONEY OR ASSETS BROUGHT IN. IT IS ONLY IN CASES WHERE THE MONEY IS CLAIMED TO HAVE BEEN BROUGHT FROM OUTSIDE OTHERWISE THAN THROUGH BANKING CHANNELS AND THERE IS NO EVIDENCE REGARDING THE TRANSFER OF MONEY THAT THE DEPARTMENT HAS TO MAKE ENQUIRIES ABOUT THE SOURCE THEREOF. EVEN IN THESE CASES HAVING REGARD TO THE DIFFICULTIES EXPERIENCED BY PERSONS MIGRATING FROM PAKISTAN BURMA AND EAST AFRICAN COUNTRIES INSTRUCTIONS HAVE BEEN ISSUED TO THE INCOME-TAX OFFICERS THAT SUCH CLAIMS SHOULD BE FREELY ADMITTED UP TO THE LIMIT OF RS. 50 000 IN EACH CASE PROVIDED THE FOLLOWING CONDITIONS ARE SATISFIED: (A)THE ASSESSEE MIGRATED TO INDIA ON OR AFTER THE DATES MENTIONED BELOW FROM THE COUNTRIES SHOWN AGAINST EACH AND HAD NO SOURCE OF INCOME IN INDIA : (I)30-7-1962 MOZAMBIQUE (VIDE MIN. OF FINANCE PRESS NOTE DATED 22-5-1967). (II)1-11-1963 (SIC.) ZANZIBAR KENYA TANZANIA AND UGANDA (VIDE MIN. OF FINANCE PRESS NOTE DATED 22-5-1967). (III)1-1-1964 EAST PAKISTAN AND BURMA (VIDE MIN. OF FINANCE PRESS NOTE DATED 25-6-1964/22-5-1965). (IV)1-10-1965 WEST PAKISTAN (VIDE MIN. OF FINANCE PRESS NOTE DATED 3-2-1969). (B)HE HAD SUFFICIENT RESOURCES IN THE FOREIGN COUNTRY. (C)HE HAD NO SOURCE OF INCOME EITHER IN INDIA OR IN ANY FOREIGN COUNTRY OTHER THAN THE COUNTRY FROM WHICH HE MIGRATED PRIOR TO MIGRATION AND HE WAS NOT ASSESSED AS RESIDENT IN INDIA EITHER FOR THE ASSESSMENT YEAR PRECEDING THE YEAR IN WHICH HE MIGRATED OR FOR EARLIER YEARS; AND (D)THE AMOUNT BROUGHT IN HAS BEEN DULY INTRODUCED IN THE BOOKS REGULARLY MAINTAINED IN INDIA AND AN INTIMATION OF SUCH INTRODUCTION IS GIVEN TO THE INCOME-TAX OFFICER WITHIN TWO MONTHS OF THE MIGRANTS ARRIVAL. 4. CASES NOT COVERED BY THE PRECEDING PARAGRAPH NAMELY (A)WHERE THE MONEY (IN THE CASE OF MOZAMBIQUE ZANZIBAR KENYA TANZANIA UGANDA EAST PAKISTAN AND BURMA) AND MONEY AND/OR THE PERSONAL JEWELLERY (IN THE CASE OF WEST PAKISTAN) CLAIMED TO HAVE BEEN BROUGHT EXCEEDS RS. 50 000; OR (B)WHERE THE ASSESSEE HAD SOME SOURCES OF INCOME EITHER IN INDIA OR IN ANY FOREIGN COUNTRY OTHER THAN THE ONE FROM WHICH HE HAD MIGRATED PRIOR TO MIGRATION; OR 20 ITA NO.187/PAN/2019 (C)WHERE THE ASSESSEE WAS ASSESSED AS RESIDENT IN INDIA EITHER FOR THE ASSESSMENT YEAR PRECEDING THE YEAR OF HIS/HER MIGRATION OR IN THE EARLIER YEARS WILL NOT BE ENTITLED TO ANY SPECIAL CONCESSION. THUS ANY CLAIM BY SUCH MIGRANTS THAT THE FUNDS OR THE JEWELLERY HAVE BEEN BROUGHT FROM THE ABOVEMENTIONED COUNTRIES WILL BE ACCEPTED ONLY IF THE PERSONS CONCERNED PRODUCE ADEQUATE EVIDENCE TO SHOW THAT THEY HAD SUFFICIENT FUNDS/WEALTH IN THOSE COUNTRIES AND THAT THE TRANSFER OF THE CASH/JEWELLERY TO INDIA CAN DIRECTLY BE LINKED WITH THE SAID FUNDS OR WEALTH. IN OTHER WORDS THESE MIGRANTS WILL HAVE TO LEAD PROPER EVIDENCE LIKE ANY OTHER ASSESSEES ABOUT THE SOURCE OF THE CASH/JEWELLERY ALLEGED TO HAVE BEEN BROUGHT BY THEM FROM THESE COUNTRIES. IN SUPPORT OF THE CLAIM THAT THEY HAD SUFFICIENT FUNDS IN THOSE COUNTRIES THEY MIGHT PRODUCE BEFORE THE INCOME-TAX AUTHORITIES IN INDIA THEIR BANK ACCOUNTS IN THOSE COUNTRIES AS ALSO COPIES OF THE ASSESSMENT ORDERS PASSED IN THEIR CASES BY THE INCOME-TAX AUTHORITIES OF THOSE COUNTRIES. THE MIGRANTS WOULD ALSO THEN BE REQUIRED TO PROVE THAT THE AMOUNTS BROUGHT INTO INDIA CAN DIRECTLY BE LINKED WITH THE FUNDS WHICH THEY HAD POSSESSED IN THOSE COUNTRIES.' 26. THE POSITION THAT EMERGES FROM THE CBDT CIRCULAR AS WELL AS THE HONBLE SUPREME COURTS DECISION IN THE CASE OF KESHAV MILLS LTD. (SUPRA) IS THAT THE MONEY BROUGHT IN INDIA BY NON-RESIDENT FOR INVESTMENT OR FOR OTHER PURPOSE IS NOT LIABLE TO TAX UNDER THE PROVISIONS OF THE INCOME TAX ACT. THE QUESTION OF ASSESSMENT TO INCOME TAX ARISES ONLY WHEN THERE IS NO EVIDENCE TO SHOW THAT AMOUNT IS QUESTION IN FACT REPRESENTS REMITTANCE FROM ABROAD. ADMITTEDLY IN THE PRESENT CASE THERE IS AMPLE EVIDENCE ON RECORD DEMONSTRATING THAT THE AMOUNTS IN QUESTION REPRESENTS REMITTANCE FROM ABROAD BY THE APPELLANT HIMSELF. THE RATIONAL BEHIND THIS LEGAL PROPOSITION IS THAT THE WORD RECEIPT IMPLIES TWO PERSONS VIZ. THE PERSON WHO RECEIVES AND THE PERSON FROM WHOM HE RECEIVES; A PERSON CANNOT RECEIVE A THING FROM HIMSELF. 27. ADMITTEDLY THE APPELLANT HEREIN IS NON-RESIDENT FOR THE LAST 30 YEARS FOR INCOME TAX PURPOSE AND CITIZEN OF USA. THE SCOPE OF TAX LIABILITY OF NON- RESIDENT IS REQUIRED TO BE CONSIDERED IN THE LIGHT OF SECTION 4 AND 5 OF THE INCOME TAX ACT. THE RELEVANT PROVISIONS OF THE ACT ARE EXTRACTED AS UNDER :- 21 ITA NO.187/PAN/2019 CHARGE OF INCOME-TAX. 4. (1) WHERE ANY CENTRAL ACT ENACTS THAT INCOME-TAX SHALL BE CHARGED FOR ANY ASSESSMENT YEAR AT ANY RATE OR RATES INCOME-TAX AT THAT RATE OR THOSE RATES SHALL BE CHARGED FOR THAT YEAR IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS (INCLUDING PROVISIONS FOR THE LEVY OF ADDITIONAL INCOME-TAX) OF THIS ACT IN RESPECT OF THE TOTAL INCOME OF THE PREVIOUS YEAR OF EVERY PERSON : PROVIDED THAT WHERE BY VIRTUE OF ANY PROVISION OF THIS ACT INCOME-TAX IS TO BE CHARGED IN RESPECT OF THE INCOME OF A PERIOD OTHER THAN THE PREVIOUS YEAR INCOME- TAX SHALL BE CHARGED ACCORDINGLY. (2) IN RESPECT OF INCOME CHARGEABLE UNDER SUB-SECTION (1) INCOME-TAX SHALL BE DEDUCTED AT THE SOURCE OR PAID IN ADVANCE WHERE IT IS SO DEDUCTIBLE OR PAYABLE UNDER ANY PROVISION OF THIS ACT. ****** SCOPE OF TOTAL INCOME. 5. (1) SUBJECT TO THE PROVISIONS OF THIS ACT THE TOTAL INCOME OF ANY PREVIOUS YEAR OF A PERSON WHO IS A RESIDENT INCLUDES ALL INCOME FROM WHATEVER SOURCE DERIVED WHICH (A) IS RECEIVED OR IS DEEMED TO BE RECEIVED IN INDIA IN SUCH YEAR BY OR ON BEHALF OF SUCH PERSON ; OR (B) ACCRUES OR ARISES OR IS DEEMED TO ACCRUE OR ARISE TO HIM IN INDIA DURING SUCH YEAR ; OR (C) ACCRUES OR ARISES TO HIM OUTSIDE INDIA DURING SUCH YEAR : PROVIDED THAT IN THE CASE OF A PERSON NOT ORDINARILY RESIDENT IN INDIA WITHIN THE MEANING OF SUB-SECTION (6) OF SECTION 6 THE INCOME WHICH ACCRUES OR ARISES TO HIM OUTSIDE INDIA SHALL NOT BE SO INCLUDED UNLESS IT IS DERIVED FROM A BUSINESS CONTROLLED IN OR A PROFESSION SET UP IN INDIA. (2) SUBJECT TO THE PROVISIONS OF THIS ACT THE TOTAL INCOME OF ANY PREVIOUS YEAR OF A PERSON WHO IS A NON-RESIDENT INCLUDES ALL INCOME FROM WHATEVER SOURCE DERIVED WHICH (A) IS RECEIVED OR IS DEEMED TO BE RECEIVED IN INDIA IN SUCH YEAR BY OR ON BEHALF OF SUCH PERSON ; OR (B) ACCRUES OR ARISES OR IS DEEMED TO ACCRUE OR ARISE TO HIM IN INDIA DURING SUCH YEAR. EXPLANATION 1.INCOME ACCRUING OR ARISING OUTSIDE INDIA SHALL NOT BE DEEMED TO BE RECEIVED IN INDIA WITHIN THE MEANING OF THIS SECTION BY REASON ONLY OF THE FACT THAT IT IS TAKEN INTO ACCOUNT IN A BALANCE SHEET PREPARED IN INDIA. EXPLANATION 2.FOR THE REMOVAL OF DOUBTS IT IS HEREBY DECLARED THAT INCOME WHICH HAS BEEN INCLUDED IN THE TOTAL INCOME OF A PERSON ON THE BASIS THAT IT HAS ACCRUED OR ARISEN OR IS DEEMED TO HAVE ACCRUED OR ARISEN TO HIM SHALL NOT AGAIN BE SO INCLUDED ON THE BASIS THAT IT IS RECEIVED OR DEEMED TO BE RECEIVED BY HIM IN INDIA. 28. THE PROVISIONS OF SUB-SECTION (2) OF SECTION 5 PROVIDES THAT THE NON- RESIDENT IS LIABLE TO TAX IN RESPECT OF (A) INCOME RECEIVED OR DEEMED TO BE 22 ITA NO.187/PAN/2019 RECEIVED IN INDIA AND (B) INCOME WHICH ACCRUES OR ARISES OR IS DEEMED TO BE ACCRUED OR ARISE TO HIM IN INDIA. CONSIDERING THE TOTALITY OF FACTS SITUATION OF THE CASE ON HAND IT CAN BE SAFELY CONCLUDED THAT THE REMITTANCE RECEIVED FROM THE APPELLANTS ACCOUNT BANK OF BARODA DUBAI TO APPELLANTS ACCOUNT TO SBI NRE SB ACCOUNT MAPUSA GOA OR REMITTANCE TO THE VENDORS OF THE PROPERTIES IS NEITHER INCOME RECEIVED OR DEEMED TO RECEIVED IN INDIA OR NOR WAS ACCRUED OR ARISEN OR DEEMED TO BE ACCRUED OR ARISEN IN INDIA THEREFORE THE QUESTION OF CHARGEABILITY TO INCOME TAX IN INDIA DOES NOT ARISE. THEREFORE THE CBDT CIRCULAR CITED SUPRA ALSO SUPPORTS THE CASE OF THE ASSESSEE. IN THE CASE INVOLVING IDENTICAL FACTS THE CO-ORDINATE BENCH OF THE CHENNAI TRIBUNAL IN THE CASE OF SMT. SUSILA RAMASAMY VS. ACIT 8 ITR 18 (CHENNAI TRIB.) REFERRING TO THE CBDT CIRCULAR NO.5 DATED 20.02.1969 (SUPRA) HELD THE SAME VIEW. 29. ADMITTEDLY THE APPELLANT HEREIN IS NON-RESIDENT INDIAN FOR INCOME TAX PURPOSE FOR LAST 30 YEARS. AS NOTED BY US (SUPRA) AN INDIAN RESIDENT IS LIABLE TO TAX IN RESPECT OF INCOME RECEIVED OR DEEMED TO BE RECEIVED IN INDIA AND INCOME WHICH ACCRUES OR ARISES OR DEEMED TO BE ACCRUED OR ARISEN IN INDIA. IN THE PRECEDING PARAGRAPHS WE HELD THAT THE IMPUGNED ADDITION DOES NOT REPRESENT EITHER INCOME RECEIVED OR DEEMED TO BE RECEIVED IN INDIA OR INCOME ACCRUED OR ARISEN OR DEEMED TO BE ACCRUED OR ARISEN IN INDIA. THE REMITTANCE BROUGHT TO INDIA WHICH ARE SUBJECT MATTER OF IMPUGNED ADDITIONS ARE OBVIOUSLY INCOME RECEIVED AT FIRST INSTANCE OUTSIDE TAXABLE TERRITORIES OF INDIA OR ACCRUED OR ARISEN OUTSIDE TAXABLE TERRITORIES OF INDIA. THEREFORE IT IS BEYOND THE SCOPE OF JURISDICTION OF THE ASSESSING OFFICER TO GO INTO THE SOURCE OF INCOME EARNED OUTSIDE TAXABLE TERRITORIES OF INDIA ONCE THE ASSESSING OFFICER IS SATISFIED THAT 23 ITA NO.187/PAN/2019 THE SOURCE OF MONEY FOR ACQUISITION OF PROPERTY REPRESENT REMITTANCE FROM THE ABROAD FROM THE APPELLANT HIMSELF. THEREFORE REJECTION AND ACCEPTANCE OF EXPLANATION GIVEN AS TO THE SOURCE OF CREDITS IN THE BANK ACCOUNT OF BANK OF BARODA DUBAI IS TOTALLY IMMATERIAL AND HAD NO RELEVANCE AT ALL AS THE ASSESSING OFFICER WAS NOT CONCERNED ABOUT THE TAXABILITY OR OTHERWISE OF INCOME RECEIVED OR ACCRUED AND ARISEN OUTSIDE THE TAXABLE TERRITORIES OF INDIA TO NON- RESIDENT. THEREFORE THE FACT THAT THE LOWER AUTHORITIES HAD REJECTED THE EXPLANATION AS TO THE SOURCES OF CREDITS IN THE BANK OF BARODA DUBAI ACCOUNT DOES NOT COME IN THE WAY OF DELETING THE IMPUGNED ADDITIONS. THIS IS MORE SO IN VIEW OF THE FACT THAT THERE IS NO MATERIAL ON RECORD TO SHOW THAT THE APPELLANT HAD DIVERTED THE INCOME WHICH ESCAPED THE ASSESSMENT TO TAX IN INDIA TO DEPOSIT THE MONEY IN THE BANK OF BARODA DUBAI ACCOUNT IN FACT IT IS NOT EVEN THE CASE OF THE ASSESSING OFFICER THAT THE APPELLANT HAD INDULGED IN ROUND TRIPPING OF MONEY AND THERE IS NO ALLEGATION AS SUCH AGAINST THE APPELLANT. 30. THEREFORE IN OUR CONSIDERED OPINION THE LOWER AUTHORITIES NOT ACCEPTING THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT BASED ON PROPER APPRECIATION OF MATERIAL ON RECORD AND OTHER ATTENDING CIRCUMSTANCES AVAILABLE ON RECORD. IT IS NEEDLESS TO SAY THAT THE OPINION OF THE ASSESSING OFFICER IS REQUIRED TO BE FORMED WITH REFERENCE TO THE MATERIAL ON RECORD AND APPLICATION OF MIND IN SIN QUA NON FOR FORMING THE OPINION AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. P. MOHANAKALA 291 ITR 278 (SC). IN THE PRESENT CASE THERE IS TOTAL LACK OF APPLICATION OF MIND THE ASSESSING OFFICER HAD NOT FORMED THE OPINION OBJECTIVELY WITH REFERENCE TO ANY MATERIAL ON RECORD AND IS MERELY BASED ON THE SURMISES AND CONJECTURES. WE FAIL TO UNDERSTAND AS TO WHY THE ASSESSING OFFICER HAVING RIGHTLY TAKEN NOTE OF THE CORRECT LEGAL POSITION GOVERNING THE CREDITS IN THE BANK ACCOUNT I.E. HE HAD CHOSEN TO BRING THE SAME TO TAX U/S 68 OF THE ACT INSTEAD OF SECTION 69 OF THE ACT. THIS ITSELF GOES TO 24 ITA NO.187/PAN/2019 SHOW THE MALA-FIDES ON THE PART OF THE ASSESSING OFFICER PERHAPS HE INTENDS TO ASSESS TO TAX IN THE HANDS OF THE APPELLANT UNDER MORE VIGOROUS THE PROVISIONS OF SECTION 68 OF THE ACT THAN PROVISIONS OF SECTION 69 OF THE ACT. IN THE CIRCUMSTANCES WE ARE OF THE CONSIDERED OPINION THAT THE ADDITION MADE BY THE ASSESSING OFFICER CANNOT BE SUSTAINED AND THE ORDERS OF BOTH THE ASSESSING OFFICER AND THE LD. CIT(A) ARE HEREBY SET-ASIDE. WE DIRECT THE ASSESSING OFFICER TO DELETE THE IMPUGNED ADDITIONS. 31. IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED ON THIS 12 TH DAY OF MARCH 2021. SD/- SD/- (S. S. VISWANETHRA RAVI) (INTURI RAMA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 12 TH MARCH 2021. SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-12 BANGALORE. 4. THE PR. CIT-6 BANGALORE. 5 . DR ITAT PANAJI. 6. / GUARD FILE. / BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY / ITAT PUNE.