NILESH PURSHOTTAM GHODASARA,MUMBAI vs. DCIT CIRCLE INT TAX 1(3)(1), NEW DELHI

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ITA 297/DEL/2023Status: DisposedITAT Delhi22 July 2025AY 2015-16Bench: SHRI VIKAS AWASTHY (Judicial Member), SHRI BRAJESH KUMAR SINGH (Accountant Member)1 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal found that the assessee had provided sufficient evidence to explain the source of funds for the property investment, including payments from outside India and through a housing loan. The Tribunal also accepted that certain payments were made in a prior financial year and thus not relevant for the current assessment year.

What were the facts?

The Assessing Officer (AO) reopened the assessment of the assessee for AY 2015-16 based on AIR information regarding a property investment of Rs. 5,17,67,531/-. The assessee, a non-resident, did not file a return of income. The AO made an addition under Section 69 for unexplained investment after the assessee failed to provide satisfactory source of funds.

What were the issues?

Whether the addition made by the AO for unexplained investment in property under Section 69 was sustainable, given the assessee's non-resident status and the evidence of fund sources provided.

Which sections of the Income-tax Act were involved?

Section 69,Section 147,Section 144,Section 144C,Section 148,Section 142(1)

AI-generated summary — verify with the full judgment below

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Income Tax Appellate Tribunal, DELHI BENCH, ‘D’: NEW DELHI

Before: SHRI VIKAS AWASTHY & SHRI BRAJESH KUMAR SINGH

For Appellant: Shri Ankit Agarwal, CA &, Shri Gopal Agarwal, CA
For Respondent: Ms. Harpreet Kaur, Sr. DR
Hearing: 25.04.2025Pronounced: 22.07.2025

ORDER PER BRAJESH KUMAR SINGH, AM,

This appeal by the assessee is directed against the order of the ld. Assistant Commissioner of Income Tax, Circle- International Taxation-1(3)(1), New Delhi, dated 21.01.2023, u/s 147 r.w.s 144 of the Income Tax Act, 1961 (hereinafter ‘the Act’), arising out of order of ld. Dispute Resolution Panel (in short ‘DRP') dated 22.12.2022, for Assessment Year 2015-16.

2.

Grounds of appeal raised by the assessee are as under:-

1. Ground No. 1: Reopening was bad in law: On the facts and in the circumstances and in the law, the Ld. AO erred in reopening the assessment as reopening was bad in law 2. Ground no. 2: Draft assessment referred to the Dispute resolution panel is without jurisdiction: a. The assessing officer erred in passing the draft assessment order without appreciating the fact that since the appellant had not filed the return of income hence provisions of section 144C(1) of the Act are not applicable to the appellant as draft assessment is to be forwarded only in case any variation in the income or loss returned b. The appellant is not subjected to transfer pricing provisions and no reference to transfer pricing officer has been made in his case under section 92CA of the Act for the relevant year. As no order is passed in the case of the assessee by transfer pricing officer u/s. 92CA(3) of the Act, the assessee is not an "eligible assessee" u/s. 144C(15) of the Act. The assessee is not an "eligible assessee" as he was a non resident in the relevant assessment year and did not fall within the ambit of clause b ii) of the section 144C(15) since the amendment was made w.e.f 01.04.2020. Therefore, reference to dispute resolution panel u/s. 144C (1) of the Act by the AO of the draft assessment order itself is without jurisdiction, uncalled for and such draft order along with reference to Dispute Resolution Panel is void-ab-initio. Hence the assessment is barred by limitation.

3. Ground no. 3: Addition u/s. 69 of the act of Rs. 5,17,67,531/- : On the facts and in the circumstances and in the law, the Ld. AO erred in reopening the assessment and making addition of Rs. 5,17,67,531/- without making necessary inquires and application of mind as to the sources for investment in the property by the appellant nor has provided opportunity to the appellant with proper service of notice and providing time line to a non-resident assessee during the reopened assessment proceedings.

4. Ground No. 4: On the facts and in the circumstances and in the law, the Ld. AO has erred in making the best judgement assessment u/s 144 of the Act.

5. Ground No. 5: On the facts and in the circumstances and in the law, the Ld. AO erred in adding back the entire amount of purchase consideration of immovable property without considering the submissions made by the assessee and without giving any reasons in the assessment order why the claims of the appellant are not tenable.”

3.

Brief facts of the case:- On the basis of AIR information that the assessee had invested in purchase of property for a sum of Rs.5,17,67,531/- during the year and since no return of income was filed, the Assessing Officer reopened the case of the assessee vide notice u/s 148 of the Act dated 31.03.2021. The Assessing Officer noted that no return of income was filed by the assessee in response to the said notice u/s 148 of the Act. The Assessing Officer further noted that in absence of any response filed by the assessee to the notice u/s 142(1) of the Act and the show cause notice dated 24.02.2022, observed that, since no source of investment was submitted, he treated the investment of Rs.5,17,67,535/- as unexplained investment u/s 69 of the Act in the draft assessment order u/s 144C of the Act dated 15.03.2022. In this regard, the Assessing Officer also observed that Hon’ble Madhya Pradesh High Court in the case of Dr. Dr. Prakash Tiwari vs CIT 148 ITR 474 has held that where the assessee has not maintained books of accounts and unexplained investment are discovered, addition u/s 69 of the Act was justified.

4.

Aggrieved with the draft assessment order, the assessee filed his objections with ld. DRP. The ld. DRP on the basis of submission made by the assessee called for a remand report from the Assessing Officer.

The Assessing Officer submitted two remand reports dated 09.11.2022 and 07.11.2022. The Assessing Officer noted in the remand report dated 07.11.2022 that the assessee had filed a self- made excel sheet of payment, incomplete loan statement and not provided any other relevant supporting documents. Further, it was noted by the Assessing Officer that the assessee had submitted UK tax return for calendar year 2012 and 2013 and loan statement. The Assessing Officer did not find it to be satisfactory as according to him, the assessee had still not provided other relevant documents such as employment certificate clearly stating source of income, incomplete bank statement in which loan amount was received, sanction letter of loan as issued by bank, letter of disbursement of loan etc. with any other relevant valid documents to sustain his claim.

4.1. The Assessing Officer in his remand report dated 07.11.2022 submitted as under:-

7.6 Now assessee has submitted only UK tax return and loan statement. The same was examined but not found acceptable as assessee has still not produced complete bank statement. No employment certificate was provided to substantiate source of income. Moreover, letter of disbursement is also not provided by assessee. Hence, on merit, claims made by assessee is not acceptable....."

5.

The ld. Dispute Resolution Panel noted that the assessee was an NRI having its residential address at 4, Whitton, Close, Greenford, Middlesex, UB60QS, United Kingdom. The Ld. DRP considered the remand report of the Assessing Officer and also took note of the fact that some documents were filed by the assessee vide paper book from pages no.16 to 26 containing the ledger enquiry of Universal Banking Solution from Infosys. The ld. DRP in para-4.2.3 gave its finding and direction to the Assessing Officer, which is reproduced as under:-

4.2.3 The Panel has carefully considered the rival averments as above. The Panel has already considered the assessee's request for admission of the additional evidence by remanding the matter to office of the AO. The Panel fairly takes a note of AO's observation made in the remand report as correct so far as the assessee did not properly file the requisite details. The Panel further discussed at para 4.2.4 above. However, the assessing officer's view appears to be takes a note that some documents have been filed by the assessee vide paper-book from page no. 16 to 26 containing account ledger enquiry of Universal Banking Solution from Infosys. Considering the assessee's submission, the AO is directed to consider and verify the assessee's contention in light of submissions made as above before the Panel by passing a speaking and reasoned order within the ambit of law and facts of the case. The Panel hastens to clarify that the AO shall not conduct any fresh inquiry in this regard; the verification shall be made on the basis of documents/submissions available on the records. The assessee's objections made at ground no. 1 to 3, in this regard are hereby, disposed off accordingly.

6.

The Assessing Officer passed the final assessment order on 21.01.2023. In the final order, the Assessing Officer stated that as per the directions of the ld. DRP, the case was re-examined again with information available on record but stated the claims of the assessee was not found tenable and determined the total income of the assessee at Rs.5,17,67,531/- u/s 69 of the Act as was done by him in the draft assessment order.

7.

Aggrieved with the order of the Assessing Officer, the assessee is in appeal before us.

7.1. At the outset, the ld. AR referred to the petition dated 19.01.2024 requesting to admit additional evidence, which is reproduced as under:-

“The hearing of the captioned appeal is fixed before the Hon'ble 'D' Bench of the Income Tax Appellate Tribunal on January 24, 2024. In this connection, the Petitioner, humbly submits as under: The captioned appeal has been filed against the order passed by the Deputy Commissioner of Income Tax, Circle Int Tax, 1(3)(1), New Delhi ("the AO") dated January 21, 2023 passed pursuant to the directions of the Dispute Resolution Panel - 2, New Delhi ('the DRP') given vide order dated December 22, 2022 passed under section 144C(5) of the Income Tax Act ("the Act"). In the said order, the AO has assessed the Total Income of the Petitioner at Rs.5,17,67,531/- after making an addition of Rs. 5,17,67,531/- under section 69 of the Act. The Petitioner is filing this petition for admission as additional evidence of documents filed as part of its paper book titled 'Paper Book at Sr. No. 10 to 13 of the said Paper Book more specifically mentioned below :- Sr. Description of document Page nos. No. 10 Loan statement of Punjab National Bank 312-316 having A/c No.522300NC00011966 11 Bank statement of Ms. Bharti Dhimantrai 317-323 Patel of Bank of Baroda having A/c No.9410- 01-91006801 and passport copy of the Bharti Dhimantrai Patel 12 Bank statement of Mr. Nilesh Purshottam 324-326 Ghodasara of Bank of India, Ahmedabad, having A/c No.201813110000107 13 Punjab National Bank saving Bank Account 327-328 with A/c No.7538000500000109

The Petitioner is a citizen of United Kingdom of Great Britain and Northern Ireland ("UK" or "United Kingdom"). During the relevant Previous Year, the Petitioner was tax resident of United Kingdom. The Petitioner in preceding year as well as subsequent years had continued to be the tax resident of United Kingdom. Further, the Petitioner does not have any presence in India. Hence, during the Relevant Previous Year, the petitioner was a nonresident as per the provisions of the Act. Also, the Petitioner during the Relevant Previous Year did not have any taxable income in India. Accordingly, the Petitioner had not filed any Return of Income in India for the Relevant Previous Year. In fact, the Petitioner in preceding years also never had any taxable income in India. Accordingly, the Petitioner had not filed any Return of Income in India even in preceding years also.

In United Kingdom, the Petitioner is a partner in a UK Based partnership firm and therefore was governed by United Kingdom Laws. As per United Kingdom Laws, books of Account for period April 1, 2014 to March 31, 2015 is required to be maintained till January 31, 2021. Therefore, the Petitioner was not in possession of the aforesaid documents during the reassessment proceedings for the captioned year which started on March 31, 2021 i.e after the expiry of the statutory time limit for which Petitioner was required to maintain the books of account/ documents as per United Kingdom Laws. In view of the foregoing, it is submitted that the documents mentioned above could not be submitted before Ld. AO during the course of reassessment proceedings as the same were not in the possession of the Petitioner at that time of the reassessment proceedings but are relevant to counter the allegations in the impugned order. Further, the Petitioner submits that the said documents go to the root of the matter and are essential for the Petitioner to present its case in an effective manner so that true and fair justice can be granted to the Petitioner in the captioned matter. Thus, the Petitioner humbly prays the Hon'ble Tribunal to kindly exercise its power under Rule 29 of Income-tax (Appellate Tribunal) Rules, 1963 and admit the aforesaid additional evidence as there is substantial cause to admit the same and/or sufficient opportunity was not provided to the Petitioner to adduce evidence during reassessment proceedings. In view of the foregoing and since all the documentary evidences go to the very root of the issue raised in the impugned order and are vital in explaining the Petitioner's case and in the interest of justice, the petitioner hereby prays that your Honours may kindly admit and consider the aforesaid evidences, as stated above, so as to meet the ends of justice.” 7.2. We have carefully considered the same and we are satisfied that the above documentary evidences go to the very root of the issue raised in the impugned order and are vital in explaining the assessee’s case and therefore in the interest of justice, the same are admitted.

8.

In the statement of facts filed along with the appeal, it was inter- alia submitted that the assessee being Non-resident Indian residing outside India with his foreign address only on PAN, was not served personally with the notice u/s 148 of the Act dated 31.03.2021. The fact regarding that the assessee was British National residing at 4, Whitton, Close, Greenford, Middlesex, UB60QS, United Kingdom and did not earn any taxable income in India during FY 2014-15 was also submitted by the assessee before the Assessing Officer vide letter dated 26.02.2022 in response to show-cause notice dated 24.02.2022 issue in respect of proceedings u/s 147 of the Act (placed at page no.15 of the paper book), which was reiterated by the assessee in his submission dated 05.03.2022 (placed at page no.242 of the paper book). Further, it was submitted by the Ld. AR that the assessee did not have any source of income in India and had not earned any income in India and therefore, the said source of investment of Rs.5,17,67,351/- being sourced from outside India i.e. from United Kingdom was not taxable in India. It was further submitted that the assessee alongwith his brother Shri Dhimantrai Purshottam Patel had purchased the Flat No.3204, A-wing, at “Minerva” Mahalakshmi, Mumbai-400011 on a joint ownership. On a query from the Bench to substantiate the claim of the assessee that the source of investment of Rs.5,17,67,351/- was from United Kingdom and not from India, the assessee submitted that he required some time to place on record bank statements to substantiate that for purchase of property in India the funds were sourced from U.K. since the bank statements were to sourced from U.K. During the hearing before us the ld. AR filed a tabular chart (named as Table-1 for convenience) explaining the details of amount paid for the purchase of the property and the source thereon. The same is reproduced as below:-

TABLE-1 8.1. Further, the assessee also produced tabular chart in paper book volume-2 in support of his claim made regarding the above tabular chart to show that except for an amount of Rs.2,68,77,732/- (Rs.2,16,35,275 + Rs.21,29,995/- + Rs.4,91,467/- + Rs.26,21,000/-) received through PNB Housing Loan A/c No. XXXX11966, Ville Parle Branch, Mumbai (placed at page nos.397 to 401 of the paper book) all other payment were sourced from United Kingdom.

9.

The ld. Sr. DR relied upon the orders of the authorities below.

10.

We have heard both the parties and perused the material available on record. In para no.8 of this order, as discussed earlier, the assessee submitted that the assessee being Non-resident Indian residing outside India with his foreign address only on PAN, was not served personally with the notice u/s 148 of the Act dated 31.03.2021. However, as noted in para no.8 of this order, the assessee submitted details before the Assessing Officer vide letter dated 26.02.2022 in response to show-cause notice dated 24.02.2022 issued in respect of proceedings u/s 147 of the Act (placed at page no.15 of the paper book) and thus the assessee was aware during the pendency of the assessment proceedings that the same was in pursuance of proceedings under section 147 of the Act.

10.1. On perusal of the sale agreement dated 26.06.2014 in respect of the Flat No.3204, A-wing, at “Minerva” Mahalakshmi, Mumbai-400011, it is seen that the said flat was purchased by the assessee Shri Nilesh Purshottam Ghodasara and his brother, Shri Dhimantai Purushottam Patel. Further, on perusal of the details of the payments as per Table-1, submitted by the assessee and reproduced in para no.8 of this order and the supporting documents filed by the assessee on page no.333 to 405 of the paper book-II, it is seen that the payment for said flat has been made by the assessee Nilesh Purshottam Ghodasara, Shri Udit Pal Garg, a British National (investment advisor of the assessee), M/s Estate Cares c/o- Estate Cares, C5/51, East of Kailash, New Delhi -110065, Mrs. Bharti Dhimantrai Patel (sister-in-law of the assessee and wife of the Co- owner Mr. Dhimantrai Purshottam Patel, who is British National and UK passport holder) and through housing loan account (Sanctioned Amount- Rs.453 lakhs by Punjab National Bank, Ville Parle, Mumbai Branch)(page nos.395-396 of the paper book). The said details of payments in Table-1 in this order and the supporting documents filed by the assessee on page no.333 to 405 of the paper book-II have been perused and verified very carefully and the details of sources of investment explained therein have been found to be correct. We also observe that sources and the dates of payment are matching with the respective receipts issued by the builder for the sale of the said flat which are placed at page nos.333 to 349 of the paper book. Further, the above payments are also matching with the details of payments collected by the Assessing Officer u/s 133(6) of the Act from the builder M/s Lokhandwala Kataria Construction Pvt. Ltd., which is forming part of notice u/s 142(1) of the Act dated 02.02.2022 placed at page no.4 of the paper book.

10.2. On careful verification of the above details, it is seen that during FY 2014-15 relevant to AY 2015-16 subject matter of this appellate year, the assessee had paid a sum of Rs.5,02,67,531/- (out of Rs.5,17,67,531/- considered by the Assessing Officer was paid) to the builder and the source of the said payment is summarized as per the tabular chart below (named as Table-2 for convenience).

TABLE-2 Sr. No. Amount (in Rs.) Paid on Details/Remarks 1 39,00,000/- 08.04.2014 Paid by Shri Udit Pal Garg (a British national and investment adviser of the assessee) to the builder from his Bank Account nos. xxxx5293 from Bank of Baroda (UK) Limited, London Main Branch. Prior to the said payment of Rs.20,00,000/- Shri Udit Pal Garg received a sum of 75,000 from the assessee Shri Nilesh Purshottam Ghodasara hereinafter referred as NPG in HALIFAX, outside India) (Page No.350-352 & 353 to 357 of the paper book) 2 20,00,000/- 11.04.2014 Paid by M/s Estate Cares Bank A/c HDFC, Panchsila Park, New Delhi Prior to this payment there is a credit entry of Rs.49,01,500/-) on 07.04.2014 (through conversion of GBP 50,000/- @ 98.0300) and a sum of Rs.11,50,000/- received through Shri Udit Garg on 09.04.2014 (Page no.358 of the paper book) 3 36,62,000/- 11.04.2014 Paid by the assessee Shri Nilesh Purshottam Ghodasara through his NRE A/c.xxxxx00107, Bank of India, Narainpura, Wadaj Branch Ahmedabad (Page no.359-360 of paper book

4 42,59,252/- 02.06.2014 Payment was made by Mrs. Bharti Dhimantrai Patel (sister-in-law of the assessee and wife of the Co-owner Mr. Dhimantrai Purshottam Patel) through her bank account xxxx6801 Bank of Baroda (UK) Ltd., London Main Branch (pageno.362 of the paper book) This amount (Rs.42,59,252/- along with other amounts mentioned at Sr. No.16, 17, 18 and 19 in Table-1 in this order totalling Rs.98,50,000/- was paid by Mrs. Bharti Dimantrai Patel from the aforesaid bank account on 30.05.2014 Further, the documents at page no.367- 372 of the paper book show that Mrs. Bharti Dimantrai Patel is a British Citizen and UK passport holder.

5 95,69,604/ 26.06.2014 Payment was made by Mrs. Bharti Dhimantrai Patel (sister-in-law of the assessee and wife of the Co-owner Mr. Dhimantrai Purshottam Patel through her bank account xxxx6801 Bank of Baroda (UK) Ltd., London Main Branch (pageno.363 of the paper book) This amount (Rs.95,69,604/- along with other amount mentioned at Sr. No.20 in Table-1 in this order totalling Rs.96,66,250/- was paid by Mrs. Bharti Dimantrai Patel from the aforesaid bank account on 25.06.2014 Further, the documents at page no.367-

372 of the paper book show that Mrs. Bharti Dimantrai Patel is a British Citizen and UK passport holder. 6. 2,68,77,732/- 18.07.2014 The payment of Rs. 2,68,77,732/- 15.09.2014 (Rs.2,16,35,275 + Rs.21,29,995/- + 28.11.2014 Rs.4,91,467/- + Rs.26,21,000/-) was 08.01.2015 paid through PNB Housing Loan A/c and No. XXXX11966, Ville Parle Branch, 10.02.2015 Mumbai (placed at page nos.397 to 401 of the paper book) Total 5,02,67,988/-* * The total investment amount paid by the assessee during the year amounts to Rs.5,02,67,988/- as against

Rs.5,02,67,531/- as per the amount considered by the Assessing Officer. Thus, there is a minor difference of Rs.457/- which is to be ignored.

10.3. Thus, as per the above details, it found that the source of funds of Rs.2,33,90,256/- is from sources outside India and balance sum of Rs.2,68,77,732/- (Rs.5,02,67,988/- - Rs.2,33,90,256/-) has been paid out of housing loan. Moreover, the assessee has satisfied that he himself is a UK Citizen and a UK passport holder (page no.199 of the paper book) and his submission that he was a non- resident during the year has not been contradicted by the lower authorities. Similarly, the assessee has satisfied that Shri Udit Pal Garg was a British National and filed his tax return for year 2014 (placed at page no.353 to 357 of the paper book). Also, Mrs. Bharti Dhimantrai Patel (sister-in-law of the assessee and wife of the Co- owner Mr. Dhimantrai Purshottam Patel has satisfied that she was an UK Citizen and a UK passport holder (page no.367-372 of the paper book). Further, on perusal of the above payments except for an amount of Rs.2,68,77,732/-(paid through housing loan) and Rs.20,00,000/- paid by M/s Estate Cares, the balance amount was paid from a source outside India or through the NRE Account of the assessee. Regarding the payment of Rs.20,00,000/- paid by M/s Estate Cares, through HDFC Bank, Panchshila Park as discussed above, prior to this transfer, an amount of Rs.49,01,500/- was credited in the said bank account on 07.04.2014 (through conversion of GBP 50,000/- @ 98.0300) and a sum of Rs.11,50,000/- was received from Shri Udit Pal Garg a British National, on 09.04.2014 (Page no.358 of the paper book). Thus, the payment of Rs.20,00,000/- though paid in India but it was sourced from outside India. Therefore, the entire payment of Rs.2,33,90,256/- other than the housing loan amount of Rs.2,68,77,732/- being sourced from outside India will not be taxable in the hands of the assessee, he being a non-resident during the FY 2014-15 relevant assessment year 2015-16. Similarly, the payment of Rs.2,68,77,732/- paid through housing loan will not be taxable as the source of the same stands explained.

10.3. Further, the submissions of the assessee that the payment of Rs.5 lakhs, Rs.10 lakhs on 28.11.2013 and 10.02.2014 were paid in Financial Year 2013-14 and therefore cannot be a subject matter of addition in the case of the assessee for AY 2015-16 is found to be acceptable. The fact that the above payment of Rs.15,00,000/- was not made in FY 2014-15 was also confirmed by M/s Lokhandwala Kataria Construction Pvt. Ltd.. The same is mentioned in the notice u/s 142(1) of the Act dated 02.02.2022 as the said amount is shown as opening balance as on 01.04.2014 (placed at page no.4 of the paper book).

10.4. Therefore, considering the facts in totality, we are satisfied that the addition of Rs.5,17,67,531/- made by the Assessing Officer u/s 69 of the Act is not sustainable and the same is deleted. Grounds no.5 of the appeal of the assessee is allowed.

11.

In view of the fact that ground no.5 of the appeal of the assessee has been allowed, the other grounds of appeal became academic and are left open in this case.

12.

In the result, the appeal of the assessee is allowed.

Order pronounced in the open court on 22nd July, 2025

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