KOSUKE NISHI,BANGALORE vs. THE DEPUTY COMMISSIONER OF INCOME TAX, INTERNATIONAL TAXATION, CIRCLE 2(1),, BANGALORE

The brief facts of the case are that the assessee is an individual and not filed his return of income. The AO based on the information that the assessee had a foreign remittance of Rs. 1,05,45,608/- and purchase of foreign currency of Rs. 1,05,45,608/- had initiated proceedings u/s. 148 of the Act. The assessee had not responded to the notices and thereafter 1

As against the said order, the assessee filed an appeal before the Ld.CIT(A). The assessee submitted that the foreign remittances are out of the earning made in the earlier years which was also declared in the return of income and also enclosed the HDFC bank statement and prayed to allow the appeal. The Ld.CIT(A) had dismissed the appeal on the ground that the assessee had not responded to the several hearing notices.

The assessee challenged the said order before this Tribunal with a delay of 117 days. In the said delay condonation application, the assessee had explained the reasons for the delay. The main submission is that he is a citizen of Japan and came to India on official assignment and after his assignment, he left India whereas the communications from the department was sent to his old email-ID which was not in use after he left India and therefore the assessee has no knowledge about the proceedings and only after the Tax Consultant accessed the portal to know about the appeal proceedings, he came to know the appeal order and thereafter, the appeal was filed before this Tribunal with a delay. The assessee also submitted that the delay is neither willful nor wanton but due to the circumstances and prayed to condone the delay.

We have considered the reasons stated in the affidavit accompanying the delay condonation application and satisfied that there are valid reasons for not filing the appeal in time and therefore we are condoning the delay and proceeded to decide the appeal on merits.

At the time of hearing, the Ld.AR submitted that the assessee is a foreigner and he was deputed to India on an employment assignment between the period 01.08.2013 to 31.07.2017 and after completing his assignment, he gone back to Japan and thereafter he earned no income in India and his incomes are earned in the A.Ys. 2014-15 to 2018-19 and taxes were also paid while filing his return of income and the said earning was remitted to Japan and therefore it could not be an unexplained income u/s. 69 of the Act. The Ld.AR further submitted that all the hearing notices were sent to the service email-ID of the assessee which was not in use after leaving India and therefore the assessee could not be able to 2

The Ld.DR submitted that the assessee is a non-filer and also not co-operated with the department and therefore prayed to dismiss the appeal.

We have heard the arguments of both sides and perused the materials available on record.

From the submissions made by the assessee, it is evident that the assessee is a citizen of Japan and he came to India on an official assignment and declared his income in the return of income and also remitted the tax dues. While he was in service in India, he got one email i.d. and after he left India, the said mail was not used and became inactive and therefore all the communications sent by the AO as well as the Ld.CIT(A) were not received by him. These facts were clearly mentioned in the delay condonation affidavit. There is no contra evidences available to disprove the said contentions. Therefore the assessee is having valid reasons for not appearing before the authorities.

Considering the said facts, we are inclined to set aside the orders of the lower authorities and remit this issue to the file of the AO for fresh consideration after granting a reasonable opportunity of being heard to the assessee. It is also open to the assessee to furnish the necessary documents in support of his claim.

In the result, the appeal filed by the assessee is allowed for statistical purposes.