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Facts
The appeals and cross-objections arose from six separate orders of the National Faceless Appeal Centre (NFAC), Delhi, concerning assessment orders and penalty orders for the Assessment Years 1997-1998, 2001-2002, and 2008-2009. The core issue involved deposits made in a foreign bank account by the assessee, which was claimed to be funded by her deceased father's savings.
Held
The Tribunal found merit in the assessee's contention that the additions made by the Assessing Officer were not sustainable, as the funds in the foreign bank account originated from the father's earnings and had been accounted for in his assessment. The Tribunal set aside the additions and allowed the appeals for statistical purposes in some cases, while dismissing others.
Key Issues
Whether the addition of unexplained investment in the hands of the assessee for foreign bank account deposits is valid when the funds were allegedly from the father's savings and assessed in his hands. Whether penalty proceedings under Section 271(1)(c) are sustainable when the additions are deleted.
Sections Cited
143(3), 147, 149(1)(c), 250, 271(1)(c)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, G BENCH, MUMBAI
, 5311, 5138, 5137, 5503, 5502/Mum/2024 C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 Assessment Year: 2008-2009 Assistant Commissioner of Income Tax Circle 41 (1)(1), Mumbai Room No.828, 8th Floor, Kautilya Bhavan, Bandra Kurla Complex, Bandra (East), Mumbai-400051, Maharashtra …………. Appellant Vs. Satya Kim Yashpal 101 Palm Beach Building, Gandhigram Road, Juhu, Mumbai – 400049, Maharashtra. [PAN:AAFPY8166N] …………. Respondent C.O.No.270/MUM/2024 Assessment Year: 2008-2009 Satya Kim Yashpal 101 Palm Beach Building, Gandhigram Road, Juhu, Mumbai – 400049, Maharashtra. [PAN:AAFPY8166N]…………. Appellant Vs Deputy Commissioner of Income . Tax 41(1)(1), Mumbai Room No.828, 8th Floor, Kautilya Bhavan, Bandra Kurla Complex, Bandra (East), Mumbai-400051, Maharashtra …………. Respondent Appearance For the Appellant/Assessee : None For the Respondent/Department : Dr. Kishor Dhule; Shri Bhangepatil Pushkaraj Ramesh Date Conclusion of hearing : 12.03.2025 Pronouncement of order : 30.04.2025 O R D E R Per Bench: 1. These appeals and cross-objections from part of batch of matters which were heard together. The present appeals and cross- objections arise from six separate orders of National Faceless Appeal Centre (NFAC), Delhi [hereinafter referred to as the ‘CIT(A)’], passed under Section 250 of the Income Tax Act, 1961 [hereinafter referred to as ‘the Act’], whereby the Ld. C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 CIT(A) had granted relief in appeal preferred by the Assessee against the assessment orders/penalty orders for the Assessment Years 1997-1998, 2001-2002 and 2008-2009.Since the appeals arise from common factual matrix, the same are being disposed off by way of a common order.
When the appeals/cross-objections were taken up for hearing none was present on behalf of the Assessee. We have heard the Learned Departmental Representative and have perused the material on record including the orders is passed by authorities below and documents/orders furnished by the Learned Departmental Representative vide Letter, dated 03/03/2025, in compliance with the directions issued by the Tribunal.
3. On perusal of material on record following facts emerge:
3.1. The Assessee in the present case is the daughter of Mr. Jaswant Singh Yashpal [hereinafter referred to as ‘JSY’] and Mrs. Blodwen Yashpal. JSY was Person of Indian origin having British nationality. JSY worked as a pilot/flight engineer with the airlines outside India. After working with Kuwait Airlines for more than 25 years, JSY retired in the year 1993 and decided to live in United Kingdom before returning to India in the year 2001. JSY expired on 28/06/2017. 3.2. Mrs. Blodwen Yashpal [hereinafter referred to as ‘BSY’] is a British national was married to JSY. She was a housewife having no source of income. BSY is stated to be around 92 years of age.
3.3. The Assessee was cine artist resident in India and had been filing return of income in India on a regular basis. The Assessee is stated to be around 62 years of age.
3.4. It is admitted position that JSY had maintained a bank account C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 with HSBC, Geneva [hereinafter referred to as the ‘Foreign Bank Account’]. The family has taken a consistent stand that name of BSY and the Assessee were included in the Foreign Bank Account as second and third signatory, respectively, on account of administrative convenience on the basis of legal advice received. All the funds in the Foreign Bank Account were in the nature of salary income or savings of JSY and the interest income accruing on the account balance or fixed deposits made.
As per the copy of sworn statement of Peter Douglas Eric Long, principal in the firm Porter & Co, Solicitors London United Kingdom1, JSY was advised by him [as was generally advised to other pilots]to set up joint accounts with their wife/children to ensure that in case of untoward incident the family’s would have immediate access to funds since obtaining a probate take around 3 to 4 months depending upon the value of the estate of the deceased pilot. It is stated therein that when JSY returned to United Kingdom he was living off his capital arising from income JSY had earlier received from working for Kuwait Airways. It is also stated that in September 1996 he acted for purchasing Flat No. 44 Wildcroft Manor, Putney Heath, SW15 3TT) [hereinafter referred to as ‘the Foreign Asset’] which was finally purchased in July, 1997 in the name of BSY and the Assessee. All the funds for the purchase of the Foreign Asset came from JSY’s saving in the Foreign Bank Account. The Foreign Asset was, thereafter, sold in July 2007. 3.5. Reassessment proceedings were initiated in the case of JSY, BSY and Assessee for a number of assessment years within the time limit of 16 years from the end of relevant previous year prescribed in Section 149(1)(c) of the Act. The Assessing Officer 1 Part of documents enclosed with Letter, dated 03/03/2025 C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 had formed a belief that income liable to tax had escaped assessment since various credits in the Foreign Bank Account were not offered to tax in India. The reassessment proceedings for the various assessment years culminated into passing of the assessment orders under Section 143(3)/147 of the Act. Penalty under Section 271(1)(c) of the Act was also levied in respect of additions made.
3.6. The present batch of appeals/Cross objections pertains to the following assessment/re-assessment orders and penalty orders passed by the Assessing Officer: Appeal Assessment Proceeding Particulars Amount No. Year (INR) (Order Dated) (Impugned Order Dated) 5309 1997-1998 Reassessment Addition made - Unexplained Investment: 81,89,072 (21/08/2024) (24/03/2015) : 81,89,072/- 5311 1997-1998 Penalty Income sought to be evaded - Unexplained Investment: 81,89,072 (21/08/2024) (26/08/2015) : 81,89,072/- Penalty levied @ 300% of tax : 97,48,887/- 5138 2001-2002 Reassessment Addition made - Unexplained Investment: 96,80,005 (11/07/2024) (30/03/2015) : 96,80,005/- 5137 2001-2002 Penalty Income sought to be evaded (11/07/2024) (26/08/2015) - Unexplained Investment: 96,80,005 : 96,80,005/- Penalty levied @ 300% of tax : 1,01,42,250/- 5503 2008-2009 Reassessment Addition made - LTCG : 41,11,702 (21/08/2024) (30/03/2015) - Interest :13,97,387 : 55,27,429/- C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 5502 2008-2009 Penalty Income sought to be evaded (21/08/2024) (26/08/2015) -LTCG : 41,11,702 - Interest : 13,97,387 : 55,27,598/- Penalty levied @ 300% of tax : 40,53,510/- 3.7. In appeal preferred by the Assessee, against the above reassessment/penalty order, the CIT(A) granted relief to the Assessee by deleting the additions made or penalty levied, as the case may be.
3.8. Being aggrieved by the above relief granted by the CIT(A), the Revenue has preferred the present appeals before this Tribunal. The Assessee has filed Cross-objections supporting the order passed by the CIT(A).
3.9. In the above factual background we would now take appeals preferred by the Revenue for each assessment year along with the corresponding Cross-objections raised by the Assessee.
Assessment Year 1997-1998(Quantum Appeal) & C.O. No.260/Mum/2024 4. We would first take up quantum appeal preferred by the Revenue and the corresponding Cross Objections raised by the Assessee for the Assessment Year 1997-1998 arising from order, dated 21/08/2024, passed by the CIT(A) under Section 250 of the Actwhereby the Ld. CIT(A) had allowed the appeal of the Assessee against the Assessment Order, dated 24/03/2015, under Section 143(3) read with Section 147 of the Act for the Assessment Year 1997-1998.
The Revenue has raised the following grounds of appeal in ITA No.5309/Mum/2024: C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 “1. Whether in facts and circumstances of this case the Ld. CIT(A) has erred in allowing the appeal of the assessee without appreciating the fact that the assessee has not submitted any corroborating evidence in support of her contention which can bring out the true nature of the deposits made in the Foreign Bank Account.
2. Whether in facts and circumstances of this case the Ld. CIT(A) has erred in allowing the appeal of the assessee, without noticing that the order u/s 250 passed for the AY 2005-06 is with respect to the undisclosed deposits in foreign bank account and owning of undisclosed immovable property outside India. 3 Whether in facts and circumstances of this case the Ld. CIT(A) has erred in acknowledging the fact that the AD has passed a speaking order based on facts and documents furnished by the assessee, whereas the Ld. CIT(A) is of use that the assessment done is protective in nature. 4 Whether in facts and circumstances of this case the Ld. CIT(A) has erred in relying upon the judgment of Hon‟ble Supreme Court of India in case of Lalji Haridas vs ITO, Supreme Court, 1961-43 ITR 387 SC wherein the facts and circumstances have no resemblance with the instant case.
5. Whether on facts and circumstances of this case the Ld. CIT(A) has erred in allowing the appeal of the assessee by already presuming that the deposits pertains to the father of the Assessee, without providing a chance to AO by the way of calling remand report, if any additional evidence were producedbefore the appellate authority.”
6. The Assessee has raised following cross-objections in C.O. No.260/Mum/2024:
"1. On the facts and circumstances of the case and in law, order u/s143(3) rws. 147 dt.24-03-2015 is bad in law because it did not take into consideration that the property was actually acquired and funded by the father of the assessee who was a Non-Resident; and as the same could not be assessed in his hands being a Non- C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 Resident, same was added and assessed in the name of the assessee; assessment made u/s. 143(3) rws. 147 is bad in law and is liable to be quashed.
2. On the facts and circumstances of the case and in law, order u/s143(3) rws. 147 dt. 24-03-2015 is bad in law because it did not take into consideration that the father of the assessee specifically disclosed during his assessment proceedings that the property was actually purchased by him who was a Non-Resident through his HSBC foreign bank account; assessment made u/s143(3) rws. 147 is bad in law and is liable to be quashed.
3. On the facts and circumstances of the case and in law, adding and assessing the property outside India of a Non- Resident in the hands of the Resident Daughter as unexplained investment in foreign immovable property is bad in law and assessment made u/s143(3) rws. 147 is liable to be quashed."
On perusal of the Assessment Order we find that the addition of INR.81,89,072/- was made in the hand of the Assessee, being 50% of investment made in the acquisition of the Foreign Asset, holding the same to be unexplained investment.
During the appellate proceedings before the CIT(A), the Assessee had contended that the Foreign Asset was purchased from the earnings/savings of her father (JSY) and had furnished following documents/details in support of the same vide submissions dated 12/08/2024:
1. 1. Sworn Statement of Solicitor, Mr. Peter Douglas Eric Long.
2. Certificate of Service in appreciation for 25 years received from M/s. Kuwait Airways dated 26th March 1989 on name of my father, Mr. J.S. Yashpal.
3. Receipts of Fund transfer in account of Mr. J.S. Yashpal from the office of M/s. Porter & Co. (Firm of Solicitors) dated 03.10.96 and 16.10.1996.
4. Power of Attorney signed in favour of Mr. Peter Douglas Eric Long dated 15th January 2007. C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 5. Copy of Purchase of Land Register of Title dated 17.07.1997.
6. Copy of Sale of Land Register of Title dated 23.07.2007.
7. Form 19 (JP) 8. License to Assign 9. By placing reliance on the above documents, the Learned CIT(A) deleted the addition of INR.81,89,072/- made in the hands of the Assessee.
Therefore, the Revenue is now in appeal before the Tribunal contending, inter alia, that the CIT(A) has proceeded to admit the additional evidence and grant relief without complying with the provisionscontained in Rule 46A of the Income Tax Rules 1962 (for short ‘IT Rules’).
On perusal of material on record, we find that the Assessing Officer had made the addition holding that the Assessee had failed provide evidence of source of investment made in the purchase of Foreign Asset. Therefore, the evidence furnished by the Assessee before the CIT(A) was in the nature of additional evidence. On perusal of the impugned order passed by the CIT(A), we find that no remand report has been called for in relation to additional evidence and the same has been taken into consideration without confronting the Assessing Officer. Accordingly, we find merit in the contention advance on behalf of the Revenue that the provisions contained in Rule 46A of the IT Rules were not complied with. Accordingly, we set aside the order passed by the CIT(A). However, taking note of the fact that the Assessing Officer had made the addition holding that the Assessee had failed to furnish supporting documents and the fact Assessee has furnished documents/details before the CIT(A) in support of the contention that the investment made in the C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 Foreign Asset were sourced from the earning/savings of the father of the Assessee (JSY), we deem it appropriate to remand the issue back to the file of Assessing Officer with the directions to adjudicate the issue afresh after taking into consideration the additional evidence furnished by the Assessee before CIT(A). We find that in Paragraph 7.3 of the Assessment Order, the Assessing Officer has recorded that father of the Assessee (i.e. JSY) had, during the assessment proceedings for the Assessment Year 1997-1998, claimed that he had purchased the Foreign Asset using funds in the Foreign Bank Account. From the material on record it is not clear whether additions were also made in the hands of the JSY. It is settled law that same income cannot be brought to tax in the hands of two assessees at the same time.Therefore, the Assessing Officer is directed to take into consideration the assessment framed in the hands of JSY in respect of investment made in the Foreign Asset while deciding the issue afresh as per the aforesaid directions. In terms of aforesaid, Ground No.5 raised by the Revenue is allowed whereas Ground No.1, 2, 3 and 4 raised by the Revenue are dismissed as having been rendered infructuous.
As regards the Cross Objection, filed by the Assessee are concerned, since we have restore the issue back to the file of Assessing Officer, the same are rendered infructuous at this stage and are, therefore, dismissed.
In result, in terms of paragraph 11 & 12 above, the appeal preferred by the Revenue is allowed for statistical purposes while the Cross-Objection preferred by the Assessee are dismissed.
Assessment Year 1997-1998(Penalty Appeal) & C.O. No.267/Mum/2024 14. Now, we will take up ITA No.5311/Mum/2024 and Cross C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 Objection No.267/Mum/2024 for the Assessment Year 1997- 1998 arising from the order of the CIT(A) whereby the penalty of INR.97,48,887/-levied under Section 271(1)(c) of the Act was deleted by the CIT(A).
On perusal of the order impugned, we find that the CIT(A) had deleted the penalty levied under Section 271(1)(c) of the Act on the ground that vide order dated 21/08/2024, additions forming basis of levy of penalty were deleted in the quantum appeal preferred by the Assessee against the assessment order for the Assessment Year 1997-1998. In the appeal preferred by the Revenue [ITA No.5309/Mum/2024] challenging the against the aforesaid order of the CIT(A) passed in quantum appeal, we have set aside the additions and have restore the issue back to the file of Assessing Officer. The additions on the basis of which penalty was levied have been set aside and therefore, the penalty levied on the basis of the same cannot be sustained.However, the Assessing Officer would be at liberty to initiate penalty proceedings as per law while passing the assessment order in terms of directions issued in quantum appeal [ITA No.5309/Mum/2024]. In view of the aforesaid, the appeal preferred by the Revenue is dismissed.
Since, we have dismissed the appeal preferred by the Revenue, the grounds raised in the Cross Objections do not require adjudication and the same are also dismissed.
In result, the appeal and the cross objections are dismissed.
Assessment Year 2008-2009(Quantum Appeal) & C.O. No.270/Mum/2024
We would next take up quantum appeal preferred by the Revenue and the corresponding Cross Objections raised by the C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 Assessee for the Assessment Year 2008-2009 arising from order, dated 21/08/2024, passed by the CIT(A) under Section 250 of the Act whereby the Ld. CIT(A) had allowed the appeal of the Assessee against the Assessment Order, dated 30/03/2015, under Section 143(3) read with Section 147 of the Act for the Assessment Year 2008-2009.
The Revenue has raised the following grounds of appeal in ITA 5503/Mum/2024:
“1. Whether in facts and circumstances of this case the Ld. CIT(A) has erred in allowing the appeal of the assessee without appreciating the fact that the assessee has not submitted any corroborating evidence in support of her contention which can bring out the true nature of the deposits made in the Foreign Bank Account. 2 Whether in facts and circumstances of this case the Ld. CIT(A) has erred in allowing the appeal of the assessee, without noticing that the order u/s 250 passed for the AY 2005-06 is with respect to the undisclosed deposits in foreign bank account and owning of undisclosed immovable property outside India.
3. Whether in facts and circumstances of this ease the Ld. CIT(A) has erred in acknowledging the fact that the 40 has passed a speaking order based on facts and documents furnished by the assessee, whereas the Ld CIT(A) is of view that the assessment done is protective in nature.
4. Whether in facts and circumstances of this case the Ld. CIT(A) has erred in relying upon the judgment of Hon'ble Supreme Court of India in case of Lala Haridas vs ITO, Supreme Court, 1961 43 ITR 387 SC wherein the facts and circumstances have no resemblance with the instant case. 5 Whether in frets and circumstances of this case the Ld. CIT(A) has erred in allowing the appeal of the assessee by already presuming that the deposits pertains to the father of the Assessee, without providing a chance to AO by the C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 way of calling remand report, if any additional evidences were produced before the appellate authority. 6 Whether in facts and circumstances of this case the Ld. CIT (A) has erred in deleting the addition made on grounds of LTCG on a sup-moto basis, even during the course of the appellate proceedings.
7. Whether on facts and in law the Ld. CIT(A) has erred in holding that the Assessee did not raise that issue during the appellate proceedings „inadvertently‟ as there is no evidence regarding the same.” 20. The Assessee has raised following cross-objections in CO No.270/Mum/2024:
“1. On the facts and circumstances of the case and in law, order under Section 143(3) rws. 147 is bad in law because the AO himself accepted the fact that the amount has already been offered and assessed in the bands of assessee's father, same was added again and assessed again in the hands of the assessee on protective basis; assessment made u/s143(3) rws. 147 is bad in law and is liable to be quashed. 2 On the facts and circumstances of the case and in law, order under Section 143(3) rws. 147 is bad in law became it did not take into consideration that the said income has been charged to tax in the hands of the father of the assessee, assessment made u/s143(3) rws. 147 is bad in law and is liable to be quashed.
On the facts and circumstances of the case and in law, filing appeal to Hon'ble Tribunal when the tax effect in the given case is much lower than the monetary threshold as specified in CBDT Circular No. 09/2024 dated 17 September 2024, is bad in law and is liable to be quashed.
On the facts and circumstances of the case and in law, order under Section 143(3) rws. 147 is bad in law because it did not take into consideration, Article 6 of the Double Taxation Avoidance Agreement (DTAA) signed between India and UK clause 1 which clearly specifies that the income from immovable property may be taxed in the C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 Contracting state in which such property is situated; the taxability of the property transaction was rightfully vested with the UK authorities and not with the Indian authorities, assessment and addition made u/s143(3) rws. 147 on the property situated in UK is bad in law, void ab initio and liable to be quashed.”
On perusal of record we find that while framing assessment under Section 143(3) read with Section 147 of the Act vide Assessment Order dated 30/03/2015, the Assessing Officer had made following additions:
(a) Addition of INR.41,11,702/- [INR.82,23,404/- x 50%] holding the same to be Long Term Capital Gain arising from sale of the Foreign Asset taxable in the hands of the Assessee.
(b) Addition of INR.13,97,387/- holding the same to be interest credited to the Foreign Bank Account chargeable to tax in the hands of the Assessee as interest income on protective basis.
In appeal preferred by the Assessee against the above additions, the CIT(A) deleted the additions. Therefore, the Revenue has preferred the present appeal before the Tribunal while the Assessee has filed Cross Objection.
On perusal of the order impugned we find that while deleting the additions made on account of Long Term Capital Gain, the CIT(A) had placed reliance upon the decision of First Appellate Authority for the Assessment Year 1997-1998 whereby the addition on account of unexplained investment in respect of funds used to purchase the Foreign Asset was deleted on the ground that the funds pertained to the father of the Assessee. In appeal preferred by the Revenue for the Assessment Year 1997-1998 C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 [ITA No.5309/Mum/2024] against the aforesaid order of the First Appellate Authority for the Assessment Year 1997-1998, we have restored the issue back to the file of the Assessing Officer (with directions). We note that while bringing to tax the Long Term Capital Gains arising from sale of the Foreign Asset in the hands of the Assessee, the Assessing Officer had also taken into consideration the fact that investment for acquisition of the Foreign Asset was considered as unexplained investment in the hands of the Assessee in Assessment Year 1997-1998. Further, we note that the Revenue has challenged the relief granted by the CIT(A) on the grounds that undisclosed deposits in the foreign accounts were used for the purchase of the Foreign Asset during the previous year relevant to the Assessment Year 1997- 1998.Accordingly, adjudication of issues pertaining to Assessment Year 1997-1998 would have a bearing on the adjudication of the issue of taxability of Long Term Capital Gains in the hands of the Assessee in the Assessment Year 2008-2009. Therefore, we deemed it appropriate to set aside the issue of taxability of Long Term Capital Gain arising from sale of the Foreign Asset back to the file of Assessing Officer with the directions to decide the issue afresh after taking into consideration the assessment order to be passed by the Assessing Officer for the Assessment Year 1997-1998 pursuant to the directions issued by the Tribunal in pertaining to Assessment Year 1997-1998. Accordingly, addition of INR.41,11,702/- made by the Assessing Officer in the hands of the Assessee as taxable Long Term Capital Gain is set aside. We note that the Assessee has contended before the CIT(A) that Long Term Capital Gains were taxable in the hands of the father (i.e. JSY) since he was the owner of the Foreign Asset and the same had been taxed in his hand on protective basis. On perusal of order, dated 26/08/2015 C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 passed under Section 271(1)(c) of the Act in the case of Jaswant Singh Yashpal (JSY – father of the Assessee), we note that an addition of Capital Gains INR.82,23,404/- was made and in respect of the same penalty was also levied for the Assessment Year 2008-2009. Accordingly, the Assessing Officer is also directed to take into consideration the status of additions made in the hands of JSY while passing the Assessment Order as per the aforesaid directions.
As regards the addition of interest of INR.13,97,387/- is concerned, we note that the Assessing Officer had recorded as under:
“7.4 From the aforesaid statement it is found that the interest of GBP 17,926.12 was earned by the assessee in the joint bank account with father Mr. Yashpal Jaswant Singh (PAN: ACNPY1988J) and mother Mrs. Yashpal Blodwen, (PAN: ACNPY1987H). The amount in INR comes to Rs.13,97,387/-. The aforesaid amount has already been offered and assessed in the hands of her father Mr. Yashpal Jaswant Singh, PAN: ACNPY1988J for the assessment year under consideration. However, since the assessee is a joint account holder and equal beneficiary of the bank account, to protect the interest of the revenue, the income earned from this HSBC account of Rs.13,97,387/- during A.Y. 2008-09 is added to the total income of the assessee, on protective basis. (Int. from foreign bank Rs.13,97,387/-) 25. Thus, it is clear that the interest income of INR.13,97,387/- has been offered to tax by the father of the Assessee and the Assessing Officer has made in addition in respect of the same while passing the Assessment Order, dated 30/03/2015, for the Assessment Year 2008-2009. We note that vide order dated 26/08/2015 passed under Section 271(1)(c) of the Act penalty has also been levied in respect of interest income of INR.13,97,387/-. Once the aforesaid interest income has been C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 offered to tax by the father of the Assessee and the same has also been taxed as such in the assessment framed, the question of taxing the same interest income in the hands of the Assessee does not arise. Accordingly, addition of INR.13,97,387/- in the hands of the Assessee cannot be sustained. To this extent the conclusion drawn by the CIT(A) is confirmed, although, for different reason as stated hereinbefore.
In view of the above, all the grounds raised by the Revenue are treated as partly allowed. Similarly,all the grounds raised by the Assessee by way of Cross Objections are treated as partly allowed.
In result, the appeal preferred by the Revenue and the Cross Objection filed by the Assessee are treated as partly allowed.
Assessment Year 2008-2009 (Penalty Appeal) & C.O. No.272/Mum/2024 28. Now, we will take up ITA No.5502/Mum/2024 and Cross Objection No.272/Mum/2024 for the Assessment Year 2008- 2009 arising from the order of the CIT(A) whereby the penalty of INR.40,53,510/- levied under Section 271(1)(c) of the Act was deleted by the CIT(A).
On perusal of the order impugned, we find that the CIT(A) had deleted the penalty levied under Section 271(1)(c) of the Act on the ground that vide order dated 21/08/2024, additions forming basis of levy of penalty were deleted in the quantum appeal preferred by the Assessee against the assessment order for the Assessment Year 2008-2009. In the appeal preferred by the Revenue [ITA No.5503/Mum/2024] challenging the against the aforesaid order of the CIT(A) passed in quantum appeal, we have (a) set aside the addition pertaining to Long Term Capital C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 Gain of INR.41,11,702/- and have restore the issue back to the file of Assessing Office, and (b) confirmed the deletion of addition of INR.13,97,387/- made in respect of interest income. Thus, the additions on the basis of which penalty was levied have been set aside/deleted and therefore, the penalty levied on the basis of the same cannot be sustained. However, the Assessing Officer would be at liberty to initiate penalty proceedings as per law while passing the assessment order in terms of directions issued in quantum appeal. In view of the aforesaid, the appeal preferred by the Revenue is dismissed.
Since, we have dismissed the appeal preferred by the Revenue, the raised in the Cross Objection do not require adjudication and the same are also dismissed.
In result, the appeal preferred by the Revenue and the Cross Objections are dismissed.
Assessment Year 2001-2002(Quantum Appeal) & C.O. No.261/Mum/2024
We would next take up quantum appeal preferred by the Revenue and the corresponding Cross Objections raised by the Assessee for the Assessment Year 2001-2002 arising from order, dated 11/07/2024, passed by the CIT(A) under Section 250 of the Act whereby the Ld. CIT(A) had allowed the appeal of the Assessee against the Assessment Order, dated 30/03/2015, under Section 143(3) read with Section 147 of the Act for the Assessment Year 2001-2002.
The Revenue has raised the following grounds of appeal in ITA 5138/Mum/2024: “1. Whether in facts and circumstances of this case the Ld. CIT(A) has erred in allowing the appeal of the assessee without appreciating the fact that the assessee has not C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 submitted any corroborating eusdence in support of her contention which can bring out the true nature of the deposits made in the Foreign Bank Account.
2. Whether in facts and circumstances of this case the Ld. CIT(A) has erred in allowing the appeal of the assessee, without noticing that the order u/s 250 passed for the AY 2005-06 is with respect to the interest earned on the foreign bank account, whereas, in the instant case the issue pertains to the deposit of GBP 1,38.696.83 and GBP 1,28,799.62 (Rate of Exchange Rs. 67.34), which amounts to Rs. 1.93.60,010 and 50% of the aforesaid amount has been rightly added to the resident account holders amounting to Rs. 96,80,005/.
3. Whether in facts and circumstances of this case the Ld. CIT(A) has erred in acknowledging the fact that the AO has passed a speaking order based on facts and documents furnished by the assessee, whereas the Ld. CIT(A) is of view that the assessment done is protective in nature.
4. Whether in facts and circumstances of this case the Ld. CIT(A) has erred in relying upon the Judgement of Hon'ble Supreme Court of India in case of Lalja Haridas vs ITO, Supreme Court, 1961 43 ITR 187 SC wherein the facts and circumstances have no resemblance with the instant case.
5. Whether in facts and circumstances of this case the Ld. CIT(A) has erred in allowing the appeal of the assessee by already presuming that the deposits pertains to the father of the Assessee, without providing a chance in AO by the way of calling remand report, if any additional evidences were produced before the appellate authority."
34. The Assessee has raised following cross-objections in CO No.261/Mum/2024: “1. On the facts and circumstances of the case and in law, order under Section143(3) rws. 147 dt.30-03-2015 is bad in law because it did not take into consideration that the HSBC account and the deposits made actually belonged to the father of the assessee who was a Non-Resident; and as the same could not be assessed in his hands being a Non-Resident, same was added and assessed in the name of the assessee as unexplained investment, assessment made under Section 143(3) rws. 147 is bad in law and is liable to be quashed.
2. On the facts and circumstances of the case and in law, C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 order u/s143(3) rws. 147 dt. 30-03-2015 is bad in law because it did not take into consideration that the said income has been charged to tax in the hands of the father of the assessee who was a Non-Resident; assessment made u/s143(3) rws, 147 is bad in law and is liable to be quashed.
3. On the facts and circumstances of the case and in law, adding and assessing the deposits made in foreign account of a Non-Resident in the hands of the Resident Daughter because she is just a joint holder for operational convenience as unexplained investment in foreign bank account is bad in law and assessment made u/s143(3) rws. 147 is liable to be quashed.”
35. On perusal of record, it emerges that for the Assessment Year 2001-2002 assessment was framed by the Assessee vide Assessment Order, dated 30/03/2015, passed under Section 143(3) read with Section 147 of the Act whereby addition of INR.96,80,005/- was made by the Assessing Officer in the hands of the Assessee in respect of amounts credited to the Foreign Bank Account holding as under:
7.3. The statement of the aforesaid HSBC bank account during the assessment year 2001-02 shows the following transactions. xx xx The account is jointly held by the assessee with her father Shri Yashpal Jawan Singh, PAN ACNPY1988J and her mother assessee Ms Blodwen Yashpal (PAN ACNPY1987H). In the case of Shri Yashpal Jaswant Singh, PAN: ACNPY1988), vide reply furnished on 24.12.2014 it has been submitted that the details of fixed deposits and interest amount are not available. Two deposits of GBP 1,58,096.83 and 1,28,709.62 has been made on 31.10.2000 and 20.11.2000, respectively and there is an opening balance of GBP 846.52. Therefore, total deposits comes to GBP 2,87,496.45. Since, no explanation regarding the source of the aforesaid deposits have been furnished, the aforesaid amount is liable to be added to total income of the account holders. Since, the father of the assessee Shri Yashpal Jaswant Singh, PAN: ACKPY1985J is Non-Resident during the assessment year under consideration, the 50% of amount is assessed in each of the two resident joint account holders. Ms Blodwen Yashpal (PAN ACNPY1987H) and the assessee, Ms Satya Kim Yashpal (PAN: AAFPY8166N), who are C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 equal beneficiaries of the aforesaid bank accounts. 7.4. Accordingly GBP1,43,748/22 is assessed in the hands of the assessee as unexplained investment. Accordingly addition of Rs. 96,80,005/- (GBP@Rs 67.34) is made to the total income as unexplained investment u/s 69 of the Act. (Add:Rs. 96,80,005/-) Penalty proceedings u/s. 271(1)(c) are initiated for concealment and furnishing inaccurate particulars of income. Penalty proceedings u/s 271(1)(b) are initiated for non- compliance as statement of HSBC bank account was not furnished in response to notice dt 10.10.2014 rd under sections 142(1) of the income-tax Act 1961.
36. The above addition made by the Assessing Officer was challenged by the Assessee in appeal before the CIT(A). The CIT(A) deleted the above addition made by the Assessing Officer by placing reliance upon the order passed by the First Appellate Authority in the case of Assessee in quantum appeal preferred against Assessment Order for the Assessment Year 2005-2006.
Being aggrieved, the Revenue has preferred the present appeal before the Tribunal. The Assessee has filed Cross-Objection.
On perusal of record it emerges that Assessee had taken a stand before the authorities below that the amount reflected in the Foreign Bank Account represented amount received on maturity of Fixed Deposits which were made by the father of the Assessee out of his earnings/savings. Before the CIT(A) it was contended by the Assessee that the Assessing Officer had failed to appreciate that sufficient explanation was provided by the Assessee regarding the sources of deposits/credits reflected in the Foreign Bank Account. On the other hand, the stand taken by the Revenue is that Assessee has failed to bring on record sufficient material to support the aforesaid contention. The Learned Departmental Representative submitted that reliance placed by the CIT(A) on the appellate order passed in quantum C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 appeal for the Assessment Year 2005-2006 pertained to interest income added in the hands of the Assessee on protective basis and therefore, the same had no application to the facts of the assessment year under consideration where addition was made on account of failure of the Assessee to provide explanation of source of investments/deposits as reflected in the Foreign Bank Account.
Having considered the stand taken by the Assessee before the authorities below and submissions advanced by the Learned Departmental Representative, we find some merits on the contentions advanced on behalf of the Revenue. The Learned CIT(A) has deleted the addition of INR.96,80,005/- made in the hands of the Assessee by simply placing reliance upon the decision of the First Appellate Authority for the Assessment Year 2005-2006 without taking into consideration the facts of the present case. On perusal of the order impugned, we find that after reproducing the statement of the facts, grounds of appeal
and assessment order, the CIT(A) has concluded as under: “6. Decision on point-wise grounds of appeal preferred by the appellant: Ground No. 3
3. The learned Assessing Officer could not have added Rs.96,80,005/- as unexplained Investment in foreign bank account merely on presumption and conjectures by ignoring the irrefutable evidence furnished by the Appellant. Decision: Ground no. 3, being on the merit of the case, is dealt first. In the appellant's own case for A.Y. 2004-05 and A.Y. 2005- 06, the appellate order has been decided in her favour on the same issue. The relevant portion of the said appellate order for A.Y. 2005-06 is pasted as under:
6. Observation and decision At the outset and before dealing with the grounds of appeal it needs to be stated that C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 evidently the above submission has no relevance in the context of the present case. The only addition made by the AO in the impugned assessment order quoted above was of Rs. 2,63,760/-,being interest stated to have been earned by the appellant from a foreign bank account with HSBC, on a protective basis. Also both grounds of appeal are directed against the said addition. The written submission is, therefore, ignored. 6.1. Subject to the above observations, both the grounds of appeal viz. Ground Nos.1&2 are carefully considered w.r.t. the facts of the case and the applicable provisions of law and adjudicated together as under 6.1.1. xx xx 6.1.2. xx xx 6.1.3. Law is also well settled on the issue that in order to make a protective assessment there has to be a substantive assessment first. In this case there is no quarrel that the protective assessment was completed by the AD after the same income was first assessed in the hands of the appellant's father. However, the income of Rs. 2,63,760/-was offered to tax by the appellant's father in his return and the addition was not made by the AO consequent to a process of investigation or enquiry. Therefore, the exigibility of the said income to tax in the hands of appellant's father was never in doubt. Thus, on the facts and circumstances of the present case, protective addition of the same amount again in the hands of the appellant was contrary to the law laid down by the Hon'ble Supreme Court in Lalji Haridas v..ITO (supra) and therefore, deserves to be deleted. 6.1.4. In view of the above, the addition of Rs. 2.63,760/ is deleted and Ground Nos. 1&2 are allowed.
7. In the result the appeal is Allowed” Respectfully following the aforesaid decision of the appellate authority in the other years of the appellant‟s appeal, and as the bank account leading to the addition under dispute is the same, the addition made in this years is also deserves to be deleted”
40. A perusal of the above would show that there is no discussion C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 regarding the explanation offered by the Assessee in relation to the source of deposits/investments in the foreign bank account. However, at the same time, we note that the Assessing Officer has in Paragraph 7.3 of the Assessment Order reproduced the statement of the Foreign Bank Account in a tabular form and the same is as under: “7.3. The statement of the aforesaid HSBC bank account during the assessment year 2001-02 shows the following transactions. Date Transactions details Debit Credit Balance Interest/ Income 01.07.2000 Balance carried over 846.52 846.52 31.10.2000 Fiduciary Deposit 1,58,696.83 159543.35 Repayment 31.10.2000 Trf ANZ Fv S K Yashpal 1,58,696.83 846.52 20.11.2000 Fiduciary Deposit 1,04,012 (1,03,165.48) Investment 20.11.2000 TRF MRS B Yashpal 25,013 (1,28,178.62) 20.11.2000 Fiduciary Deposit 1,28,799.62 621.14 Repayment 31.12.2000 Account Statement Fee 60 541.14 The account was jointly held …………………..”
41. A bare perusal of the above shows that GBP.1,58,693.83/- and GBP.1,28,799.62/- credited to the Foreign Bank Account on 31/10/2000 and 20/11/2000, respectively, were ‘Fiduciary Deposit Repayment’. This clearly supports the stand taken by the Assessee that the aforesaid two amounts were received on the maturity of deposits made in the earlier years. The Assessee has, in the Cross Objection, taken a stand that the source of the deposits was earning/savings of her father and the amount received on maturity of such deposits could not have been brought to tax in the hands of the Assessee as unexplained investment during the relevant previous year. Keeping in view of the facts as emerging from the statement of the Foreign Bank C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 Account reproduced in paragraph 7.3 of the Assessment Order, and taking into consideration the totality of the facts and circumstances of the present case, we concur with the conclusion drawn by the CIT(A) that additions of INR.96,80,005/- made in the hands of the Assessee cannot be sustained (although for different reasons). In terms of the aforesaid, the Cross-Objection preferred by the Assessee are allowed and order of CIT(A) deleting the addition of INR.96,80,005/- made by the Assessing Officer is confirmed. Accordingly, the grounds raised by the Revenue in appeal are dismissed.
42. In result, the Cross Objections filed by the Assessee are allowed and the appeal preferred by the Revenue is dismissed.
Assessment Year 2001-2002(Penalty Appeal) C.O. No.269/Mum/2024 43. Now, we will take up and Cross Objection No.269/Mum/2024 for the Assessment Year 2001- 2002 arising from the order of the CIT(A) whereby the penalty of INR.96,80,005/- levied under Section 271(1)(c) of the Act was deleted by the CIT(A).
Since the order of CIT(A) deleting quantum additions has been confirmed while adjudicating & CO No.261/Mum/2024 hereinabove, the penalty levied in respect of the same cannot be sustained. Therefore, the appeal preferred by Revenue challenging the order passed by the CIT(A) deleting the penalty levied under Section 271(1)(c) of the Act in relation to additions made vide Assessment Order dated 30/03/2015 for the Assessment Year 2001-2002 is dismissed. Consequently, the Cross Objection preferred by the Assessee do not require adjudication and are, therefore, dismissed. C.O.No.260, 267,270, 272, 261, 269/Mum/2024 Assessment Year 1997-1998, 2001-2002 & 2008-2009 45. In result, appeal preferred by the Revenue and the Cross Objection preferred by the Assessee are dismissed.
In conclusion:
Assessment Year 1997-1998 (Quantum Appeal) : Allowed for statistical purpose C.O. No.260/Mum/2024 : Dismissed Assessment Year 1997-1998 (Penalty Appeal) : Dismissed C.O. No.267/Mum/2024 : Dismissed Assessment Year 2008-2009 (Quantum Appeal) : Partly Allowed C.O. No.270/Mum/2024 : Partly Allowed Assessment Year 2008-2009 (Penalty Appeal) : Dismissed C.O. No.272/Mum/2024 : Dismissed Assessment Year 2001-2002 (Quantum Appeal) : Dismissed C.O. No.261/Mum/2024 : Allowed Assessment Year 2001-2002 (Penalty Appeal) : Dismissed C.O. No.269/Mum/2024 : Dismissed