DCIT 41.1.1, KAUTILYA BHAWAN, MUMB vs. SATYA KIM YASHPAL, MUMBAI

order \n: 12.03.2025\n: 30.04.2025\nORDER\nPer Bench:\n1. These appeals and cross-objections from part of batch of matters\nwhich were heard together. The present appeals and cross-\nobjections arise from six separate orders of National Faceless\nAppeal Centre (NFAC), Delhi (hereinafter referred to as the\n`CIT(A)']', passed under Section 250 of the Income Tax Act,\n1961 [hereinafter referred to as `the Act'], whereby the Ld.\nCIT(A) had granted relief in appeal preferred by the Assessee\nagainst the assessment orders/penalty orders for the\n Assessment Years 1997-1998, 2001-2002 and 2008-2009.Since\nthe appeals arise from common factual matrix, the same are\nbeing disposed off by way of a common order.\n2. When the appeals/cross-objections were taken up for hearing\nnone was present on behalf of the Assessee. We have heard the\nLearned Departmental Representative and have perused the\nmaterial on record including the orders is passed by authorities\nbelow and documents/orders furnished by the\nLearned\nDepartmental Representative vide Letter, dated 03/03/2025, in\ncompliance with the directions issued by the Tribunal.\n3. On perusal of material on record following facts emerge:\n3.

3. The Assessee was cine artist resident in India and had been filing\nreturn of income in India on a regular basis. The Assessee is\nstated to be around 62 years of age.\n3.

19. (JP)\nLicense to Assign\nBy placing reliance on the above documents, the Learned CIT(A)\ndeleted the addition of INR.81,89,072/- made in the hands of the\nAssessee.\nTherefore, the Revenue is now in appeal before the Tribunal\ncontending, inter alia, that the CIT(A) has proceeded to admit\nthe additional evidence and grant relief without complying with\nthe provisionscontained in Rule 46A of the Income Tax Rules\n1962 (for short `IT Rules').\nOn perusal of material on record, we find that the Assessing\nOfficer had made the addition holding that the Assessee had\nfailed provide evidence of source of investment made in the\npurchase of Foreign Asset. Therefore, the evidence furnished by\nthe Assessee before the CIT(A) was in the nature of additional\nevidence. On perusal of the impugned order passed by the\nCIT(A), we find that no remand report has been called for in\nrelation to additional evidence and the same has been taken into\nconsideration without confronting the Assessing Officer.\nAccordingly, we find merit in the contention advance on behalf of\nthe Revenue that the provisions contained in Rule 46A of the IT\nRules were not complied with. Accordingly, we set aside the\norder passed by the CIT(A). However, taking note of the fact\nthat the Assessing Officer had made the addition holding that the\nAssessee had failed to furnish supporting documents and the fact\nAssessee has furnished documents/details before the CIT(A) in\nsupport of the contention that the investment made in the\n9\nForeign Asset were sourced from the earning/savings of the\nfather of the Assessee (JSY), we deem it appropriate to remand\nthe issue back to the file of Assessing Officer with the directions\nto adjudicate the issue afresh after taking into consideration the\nadditional evidence furnished by the Assessee before CIT(A). We\nfind that in Paragraph 7.3 of the Assessment Order, the\nAssessing Officer has recorded that father of the Assessee (i.e.\nJSY) had, during the assessment proceedings for the Assessment\nYear 1997-1998, claimed that he had purchased the Foreign\nAsset using funds in the Foreign Bank Account. From the\nmaterial on record it is not clear whether additions were also\nmade in the hands of the JSY. It is settled law that same income\ncannot be brought to tax in the hands of two assessees at the\nsame time.Therefore, the Assessing Officer is directed to take\ninto consideration the assessment framed in the hands of JSY in\nrespect of investment made in the Foreign Asset while deciding\nthe issue afresh as per the aforesaid directions. In terms of\naforesaid, Ground No.5 raised by the Revenue is allowed\nwhereas Ground No.1, 2, 3 and 4 raised by the Revenue are\ndismissed as having been rendered infructuous.\n12.\nAs regards the Cross Objection, filed by the Assessee are\nconcerned, since we have restore the issue back to the file of\nAssessing Officer, the same are rendered infructuous at this\nstage and are, therefore, dismissed.\n13.\nIn result, in terms of paragraph 11 & 12 above, the appeal\npreferred by the Revenue is allowed for statistical purposes while\nthe Cross-Objection preferred by the Assessee are dismissed.\n Assessment Year 1997-1998(Penalty Appeal)\nITA No. 5311/MUM/2024 & C.O. No.267/Mum/2024\n14.\nNow, we will take up and Cross\n10\nObjection No.267/Mum/2024 for the Assessment Year 1997-\n1998 arising from the order of the CIT(A) whereby the penalty of\nINR.97,48,887/-levied under Section 271(1)(c) of the Act was\ndeleted by the CIT(A).\n15.\nOn perusal of the order impugned, we find that the CIT(A) had\ndeleted the penalty levied under Section 271(1)(c) of the Act on\nthe ground that vide order dated 21/08/2024, additions forming\nbasis of levy of penalty were deleted in the quantum appeal\npreferred by the Assessee against the assessment order for the\n Assessment Year 1997-1998. In the appeal preferred by the\nRevenue [ITA No.5309/Mum/2024] challenging the against the\naforesaid order of the CIT(A) passed in quantum appeal, we\nhave set aside the additions and have restore the issue back to\nthe file of Assessing Officer. The additions on the basis of which\npenalty was levied have been set aside and therefore, the\npenalty levied on the basis of the same cannot be\nsustained.However, the Assessing Officer would be at liberty to\ninitiate penalty proceedings as per law while passing the\nassessment order in terms of directions issued in quantum\nappeal [ITA No.5309/Mum/2024]. In view of the aforesaid, the\nappeal preferred by the Revenue is dismissed.\n16.\nSince, we have dismissed the appeal preferred by the Revenue,\nthe grounds raised in the Cross Objections do not require\nadjudication and the same are also dismissed.\n17.\nIn result, the appeal and the cross objections are dismissed.\n Assessment Year 2008-2009(Quantum Appeal)\nITA No. 5503/MUM/2024 & C.O. No.270/Mum/2024\n18.\nWe would next take up quantum appeal preferred by the\nRevenue and the corresponding Cross Objections raised by the\n11\nAssessee for the Assessment Year 2008-2009 arising from order,\ndated 21/08/2024, passed by the CIT(A) under Section 250 of\nthe Act whereby the Ld. CIT(A) had allowed the appeal of the\nAssessee against the Assessment Order, dated 30/03/2015,\nunder Section 143(3) read with Section 147 of the Act for the\n Assessment Year 2008-2009.\n19.\nThe Revenue has raised the following grounds of appeal in ITA\n5503/Mum/2024:\n"1.\nWhether in facts and circumstances of this case the Ld.\nCIT(A) has erred in allowing the appeal of the assessee\nwithout appreciating the fact that the assessee has not\nsubmitted any corroborating evidence in support of her\ncontention which can bring out the true nature of the\ndeposits made in the Foreign Bank Account.\n2\nWhether in facts and circumstances of this case the Ld.\nCIT(A) has erred in allowing the appeal of the assessee,\nwithout noticing that the order u/s 250 passed for the AY\n2005-06 is with respect to the undisclosed deposits in\nforeign bank account and owning of undisclosed\nimmovable property outside India.\n3.\nWhether in facts and circumstances of this ease the Ld.\nCIT(A) has erred in acknowledging the fact that the 40\nhas passed a speaking order based on facts and\ndocuments furnished by the assessee, whereas the Ld\nCIT(A) is of view that the assessment done is protective in\nnature.\n4.\nWhether in facts and circumstances of this case the Ld.\nCIT(A) has erred in relying upon the judgment of Hon'ble\nSupreme Court of India in case of Lala Haridas vs ITO,\nSupreme Court, 1961

43. ITR 387 SC wherein the facts\nand circumstances have no resemblance with the instant\ncase.\n5\nWhether in frets and circumstances of this case the Ld.\nCIT(A) has erred in allowing the appeal of the assessee by\nalready presuming that the deposits pertains to the father\nof the Assessee, without providing a chance to AO by the\n12\n6\n7.\n20.\nway of calling remand report, if any additional evidences\nwere produced before the appellate authority.\nWhether in facts and circumstances of this case the Ld.\nCIT (A) has erred in deleting the addition made on\ngrounds of LTCG on a sup-moto basis, even during the\ncourse of the appellate proceedings.\nWhether on facts and in law the Ld. CIT(A) has erred in\nholding that the Assessee did not raise that issue during\nthe appellate proceedings 'inadvertently' as there is no\nevidence regarding the same.”\nThe Assessee has raised following cross-objections in CO\nNo.270/Mum/2024:\n"1.\nOn the facts and circumstances of the case and in law,\norder under Section 143(3) rws.147 is bad in law\nbecause the AO himself accepted the fact that the amount\nhas already been offered and assessed in the bands of\nassessee's father, same was added again and assessed\nagain in the hands of the assessee on protective basis;\nassessment made u/s143(3) rws.147 is bad in law and is\nliable to be quashed.\n2\nOn the facts and circumstances of the case and in law,\norder under Section 143(3) rws.147 is bad in law became\nit did not take into consideration that the said income has\nbeen charged to tax in the hands of the father of the\nassessee, assessment made u/s143(3) rws.147 is bad in\nlaw and is liable to be quashed.\n3.\nOn the facts and circumstances of the case and in law,\nfiling appeal to Hon'ble Tribunal when the tax effect in the\ngiven case is much lower than the monetary threshold as\nspecified in CBDT Circular No. 09/2024 dated 17\nSeptember 2024, is bad in law and is liable to be\nquashed.\n4.\nOn the facts and circumstances of the case and in law,\norder under Section 143(3) rws.147 is bad in law\nbecause it did not take into consideration, Article 6 of the\nDouble Taxation Avoidance Agreement (DTAA) signed\nbetween India and UK clause 1 which clearly specifies that\nthe income from immovable property may be taxed in the\n13\nContracting state in which such property is situated; the\ntaxability of the property transaction was rightfully vested\nwith the UK authorities and not with the Indian\nauthorities, assessment and addition made u/s143(3) rws.\n147 on the property situated in UK is bad in law, void ab\ninitio and liable to be quashed.”\n21.\nOn perusal of record we find that while framing assessment\nunder Section 143(3) read with Section 147 of the Act vide\nAssessment Order dated 30/03/2015, the Assessing Officer had\nmade following additions:\n(a) Addition of INR.41,11,702/- [INR.82,23,404/- x 50%]\nholding the same to be Long Term Capital Gain arising\nfrom sale of the Foreign Asset taxable in the hands of the\nAssessee.\n(b) Addition of INR.13,97,387/- holding the same to be\ninterest credited to the Foreign Bank Account chargeable to\ntax in the hands of the Assessee as interest income on\nprotective basis.\n22.\nIn appeal preferred by the Assessee against the above additions,\nthe CIT(A) deleted the additions. Therefore, the Revenue has\npreferred the present appeal before the Tribunal while the\nAssessee has filed Cross Objection.\n23.\nOn perusal of the order impugned we find that while deleting the\nadditions made on account of Long Term Capital Gain, the CIT(A)\nhad placed reliance upon the decision of First Appellate Authority\nfor the Assessment Year 1997-1998 whereby the addition on\naccount of unexplained investment in respect of funds used to\npurchase the Foreign Asset was deleted on the ground that the\nfunds pertained to the father of the Assessee. In appeal\npreferred by the Revenue for the Assessment Year 1997-1998\n14\n[ITA No.5309/Mum/2024] against the aforesaid order of the First\nAppellate Authority for the Assessment Year 1997-1998, we have\nrestored the issue back to the file of the Assessing Officer (with\ndirections). We note that while bringing to tax the Long Term\nCapital Gains arising from sale of the Foreign Asset in the hands\nof the Assessee, the Assessing Officer had also taken into\nconsideration the fact that investment for acquisition of the\nForeign Asset was considered as unexplained investment in the\nhands of the Assessee in Assessment Year 1997-1998. Further,\nwe note that the Revenue has challenged the relief granted by\nthe CIT(A) on the grounds that undisclosed deposits in the\nforeign accounts were used for the purchase of the Foreign Asset\nduring the previous year relevant to the Assessment Year 1997-\n1998.Accordingly, adjudication of issues pertaining to\n Assessment Year 1997-1998 would have a bearing on the\nadjudication of the issue of taxability of Long Term Capital Gains\nin the hands of the Assessee in the Assessment Year 2008-2009.\nTherefore, we deemed it appropriate to set aside the issue of\ntaxability of Long Term Capital Gain arising from sale of the\nForeign Asset back to the file of Assessing Officer with the\ndirections to decide the issue afresh after taking into\nconsideration the assessment order to be passed by the\nAssessing Officer for the Assessment Year 1997-1998 pursuant\nto the directions issued by the Tribunal in ITA\nNo.5309/Mum/2024 pertaining to Assessment Year 1997-1998.\nAccordingly, addition of INR.41,11,702/- made by the Assessing\nOfficer in the hands of the Assessee as taxable Long Term\nCapital Gain is set aside. We note that the Assessee has\ncontended before the CIT(A) that Long Term Capital Gains were\ntaxable in the hands of the father (i.e. JSY) since he was the\nowner of the Foreign Asset and the same had been taxed in his\nhand on protective basis. On perusal of order, dated 26/08/2015\n15\npassed under Section 271(1)(c) of the Act in the case of Jaswant\nSingh Yashpal (JSY father of the Assessee), we note that an\naddition of Capital Gains INR.82,23,404/- was made and in\nrespect of the same penalty was also levied for the Assessment\nYear 2008-2009. Accordingly, the Assessing Officer is also\ndirected to take into consideration the status of additions made\nin the hands of JSY while passing the Assessment Order as per\nthe aforesaid directions.\n24.\nAs regards the addition of interest of INR.13,97,387/- is\nconcerned, we note that the Assessing Officer had recorded as\nunder:\n"7.4 From the aforesaid statement it is found that the interest\nof GBP 17,926.12 was earned by the assessee in the joint\nbank account with father Mr. Yashpal Jaswant Singh (PAN:\nACNPY1988J) and mother Mrs. Yashpal Blodwen, (PAN:\nACNPY1987H). The amount in INR comes to\nRs.13,97,387/-. The aforesaid amount has already been\noffered and assessed in the hands of her father Mr.\nYashpal Jaswant Singh, PAN: ACNPY1988J for the\n assessment year under consideration. However, since the\nassessee is a joint account holder and equal beneficiary of\nthe bank account, to protect the interest of the revenue,\nthe income earned from this HSBC account of\nRs.13,97,387/- during A.Y. 2008-09 is added to the total\nincome of the assessee, on protective basis. (Int. from\nforeign bank Rs.13,97,387/-)\n25.\nThus, it is clear that the interest income of INR.13,97,387/- has\nbeen offered to tax by the father of the Assessee and the\nAssessing Officer has made in addition in respect of the same\nwhile passing the Assessment Order, dated 30/03/2015, for the\n Assessment Year 2008-2009. We note that vide order dated\n26/08/2015 passed under Section 271(1)(c) of the Act penalty\nhas also been levied in respect of interest income of\nINR.13,97,387/-. Once the aforesaid interest income has been\n16\noffered to tax by the father of the Assessee and the same has\nalso been taxed as such in the assessment framed, the question\nof taxing the same interest income in the hands of the Assessee\ndoes not arise. Accordingly, addition of INR.13,97,387/- in the\nhands of the Assessee cannot be sustained. To this extent the\nconclusion drawn by the CIT(A) is confirmed, although, for\ndifferent reason as stated hereinbefore.\n26.\nIn view of the above, all the grounds raised by the Revenue are\ntreated as partly allowed. Similarly, all the grounds raised by the\nAssessee by way of Cross Objections are treated as partly\nallowed.\n27.\nIn result, the appeal preferred by the Revenue and the Cross\nObjection filed by the Assessee are treated as partly allowed.\n Assessment Year 2008-2009 (Penalty Appeal)\nITA No. 5502/MUM/2024 & C.O. No.272/Mum/2024\n28.\nNow, we will take up ITA No.5502/Mum/2024 and Cross\nObjection No.272/Mum/2024 for the Assessment Year 2008-\n2009 arising from the order of the CIT(A) whereby the penalty of\nINR.40,53,510/- levied under Section 271(1)(c) of the Act was\ndeleted by the CIT(A).\n29.\nOn perusal of the order impugned, we find that the CIT(A) had\ndeleted the penalty levied under Section 271(1)(c) of the Act on\nthe ground that vide order dated 21/08/2024, additions forming\nbasis of levy of penalty were deleted in the quantum appeal\npreferred by the Assessee against the assessment order for the\n Assessment Year 2008-2009. In the appeal preferred by the\nRevenue [ITA No.5503/Mum/2024] challenging the against the\naforesaid order of the CIT(A) passed in quantum appeal, we\nhave (a) set aside the addition pertaining to Long Term Capital\n17\nGain of INR.41,11,702/- and have restore the issue back to the\nfile of Assessing Office, and (b) confirmed the deletion of\naddition of INR.13,97,387/- made in respect of interest income.\nThus, the additions on the basis of which penalty was levied\nhave been set aside/deleted and therefore, the penalty levied on\nthe basis of the same cannot be sustained. However, the\nAssessing Officer would be at liberty to initiate penalty\nproceedings as per law while passing the assessment order in\nterms of directions issued in quantum appeal. In view of the\naforesaid, the appeal preferred by the Revenue is dismissed.\n30.\nSince, we have dismissed the appeal preferred by the Revenue,\nthe raised in the Cross Objection do not require adjudication and\nthe same are also dismissed.\n31.\nIn result, the appeal preferred by the Revenue and the Cross\nObjections are dismissed.\n Assessment Year 2001-2002(Quantum Appeal)\n C.O. No.261/Mum/2024\n32.\nWe would next take up quantum appeal preferred by the\nRevenue and the corresponding Cross Objections raised by the\nAssessee for the Assessment Year 2001-2002 arising from order,\ndated 11/07/2024, passed by the CIT(A) under Section 250 of\nthe Act whereby the Ld. CIT(A) had allowed the appeal of the\nAssessee against the Assessment Order, dated 30/03/2015,\nunder Section 143(3) read with Section 147 of the Act for the\n Assessment Year 2001-2002.\n33.\nThe Revenue has raised the following grounds of appeal in ITA\n5138/Mum/2024:\n"1.\nWhether in facts and circumstances of this case the Ld.\nCIT(A) has erred in allowing the appeal of the assessee\nwithout appreciating the fact that the assessee has not\n18\nsubmitted any corroborating eusdence in support of her\ncontention which can bring out the true nature of the\ndeposits made in the Foreign Bank Account.\n2.\nWhether in facts and circumstances of this case the Ld.\nCIT(A) has erred in allowing the appeal of the assessee,\nwithout noticing that the order u/s 250 passed for the AY\n2005-06 is with respect to the interest earned on the\nforeign bank account, whereas, in the instant case the\nissue pertains to the deposit of GBP 1,38.696.83 and GBP\n1,28,799.62 (Rate of Exchange Rs.67.34), which\namounts to Rs.1.93.60,010 and 50% of the aforesaid\namount has been rightly added to the resident account\nholders amounting to Rs.96,80,005/.\n3.\nWhether in facts and circumstances of this case the Ld.\nCIT(A) has erred in acknowledging the fact that the AO\nhas passed a speaking order based on facts and\ndocuments furnished by the assessee, whereas the Ld.\nCIT(A) is of view that the assessment done is protective in\nnature.\n4.\nWhether in facts and circumstances of this case the Ld.\nCIT(A) has erred in relying upon the Judgement of Hon'ble\nSupreme Court of India in case of Lalja Haridas vs ITO,\nSupreme Court, 1961

43. ITR 187 SC wherein the facts\nand circumstances have no resemblance with the instant\ncase.\n5.\nWhether in facts and circumstances of this case the Ld.\nCIT(A) has erred in allowing the appeal of the assessee by\nalready presuming that the deposits pertains to the father\nof the Assessee, without providing a chance in AO by the\nway of calling remand report, if any additional evidences\nwere produced before the appellate authority.\"\n34.\nThe Assessee has raised following cross-objections in CO\nNo.261/Mum/2024:\n"1.\nOn the facts and circumstances of the case and in law,\norder under Section143(3) rws.147 dt.30-03-2015 is bad\nin law because it did not take into consideration that the\nHSBC account and the deposits made actually belonged to\nthe father of the assessee who was a Non-Resident; and\nas the same could not be assessed in his hands being a\nNon-Resident, same was added and assessed in the name\nof the assessee as unexplained investment, assessment\nmade under Section 143(3) rws.147 is bad in law and is\nliable to be quashed.\n2.\nOn the facts and circumstances of the case and in law,\n19\n3.\n35.\norder u/s143(3) rws.147 dt. 30-03-2015 is bad in law\nbecause it did not take into consideration that the said\nincome has been charged to tax in the hands of the father\nof the assessee who was a Non-Resident; assessment\nmade u/s143(3) rws, 147 is bad in law and is liable to be\nquashed.\nOn the facts and circumstances of the case and in law,\nadding and assessing the deposits made in foreign\naccount of a Non-Resident in the hands of the Resident\nDaughter because she is just a joint holder for operational\nconvenience as unexplained investment in foreign bank\naccount is bad in law and assessment made u/s143(3)\nrws.147 is liable to be quashed.\"\nOn perusal of record, it emerges that for the Assessment Year\n2001-2002 assessment was framed by the Assessee vide\nAssessment Order, dated 30/03/2015, passed under Section\n143(3) read with Section 147 of the Act whereby addition of\nINR.96,80,005/- was made by the Assessing Officer in the hands\nof the Assessee in respect of amounts credited to the Foreign\nBank Account holding as under:\n\"7.

4. Accordingly GBP1,43,748/22 is assessed in the hands of\nthe assessee as unexplained investment. Accordingly addition of\nRs.96,80,005/- (GBP@Rs 67.34) is made to the total income as\nunexplained investment u/s 69 of the Act. (Add:Rs.96,80,005/-)\nPenalty proceedings u/s.271(1)(c) are initiated for concealment\nand furnishing inaccurate particulars of income.\nPenalty proceedings u/s 271(1)(b) are initiated for non-\ncompliance as statement of HSBC bank account was not furnished\nin response to notice dt 10.10.2014 rd under sections 142(1) of\nthe income-tax Act 1961.\"\n36.\nThe above addition made by the Assessing Officer was\nchallenged by the Assessee in appeal before the CIT(A). The\nCIT(A) deleted the above addition made by the Assessing Officer\nby placing reliance upon the order passed by the First Appellate\nAuthority in the case of Assessee in quantum appeal preferred\nagainst Assessment Order for the Assessment Year 2005-2006.\n37.\nBeing aggrieved, the Revenue has preferred the present appeal\nbefore the Tribunal. The Assessee has filed Cross-Objection.\n38.\nOn perusal of record it emerges that Assessee had taken a stand\nbefore the authorities below that the amount reflected in the\nForeign Bank Account represented amount received on maturity\nof Fixed Deposits which were made by the father of the Assessee\nout of his earnings/savings. Before the CIT(A) it was contended\nby the Assessee that the Assessing Officer had failed to\nappreciate that sufficient explanation was provided by the\nAssessee regarding the sources of deposits/credits reflected in\nthe Foreign Bank Account. On the other hand, the stand taken\nby the Revenue is that Assessee has failed to bring on record\nsufficient material to support the aforesaid contention. The\nLearned Departmental Representative submitted that reliance\nplaced by the CIT(A) on the appellate order passed in quantum\n21\nappeal for the Assessment Year 2005-2006 pertained to interest\nincome added in the hands of the Assessee on protective basis\nand therefore, the same had no application to the facts of the\n assessment year under consideration where addition was made\non account of failure of the Assessee to provide explanation of\nsource of investments/deposits as reflected in the Foreign Bank\nAccount.\n39.\nHaving considered the stand taken by the Assessee before the\nauthorities below and submissions advanced by the Learned\nDepartmental Representative, we find some merits on the\ncontentions advanced on behalf of the Revenue. The Learned\nCIT(A) has deleted the addition of INR.96,80,005/- made in the\nhands of the Assessee by simply placing reliance upon the\ndecision of the First Appellate Authority for the Assessment Year\n2005-2006 without taking into consideration the facts of the\npresent case. On perusal of the order impugned, we find that\nafter reproducing the statement of the facts, grounds of appeal

\nand assessment order, the CIT(A) has concluded as under:\n\

6. Decision on point-wise grounds of appeal preferred by the\nappellant:\nGround No. 3\n3.\nThe learned Assessing Officer could not have added\nRs.96,80,005/- as unexplained Investment in foreign\nbank account merely on presumption and\nconjectures by ignoring the irrefutable evidence\nfurnished by the Appellant.\nDecision: Ground no. 3, being on the merit of the case, is dealt\nfirst. In the appellant's own case for A.Y. 2004-05 and A.Y. 2005-\n06, the appellate order has been decided in her favour on the\nsame issue. The relevant portion of the said appellate order for\nΑ.Υ. 2005-06 is pasted as under:\n6. Observation and decision\nAt the outset and before dealing with the\ngrounds of appeal it needs to be stated that\n22\nevidently the above submission has no\nrelevance in the context of the present case.\nThe only addition made by the AO in the\nimpugned assessment order quoted above\nwas of Rs.2,63,760/-,being interest stated to\nhave been earned by the appellant from a\nforeign bank account with HSBC, on a\nprotective basis. Also both grounds of appeal\nare directed against the said addition. The\nwritten submission is, therefore, ignored.\n6.

1. 1. XX XX\n6.

1. 2. XX XX\n6.1.3.\nLaw is also well settled on the issue\nthat in order to make a protective assessment there\nhas to be a substantive assessment first. In this case\nthere is no quarrel that the protective assessment\nwas completed by the AD after the same income was\nfirst assessed in the hands of the appellant's father.\nHowever, the income of Rs.2,63,760/-was offered\nto tax by the appellant's father in his return and the\naddition was not made by the AO consequent to a\nprocess of investigation or enquiry. Therefore, the\nexigibility of the said income to tax in the hands of\nappellant's father was never in doubt. Thus, on the\nfacts and circumstances of the present case,\nprotective addition of the same amount again in the\nhands of the appellant was contrary to the law laid\ndown by the Hon'ble Supreme Court in Lalji Haridas\nv..ITO (supra) and therefore, deserves to be\ndeleted.\n6.1.4.\nIn view of the above, the addition of Rs.\n2.63,760/ is deleted and Ground Nos.1&2 are\nallowed.\n7.\nIn the result the appeal is Allowed\"\nRespectfully following the aforesaid decision of the appellate\nauthority in the other years of the appellant's appeal, and as the\nbank account leading to the addition under dispute is the same,\nthe addition made in this years is also deserves to be deleted\"\n40.\nA perusal of the above would show that there is no discussion\n23\nregarding the explanation offered by the Assessee in relation to\nthe source of deposits/investments in the foreign bank account.\nHowever, at the same time, we note that the Assessing Officer\nhas in Paragraph 7.3 of the Assessment Order reproduced the\nstatement of the Foreign Bank Account in a tabular form and the\nsame is as under:\n\"7.

3. The statement of the aforesaid HSBC bank account during\nthe assessment year 2001-02 shows the following transactions.\nDate\nTransactions details\nDebit\nCredit\nBalance\nInterest/\nIncome\n01.07.2000 Balance carried over\n846.52\n846.52\n31.10.2000 Fiduciary\nDeposit\n1,58,696.83 159543.35\nRepayment\n31.10.2000 Trf ANZ Fv S K Yashpal 1,58,696.83\n846.52\n20.11.2000 Fiduciary\nDeposit 1,04,012\n(1,03,165.48)\nInvestment\n20.11.2000 TRF MRS B Yashpal\n25,013\n(1,28,178.62)\n20.11.2000 Fiduciary\nDeposit\n1,28,799.62 621.14\nRepayment\n31.12.2000 Account Statement Fee 60\n541.14\nThe account was jointly held\n\"\n41.\nA bare perusal of the above shows that GBP.1,58,693.83/- and\nGBP.1,28,799.62/- credited to the Foreign Bank Account on\n31/10/2000 and 20/11/2000, respectively, were `Fiduciary\nDeposit Repayment'. This clearly supports the stand taken by the\nAssessee that the aforesaid two amounts were received on the\nmaturity of deposits made in the earlier years. The Assessee has,\nin the Cross Objection, taken a stand that the source of the\ndeposits was earning/savings of her father and the amount\nreceived on maturity of such deposits could not have been\nbrought to tax in the hands of the Assessee as unexplained\ninvestment during the relevant previous year. Keeping in view of\nthe facts as emerging from the statement of the Foreign Bank\n24\nAccount reproduced in paragraph 7.3 of the Assessment Order,\nand taking into consideration the totality of the facts and\ncircumstances of the present case, we concur with the conclusion\ndrawn by the CIT(A) that additions of INR.96,80,005/- made in\nthe hands of the Assessee cannot be sustained (although for\ndifferent reasons). In terms of the aforesaid, the Cross-Objection\npreferred by the Assessee are allowed and order of CIT(A)\ndeleting the addition of INR.96,80,005/- made by the Assessing\nOfficer is confirmed. Accordingly, the grounds raised by the\nRevenue in appeal are dismissed.\n42.\nIn result, the Cross Objections filed by the Assessee are allowed\nand the appeal preferred by the Revenue is dismissed.\n Assessment Year 2001-2002(Penalty Appeal)\nITA No. 5137/MUM/2024 & C.O. No.269/Mum/2024\n43.\nNow, we will take up and Cross\nObjection No.269/Mum/2024 for the Assessment Year 2001-\n2002 arising from the order of the CIT(A) whereby the penalty of\nINR.96,80,005/- levied under Section 271(1)(c) of the Act was\ndeleted by the CIT(A).\n44.\nSince the order of CIT(A) deleting quantum additions has been\nconfirmed while adjudicating CO\nNo.261/Mum/2024 hereinabove, the penalty levied in respect of\nthe same cannot be sustained. Therefore, the appeal preferred\nby Revenue challenging the order passed by the CIT(A) deleting\nthe penalty levied under Section 271(1)(c) of the Act in relation\nto additions made vide Assessment Order dated 30/03/2015 for\nthe Assessment Year 2001-2002 is dismissed. Consequently, the\nCross Objection preferred by the Assessee do not require\nadjudication and are, therefore, dismissed.\n25\n45.\nIn result, appeal preferred by the Revenue and the Cross\nObjection preferred by the Assessee are dismissed.\n46.\nIn conclusion:\n Assessment Year 1997-1998 (Quantum Appeal)\nITA No. 5309/MUM/2024 : Allowed for statistical purpose\nC.O. No.260/Mum/2024\n: Dismissed\n Assessment Year 1997-1998 (Penalty Appeal)\nITA No. 5311/MUM/2024\nC.O. No.267/Mum/2024\n: Dismissed\n: Dismissed\n Assessment Year 2008-2009 (Quantum Appeal)\nITA No. 5503/MUM/2024\nC.O. No.270/Mum/2024\n: Partly Allowed\n: Partly Allowed\n Assessment Year 2008-2009 (Penalty Appeal)\nITA No. 5502/MUM/2024\nC.O. No.272/Mum/2024\n: Dismissed\n: Dismissed\n Assessment Year 2001-2002 (Quantum Appeal)\nITA No. 5138/MUM/2024\nC.O. No.261/Mum/2024\n: Dismissed\n: Allowed\n Assessment Year 2001-2002 (Penalty Appeal)\nITA No. 5137/MUM/2024\nC.O. No.269/Mum/2024\n: Dismissed\n: Dismissed\nOrder pronounced on 30.04.2025.\nSd/-\n(Om Prakash Kant)\nAccountant Member\nमुंबई Mumbai; दिनांक Dated : 30.04.2025\nMilan, LDC\nSd/-\n(Rahul Chaudhary)\nJudicial Member\n26\nआदेशकीप्रतिलिपिअग्रेषित/