MOHAMMED KUTTY PUDUKKUDI,MALAPPURAM vs. ACIT,CENTRAL CIRCLE-2, KOZHIKODE

Being aggrieved, an appeal was filed before the CIT(A), who vide the impugned order confirmed the action of the AO by holding that the remittance into the NRE account were through money Mohammed Kutty Pudukkudi exchange and the dates of withdrawals from son’s capital account and corresponding deposit in NRE accounts does not match. Regarding addition of Rs. 19,22,500/- the CIT(A) merely confirmed the addition on the ground that PAN and address proof of Shri Alikutty Moopan was not provided.

The learned counsel for the assessee submitted that the appellant was an NRI for the last 12 years and was engaged in the business of M/s. Tarif Star Super Market and he maintained NRE account with the State Bank of India, Tirur. He submitted that from the business account of the appellant, the amounts were remitted to the NRE account and all remittance were received by SBI through UAE Exchange, Al Fardden Exchange at Abudabi and Clearing NRE cheque of Canara Bank and Federal Bank which are confirmed by the Chief Manager, SBI, Tirur Branch by their certificates. The amounts remitted to the NRE account cannot be taxed in India. As regards to the addition of Rs. 17,22,500/- he submits that the appellant discharged the onus of proving the credit and also filed confirmation and not addition can be made on mere surmise or assumption.

On the other hand, the learned CIT-DR opposed the above submissions and submits that the appellant had failed to establish the Mohammed Kutty Pudukkudi nexus between the business drawing from his concern and the credits. Therefore, the learned lower authorities have rightly made the additions. As regards the addition of Rs. 17,22,500/- he submits that mere furnishing of confirmation letters without establishing the identity of the persons from whom the money was stated to have been received does not prove the genuineness of the transaction.

We have heard the rival contentions and perused the material available on record. Grounds of appeal 1 & 2 are general in nature, does not require adjudication. Grounds of appeal 3&4 challenges the additions on account of remittance NRE accounts. It is undoubted fact that the appellant made remittance to his NRE accounts in State Bank of India. Tirur branch out of the drawings from his business concerns located in UAE. There is no dispute that the remittances are made to the NRE account. The issue of taxability of credit to NRE account was examined by the Pananji Bench of the Tribunal, to which one of us, the Accountant Member was a party, in the case of Iqbal Ismail Virani v. ITO (International Taxation), Ward-2, Panaji wherein it was held as under: -

The above ratio of the Hon'ble Supreme Court in the case of Keshav Mills Ltd. (supra) was reiterated in series of decisions like Smt. Tarulata Shyam v. CIT [1977] 108 ITR 345 (SC); CIT v. Dharamdas Hargovandas [1961] 42 ITR 427 (SC); Benares State Bank Ltd. v. CIT [1970] 75 ITR 167 (SC). This position of law also been accepted by the CBDT vide para 2 of the CBDT Circular No. 5 in Mohammed Kutty Pudukkudi [F.No.73A/2(69)-IT (A-II)], dated 20-2-1969. which extracted below :- "Migrant assessee - Money remitted to India through banks - Enquiries by Income-tax Officers regarding origin of money - Instructions regarding. It has been represented to the Board that persons of Indian origin residing abroad but intending to return to India and settle here permanently, apprehend that the money brought in or remitted from abroad by such persons might be subjected to income-tax in India. The apprehension appears to be due to lack of information regarding the correct legal position about the taxability of the remittances of money from abroad. The general position, in this regard, is clarified below : (2) Money brought into India by non-residents for investments or other purposes is not liable to Indian income-tax. Therefore, there is no question of a remittance into the country being subjected to income-tax in India. The question of assessment to tax arises only when there is no evidence to show that the amount, in question, in fact, represents such remittance. In other words, in the absence of proper supporting evidence, the taxpayers' story that the money has been brought into India from outside may be disbelieved by the Income-tax Officer who may then proceed to hold that the money had in fact been earned in India. (3) If the money has been brought into India through banking channels or in the form of assets like plant and machinery or stock-in-trade, for which the necessary import permits had been obtained, no questions at all are asked by the Income-tax Officers as to the origin of the money or assets brought in. It is only in cases where the money is claimed to have been brought from outside otherwise than through banking channels and there is no evidence regarding the transfer of money, that the department has to make enquiries about the source thereof. Even in these cases, having regard to the difficulties experienced by persons migrating from Pakistan, Mohammed Kutty Pudukkudi Burma and East African countries, instructions have been issued to the Income-tax Officers that such claims should be freely admitted up to the limit of Rs. 50,000 in each case provided the following conditions are satisfied:— (a) The assessee migrated to India on or after the dates mentioned below from the countries shown against each and had no source of income in India : (i) 30-7-1962 Mozambique (vide Min. of Finance Press Note dated 22-5-1967). (ii) 1-11-1963 (Sic.) Zanzibar, Kenya, Tanzania and Uganda (vide Min. of Finance Press Note dated 22-5-1967). (iii) 1-1-1964 East Pakistan and Burma (vide Min. of Finance Press Note dated 25-6- 1964/22-5-1965). (iv) 1-10-1965 West Pakistan (vide Min. of Finance Press Note dated 3-2-1969). (b) He had sufficient resources in the foreign country. (c) He had no source of income either in India or in any foreign country, other than the country from which he migrated, prior to migration, and he was not assessed as 'Resident' in India, either for the assessment year preceding the year in which he migrated or for earlier years; and (d) The amount brought in has been duly introduced in the books regularly maintained in India and an intimation of such introduction is given to the Income-tax Officer within two months of the migrant's arrival.

Cases not covered by the preceding paragraph, namely, (a) where the money (in the case of Mozambique, Zanzibar, Kenya, Tanzania, Uganda, East Pakistan and Burma) and money and/or the personal jewellery (in the case of West Pakistan) claimed to have been brought exceeds Rs. 50,000; or (b) where the assessee had some sources of income either in India or in any foreign country, other than the one from which he had migrated, prior to migration; or (c) where the assessee was assessed as Resident in India either for the assessment year preceding the year of his/her migration or in the earlier years, will not be entitled to any special concession. Thus, any claim by such migrants that the funds or the jewellery have been brought from the abovementioned countries, will be accepted only if the persons concerned produce adequate evidence to show that they had sufficient funds/wealth in those countries and that the transfer of the cash/jewellery to India, can directly be linked with the said funds or wealth. In other words, these migrants will have to lead proper evidence like any other assessees, about the source of the cash/jewellery alleged to have been brought by them from these countries. In support of the claim that they had sufficient funds in those countries, they might produce before the income-tax authorities in India, their bank accounts in those countries as also copies of the assessment orders passed in their cases by the income-tax authorities of those countries. The migrants would also then be required to prove that the amounts brought into India can directly be linked with the funds which they had possessed in those countries."

The position that emerges from the CBDT Circular as well as the Hon'ble Supreme Court's decision in the case of Keshav Mills Ltd. (supra) is that the money brought in India by Non- Mohammed Kutty Pudukkudi Resident for investment or for other purpose is not liable to tax under the provisions of the Income-tax Act. The question of assessment to income tax arises only when there is no evidence to show that amount is question in fact represents remittance from abroad. Admittedly, in the present case, there is ample evidence on record demonstrating that the amounts in question represents remittance from abroad by the appellant himself. The rational behind this legal proposition is that the word "receipt" implies two persons viz. the person who receives and the person from whom he receives; a person cannot receive a thing from himself.

Admittedly, the appellant herein is Non-Resident for the last 30 years for income tax purpose and citizen of USA. The scope of tax liability of Non-Resident is required to be considered in the light of sections 4 and 5 of the Income-tax Act. The relevant provisions of the Act are extracted as under:— "4. Charge of income-tax.—(1) Where any Central Act enacts that income-tax shall be charged for any assessment year at any rate or rates, income-tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions (including provisions for the levy of additional income-tax) of, this Act in respect of the total income of the previous year of every person: Provided that where by virtue of any provision of this Act income-tax is to be charged in respect of the income of a period other than the previous year, income-tax shall be charged accordingly. (2) In respect of income chargeable under sub-section (1), income-tax shall be deducted at the source or paid in advance, where it is so deductible or payable under any provision of this Act. ** ** **

Admittedly, the appellant herein is Non-Resident Indian for income tax purpose for last 30 years. As noted by us (supra), an Indian resident is liable to tax in respect of income received or deemed to be received in India and income which accrues or arises or deemed to be accrued or arisen in India. In the preceding paragraphs, we held that the impugned addition does not represent either income received or deemed to be received in India or income accrued or arisen or deemed to be accrued or arisen in India. The remittance brought to India which are subject matter of impugned additions are obviously income received at first instance outside taxable territories of India or accrued or arisen outside taxable territories of India. Therefore, it is beyond the scope of jurisdiction of the Assessing Officer to go into the source of income earned outside taxable territories of India, once the Assessing Officer is satisfied that the source of money for acquisition of property represent remittance from the abroad from the appellant himself. Therefore, rejection Mohammed Kutty Pudukkudi and acceptance of explanation given as to the source of credits in the bank account of Bank of Baroda, Dubai is totally immaterial and had no relevance at all, as the Assessing Officer was not concerned about the taxability or otherwise of income received or accrued and arisen outside the taxable territories of India to Non-Resident. Therefore, the fact that the lower authorities had rejected the explanation as to the sources of credits in the Bank of Baroda, Dubai account does not come in the way of deleting the impugned additions. This is more so, in view of the fact that there is no material on record to show that the appellant had diverted the income which escaped the assessment to tax in India to deposit the money in the Bank of Baroda, Dubai account, in fact, it is not even the case of the Assessing Officer that the appellant had indulged in round tripping of money and there is no allegation as such against the appellant.”

In the light of the above legal position the credits to NRE account cannot be taxed in India. Accordingly, grounds of appeal No. 3 & 4 stand allowed.

Grounds of appeal No. 5 & 6 challenges the addition of Rs. 17,22,500/-. The AO made the addition of Rs. 17,22,500/- based on the notings contained the document seized vide CHN/IT/023/15- 16/RR/A3- page 30-32 reflecting purchase of property for Rs. 17,25,000 and advance given Rs. 17,22,500/-made with Shri Alikutty Moopan. The explanation of the appellant that the appellant had received refund of the money advanced on entering into agreement of sale for purchase of property with one Shri Alikutty Moopan was not accepted by the appellant. In our considered opinion, the agreement of sale contained the full details of the said Mohammed Kutty Pudukkudi Alikutty Moopan and confirmation from the said person was also furnished by the appellant. The explanation cannot be rejected without giving cogent reasons. Having regard to the explanation offered by the appellant, there is no warrant to make the addition by rejecting the explanation without giving any valid reason.

In the result, the appeal filed by the assessee stands allowed.