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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
AadoSa / O R D E R महावीर स िंह, न्याययक दस्य/ PER MAHAVIR SINGH, JM:
These appeals filed by the Revenue are arising out of the common order of Commissioner of Income Tax (Appeals)-49, Mumbai [in short CIT(A)], in Appeal No. CIT(A)-49/IT-344/2014-15, CIT(A)-49/IT-27/2015- ITAs No. 45 & 46/Mum/2017 16 vide order dated 24/10/2016. The Assessments were framed by the Dy. Commissioner of Income Tax, Circle-40, Mumbai (in short ‘ACIT’/‘ITO’/ AO’) for the A.Y. 2011-12 & 2012-13 vide orders dated 28.02.2014 & 30.03.2015 under section 143(3) of the Income Tax Act, 1961 (hereinafter ‘the Act’).
The only common issue in these two appeals of the Revenue is against the order of CIT(A) in treating the status of assessee as non- resident. For this Revenue has raised identically worded grounds and facts and circumstances are also identical. Hence, we will take the facts of both the years but will take the grounds from AY 2011-12 in and the same reads as under: - “(i) On the facts and circumstances of the case, the ld. CIT(A) erred in holding the status of the assessee as “Non-Resident” without appreciating that clause (b) of explanation to section 6(1)(c) is not applicable in assessee’s case.
(ii) On the facts and circumstances of the case, the Ld. CIT(A) erred in not considering the AO’s view that even if assessee is treated as NRI, then also there is need to analyse taxability of his income as an NRI in the light of section 5 and section 9 of the I.T. Act, 1961. (iii) On the facts and circumstances of the cases, the Ld. CIT(A) erred in deleting the addition of Rs. 5,50,52,941/- under section 68 of the Act representing remittances from abroad ITAs No. 45 & 46/Mum/2017 from the foreign banking accounts of the assessee holding that the assessee is a non- resident and foreign income is not taxable in India without investigation the source of funds transferred from foreign bank account.”
During the assessment proceedings the AR of the assessee was asked to justify that the assessee is non-resident. The assessee furnished copies of the passport along with the details of No. of days of stay in India. The same as under:
Date of FY/Previous No. of days Grand total Page No. in Arrival – year of stay of No. of the original date of days passport departure (As per immigration seal) 01.04.2010 2010-11 11 9 11.04.2010 30.06.2010 2010-11 21 4 20.07.2010 12.09.2010 2010-11 36 8 17.10.2010 10.10.2010 2010-11 34 8 12.01.2011 06.02.2011 2010-11 17 121 22.02.2011 29.03.2011 2010-11 3 12 122 4. In view of the above, the CIT(A) held that the assessee is of non- resident status and he observed in Para 5.2 and 5.3 as under: - “5.2. have gone through the order of the ITAT, Mumbai Bench 'B' Mumbai dated 18.12.2015 which is a consolidated order for A.Yrs 2006-07, ITAs No. 45 & 46/Mum/2017 2007-08 to 2009-10 and 2003-04 to 2005-06 . In para 2.9 it has been observed as under:
It is also noted that for A. Y. 200 7-08, the contention of the assessee as well as other details, contention of the Assessing Officer were considered holding that the period of stay of the assessee in India was 173 days as against 178 days determined by the Assessing Officer, meaning thereby, the period of stay was less than 182 days, therefore, in view of the terms of section 6(1)(c) ot the Act read with Explanation (b) his status was nonresident, therefore, the global income cannot be taxed in India. We, therefore, on this issue, affirm the conclusion of the Ld. Commissioner of Income Tax (Appeals).
Further considering the background of the assessee, it is clear that he is an Indian citizen who is conducting business in Ukraine, Russia and CSI countries and he is living with his family in England. During the previous year 2010-11, he has come on a visit to India on 6 occasions and therefore Explanation (b) to sec.6(1) is applicable to the case of the appellant and he could be treated as resident if he had stayed ITAs No. 45 & 46/Mum/2017 during the said previous year in India for 182 days or more.
5.3. I find that the appellant has stayed in India for 122 days during the previous year under consideration, which is less than 182 days. Accordingly, the residential status of the appellant is found to be non-resident in view of Explanation (b) to sec.6(1) r.w.s. 6(1)(c) of the Act and the A.O. is directed to treat the residential status of the appellant as non- resident for A.Y.2011-12. Ground No.1 & 2 are allowed.”
Similarly, for AY 2012-13 the CIT(A) noted the following that the assessee stayed in India for 88 days and the details for which reads as under: - Date of arrival-ate of No. of days of stay Page No. in the passport departure (as per immigration seal) 01.04.2011-23.04.2011 23 12 05.07.2011-12.07.2011 8 10. & 23 04.08.2011 to 07.08.2011 4 15 & 26 09.08.2011-11.08.2011 3 15 & 26 27.09.2011-04.10.2011 8 14 & 24 12.12.2011-19.12.2011 8 5 25.01.2012-01.02.2012 8 4 & 8 06.03.2012 (arrival) 26 4 & 8 Grand Total 88
Accordingly, the CIT(A) decided that the assessee is a non- resident and he observed in para 8.6 and 8.7 as under- ITAs No. 45 & 46/Mum/2017 “8.6 The A.O. found that the total number of days of stay in India by the appellant during the F.Y.2011-12 was 122 days and the total number of days of stay in the four preceding previous year as 506 days. Therefore, A,O. concluded that in terms of the provisions of sec.6(1)(c), the appellant was to be treated as resident in India in the previous year 2011-12 since in the preceding four years he was in India for more than 365 days and during the previous year 2011-12 he was in India for more than 60 days. The appellant has submitted that his case was covered by Explanation (b) to sec 6(1)(c) of the Act since he was visiting India during the relevant previous year to attend to his investments and business affairs of his company and has further relied on the decision of the ITAT, Mumbai order dated 18/12/2015 in his own case.
8.7. I find that the appellant has stayed in India for 88 days during the previous year under consideration, i.e., in F.Y. 2011-12, which is less than 182 days. Further, the appellant has visited India on eight occasions during the year and the facts of the case remain similar to those in A.Y. 2011-12. Accordingly, following the decision on this issue for A.Y. 2011-12 as per para 5.2 and 5,3 above, the residential status of the appellant ITAs No. 45 & 46/Mum/2017 is held to be non-resident for the A.Y. 2012-13, in view of Explanation (b) to sec.6(1) r.w.s. 6(1)(c) of the Act. Accordingly, the A.O. is directed to treat the residential status of the appellant as non-resident for A.Y.2012-13. Ground No.1 & 2 are allowed.”
In view of the above, the learned counsel for the assessee stated that this issue is covered by Tribunal’s decision in assessee’s own case for AY 2010-11 in order dated 07.09.2018, wherein the Tribunal has followed assessee’s own case decided in AYs 2003-04 to 2009-10, vide para 11 to 13 as under: - “11. At the outset, on both the issues, the ld. Counsel of the assessee placed reliance upon the decision of the ITAT in assessee’s own case as above and stated that the issues are covered in favour of the assessee. He submitted that on identical facts, this tribunal in assessee’s own case vide common order dated 18.12.2015 has decided the consolidated order for seven years from A.Ys. 2003-04 to 2009-10 and has decided the issues in favour of the assessee. He submitted that in deciding both the issues, the ld. CIT(A) has referred to same ITAT decision. Hence, the ld. Counsel of the assessee submitted that the order of the ld. CIT(A) needs to be affirmed. He further referred to another ITAT decision in the case of Dy. CIT vs. Madhusudhan Rao [2015] 57 taxmann.com 262 ITAs No. 45 & 46/Mum/2017 (Hyd. Trib) stating that this case law also supports the case of the assessee.
Per contra, the ld. Departmental Representative (‘ld. DR' for short) relied upon the orders of the A.O. However, he did not dispute the proposition that the identical issues have been decided by the ITAT in favour of the assessee. No contrary decision has also been referred by the Revenue.