DCIT, NEW DELHI vs. MR. SUDHIR SAREEN, NEW DELHI

Date of Hearing : 05-07-2016 Date of Order : 08-07-2016 ORDER PER H.S. SIDHU : JM The Revenue has filed the present appeal against the impugned order dated 29/10/2012 passed by the Ld. Commissioner of Income Tax (Appeals)-I, New Delhi pertaining to assessment year 2009-10 on the following grounds:-

1. The order of the Ld. CIT(A) is not correct in law and facts.

2. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in holding the residential status of the assessee as ‘non-resident’ against the residential status determined by the AO as resident.

3. On the facts and circumstances of the case, the Ld. CIT(A) has erred in deleting the addition of Rs. 72,58,000/- made by the AO on account of “amount transferred from abroad”.

4. The appellant craves leave to add, amend any / all of the grounds of appeal before or during the course of the hearing of the appeal.

2. The brief facts of the case are that the return of income was filed on 5.2.2010 declaring an income of Rs. 3,73,770/- from house property, other sources and capital gains. In the return, the assessee claimed the status of non-resident. The assessment was completed u/s. 143(3) of the Income Tax Act, 1961 (hereinafter referred the Act) vide order dated 23.12.2011 at an income of Rs. 76,31,470/-, adding amounts transferred by the assessee from abroad to his declared income, and determining the status of the assessee to be resident. Against the aforesaid, assessee filed the Appeal before the Ld. CIT(A) who vide his impugned order dated 29.10.2012 has allowed the appeal for statistical purpose.

4. At the time of hearing, Ld. Authorised Representative of the assessee, Shri UN Marwah, CA has stated that the similar issues in dispute have already been adjudicated and decided by the ITAT ‘G’ Bench, New Delhi in assessee’s own case in (AY 2010-11) vide order dated 27.8.2015. Therefore, he requested that the issues involved in the present Appeals are squarely covered by the ITAT decision dated 27.8.2015, hence, the present Appeal filed by the Revenue may be dismissed by upholding the order of the Ld. CIT(A).

5. On the contrary, Ld. DR relied upon the order of the Assessing Officer and reiterated the contention raised in the grounds of appeal, raised by the Department.

“4.5 I have carefully considered the submissions of the appellant and the assessment order. It is pointed out that the facts in the case of Sh.Suresh Nanda and that of the appellant are not the same and; therefore, res judicata will not apply to these two cases. No doubt rule of consistency, as brought out by the Hon'ble Supreme Court in the Radhaswamy Satsang case ( 193 ITR 321), is a cardinal legal principle and needs' to be followed to avoid multiplicity of litigation and to end litigation. It must also be remembered, as held by the Hon'ble Supreme Court in Bharat Sanchar Nigam Ltd. v. Union of India (2006) 282 ITR 275, that "Res judicata does not apply in matters pertaining to tax for different assessment years because res judicata applies to debar court's from entertaining issues on the same cause of action whereas the cause of action for each assessment year is distinct. The courts will generally adopt an earlier pronouncement of the law or a conclusion of fact unless there is a new ground urged or a material change in the factual position." Therefore, following the rule of consistency and judicial discipline and in accordance with the orders of my Ld. predecessor in the appeals in assesses own case for A.Ys 2002-03 to 2008-09, I hold the status of the appellant to be 'non-resident'. Needless to say that if the decision in those years is reversed and the appellant treated as 'resident', this order would stand modified accordingly. This ground of the appellant is allowed.

5.1 The second ground of appeal (numbered 2.1 and 2.2 in the grounds of appeal) is against the determining the taxable income at Rs. 76,31,470/- against the returned income of Rs.3,73,470/- by making addition on account of remittances from abroad aggregating Rs. 72,58,000/- on the alleged ground that the same- constituted income of the appellant taxable in India.

5.2 It was submitted on behalf of the appellant that:

"That in law and on facts the appellant being "Non-resident", the amount transferred from abroad of Rs. 72,58,500/- cannot be taxed as income during the year. That on merits the appellant vide letter dated is December, 2011 had explained that he has sold his investments in shares/mutual funds in India, purchased out of remittances abroad in earlier years and was duly onsidered by the AO while framing assessment in earlier years. Therefore, the appellant remitted funds out of funds transferred from HSBC a/c maintained at New Delhi remitted back to India $1,50,000/-. Moreover, the appellant has no income earned abroad during the year which is taxable in India."

5.3 I have gone through the submission filed by the appellant as well as the assessment order. As in the assessment status of the appellant was held as 'resident', the amount transferred by the appellant from his overseas account to India has been brought to tax. Following precedence, I have held the status to be 'non- resident'. Consequently, this amount would not be taxable. However, if the decision in the appellant's case for A.Ys 2002-03 to 2008-09 is reversed and the appellant treated as his order would stand modified accordingly. This ground of the appellant is allowed.”

6.1 We also find that the Tribunal in assessee’s own case in (AY 2010-11) vide order dated 27.8.2015 has adjudicated the similar issues and decided the same in favour of the assessee. The relevant paras 3 to 7 are reproduced hereunder for the sake of convenience.

“3. During the course of hearing the ld. Counsel for the assessee at the very outset stated that this case is covered in assessee’s favour vide order dated 15.9.2014 in ITA Nos.

3120-26/Del/2011 And CO Nos. 207- 210/Del/2013 for the assessment year 2002- 03 to 2008-09 in assessee’s own case wherein the departmental appeals on the same issue were dismissed and when the department preferred appeal before the Hon’ble Jurisdictional High Court in and 289/ 2015 the order of the Tribunal dated 15.9.2014 was affirmed by following the earlier judgment in the case of CIT vs. Suresh Nanda reported in 340 ITR 611 (Delhi).

The aforesaid contention of the Ld. Counsel for the assessee was not controverted by the ld. DR.

“33. The status on facts of the present case determined by the CIT(A) as NRI has been upheld as departmental appeals have been dismissed as admittedly nothing has been found in the search. The status change accordingly on facts was not correctly made by the AO. The said action has not been upheld the issue framed in Serial

Number (4) accordingly is decided in assessee’s favour.

5. The said order was upheld by the Hon’ble Jurisdictional High Court while deciding the appeals of the department in & 289/Del/2015 vide order dated 6th July, 2015 (copy of which is placed on the record) and the relevant findings are given in para 4 to 7 which read as under :-

“4. There were two questions that arose before the Assessing Officer. One was regarding the addition on account of ‘NRE Income’ and the second was regarding addition made on account of ‘unexplained credit’. Both were answered against the Revenue by the CIT(Appeals) and the ITAT for the relevant AYs.

However, the only ground urged by the Revenue as far as these appeals are concerned is the addition on account of ‘NRE Income’.

6. Learned Counsel on both sides agree that the case is squarely covered against the Revenue by the judgment of this Court in Commissioner of Income Tax vs. Suresh Nanda 352 ITR 611 (Del.)

7. Consequently, these appeals are dismissed in terms of the aforementioned decision.”

6. We, therefore, by respectfully following the aforesaid referred to orders, do not see any merit in this appeal of the department. 9

7. In the background of the aforesaid discussions and respectfully following the precedent of the ITAT, we are of the view that the Ld. CIT(A) has passed a well reasoned order which does not need any interference on our part, hence, we uphold the same.