SH. JOGINDER SINGH. CHATHA,JALANDHAR vs. INCOME TAX OFFICER, JALANDHAR

ORDER Per Dr. M. L. Meena, AM:

These two appeals are filed by the assessee against the impugned order even dated 26.12.2018 passed by the Commissioner of Income Tax, (Appeals-2), Jalandhar (hereinafter referred to as “the CIT, Appeal”) in respect of the Assessment Year 2009-10, wherein the assessee has challenged the decision of the CIT appeal, confirming the addition of Rs. 11,13,83,314/- and Rs. 1,00,0 4919/– in respect of assessment year 2006 – 07 and 2007 – 08 on account of deposit in the foreign bank account ignoring the fact that the assessee was not a beneficiary of the said

2 &102/Asr/2019 Assessment Year: 2006-07 & 2007-08 account and that assessee’s name was struck off from the account on 11.06.2004 when M/s Soverign Holding Private Ltd became owner of this foreign bank account.

2. Briefly, the facts as per record are that the assessee, an individual, who has claimed agricultural income as the only source of income. During the course of assessment proceedings, the Assessing Officer (in short ‘the AO’) asked for the sources of funds available in HSBC Bank, Geneva amounting to Rs. 11,13,83,849/-. In compliance, the assessee explained that the funds available in the said bank account belongs to his nephew Sh. Rajinder Singh Chatha and not to him. However, the Ld. AO being not satisfiedwith the submission of assessee passed assessment order U/s 143(3) r.w.s. 147 of the act, at an income of Rs. 11,13,93,349/- against the returned income of Rs. 9500/-, and thus, made an addition of Rs. 11,13,83,849/- in respect of the Assessment Year 2006-07 and similarly addition of Rs.1,00,04,919/- was made in the Assessment Year 2007-08.

4.10 I have gone through the assessment order passed by the AO, remand reports received from the AO from time to time, submissions filed by the appellant including counter comments on the reports of the AO and find that an addition of Rs. 11,13,83,849 in AY 2006-07 and of Rs. 1,00,04,919 in AY 2007- 08 has been made by the AO on account of unexplained deposits in HSBC Account at Geneva. The information was received from the competent authority under Double Tax Avoidance Convention (DTAC) that appellant is maintaining bank account with HSBC Bank, Geneva. AO has stated that perusal of the bank statement revealed that appellant has deposited $ 2496835.89 equivalent to Rs.

3 &102/Asr/2019 Assessment Year: 2006-07 & 2007-08 11,13,83,849 in FY 2005-06 (@ Rs. 44.61 per US$) and $ 226509.38 equivalent to Rs. 1,00,04,919 in FY 2006-07 by taking the conversion rate of Rs. 44.17 per US$ as per RBI Reference rate.

4.11 The assessment proceedings were initiated by the AO u/s 147 of the IT Act as it was found that appellant has not filed his return of income for both these years. In response to this notice, appellant filed his return of income on 16.12.2014 for AY 2006-07 declaring total income of Rs. 9,500 along with agricultural income of Rs. 2,00,000 and for AY 2007-08 declaring total income of Rs. 11,500 along with agricultural income of Rs. 2,50,000.

4.12 The appellant has in the course of assessment proceedings submitted that he has not maintained any bank account with HSBC Bank, Geneva and is a permanent resident of Vill. Dhandowal, Tehsil Shahkot. It is also stated that he is an illiterate and purely agriculturist. It is stated that he has visited UK on tourist visa three times for stay period ranging from 1 month to 2 months, each time. The appellant has filed an affidavit stating that he does not have any connection with the above mentioned bank account. The appellant has stated that from the details given by the AO based on the information received from outside India, it is indicated that this account pertains to Rajinder Singh Chatha, his nephew, who is a resident of UK. The appellant was asked to substantiate his contentions with evidence by the AO and in response to this, it was stated that he is unable to produce his nephew or any other evidence to prove the sources of deposits in the bank account.

4.13 In the meantime, certain more documents were received by the AO from competent authority under DTAC, which revealed that appellant has maintained the bank account in HSBC Bank and transactions have been made through that account. These papers were again confronted to the appellant and in response to this, it was again reiterated by him that these transactions have been made by his nephew, Shri Rajinder Singh Chatha.

4 &102/Asr/2019 Assessment Year: 2006-07 & 2007-08 4.14 AO has after going through the material available on record held that this bank account pertains to Shri Joginder Singh Chatha, i.e. the appellant, as he (assessee) has failed to produce any evidence to substantiate his contentions and also failed to produce his nephew Shri Rajinder Singh Chatha. Further, it is stated by the AO that no such confirmation or verification from Shri Rajinder Singh Chatha could be filed to support his contentions. Accordingly, the amount of deposits of Rs.11,13,83,849 and of Rs. 1,00,04,919 made by the appellant in AY 2006-07 & 2007-08 respectively was held to be income from unexplained sources.

4.15 The appellant has in the course of present proceedings reiterated the submissions filed at the assessment stage and submitted that all the deposits made in the bank account pertain to his nephew Shri Rajinder Singh Chatha. It is submitted that from the details of bank account obtained by the AO from competent authority, it is clear that main account holder is mentioned as Shri Rajinder Singh Chatha and name of company is given as M/s Sauvignon Holdings Ltd. and on bottom of this page, name of Shri Joginder Singh Chatha is mentioned. It is submitted that therefore all the deposits made in the account pertain to Shri Rajinder Singh Chatha and not to the appellant.

4.16 The AO in the remand report has considered these issues as stated by the appellant in the course of present proceedings and submitted that claim of the assessee with regard to closure of profile w.e.f. 11.06.2004 does not necessarily mean that account of the appellant has been closed as thereafter, it is stated on the same sheet that last modified profile on 31.07.2007. It is submitted by the AO that date of creation of profile and date of creation of account are different. The date of closure of profile does not necessarily mean closure of bank account. It is also stated that modification date of 31.07.2007 clearly indicates that this account was in operation at least till that date and therefore, contention of the appellant of having closed the account on 11.06.2004 is not correct.

4.17 The AO has also stated in the same report that appellant has failed to furnish any confirmation from HSBC Bank or from his nephew Shri Rajinder

5 &102/Asr/2019 Assessment Year: 2006-07 & 2007-08 Singh Chatha to support his statement. The onus lies upon the appellant under the provisions of section 69/69A of the IT Act which has not been discharged even in the course of appellate proceedings.

4.18 The appellant has in the counter comments repeated the contentions given earlier and also stated that Shri Rajinder Singh Chatha has paid all the taxes on the amount outstanding in the impugned bank account to the Revenue Authority of UK and a certificate of CA of Shri Rajinder Singh Chatha was also enclosed.

4.19 This being new evidence was admitted in the interest of principles of natural justice and forwarded to the AO for examination. The AO in the remand report has pointed out that this certificate has been issued by the Chartered Accountant/Tax Advisor on the request of Shri Rajinder Singh Chatha and does not qualify as a legal certificate or document under any law and therefore, do not have any legal or evidentially value. It is also submitted that impugned document does not mention or contain any specific reference to any communication from the UK Tax Authorities as to whether the disclosures made by Shri R.S. Chatha have been accepted by the Tax Authorities or not.

4.20 AO has also stated that this document does not specify details of this HSBC account number, amount of deposit which has been disclosed to the tax authorities in UK. AO has also pointed out that there is no confirmation from Shri R.S.Chatha regarding the authenticity of this letter or its contents and further it is not supported with corroborative documentary evidence. Further, it is not clear whether the tax advisors of Shri R.S.Chatha are competent to issue such certificate or not.

4.21 The AO has further stated that appellant has not filed any confirmation/ documents from Shri R.S.Chatha stating that money belongs to him and besides these issues, it is stated that disclosure has been made in March, 2013 and it cannot be said to have covered the case of deposits of money in the account of appellant in AY 2006-07 & 2007-08. It is further stated that as per para 6 of the 6 &102/Asr/2019 Assessment Year: 2006-07 & 2007-08 letter, it is clear that cash and investments were transferred through Sauvingnon Holdings Ltd. to the India Trust whose settler is again Shri Joginder Singh Chatha. It essentially means that all the investments are held by the appellant.

4.22 The appellant has in response to this stated that he has filed all the documents which were received by him from his nephew. The appellant again reiterated the submissions filed earlier. It is submitted that his nephew Shri Rajinder Singh Chatha was regarded by the bank as ultimate beneficial owner on whose instruction they acted. It is also submitted that his nephew has paid all the taxes in UK relating to the deposits made in these years. The appellant has further stated that report furnished by the HMRC strengthens the version of the appellant that his name was struck off from the account in April, 2004.

4.23 Having considered the material available on record, I find that verification report of the disclosure made by Shri R.S.Chatha has been received from HMRC, London, wherein it is categorically mentioned that HSBC account No. 11276695 is a Swiss (Geneva) account and therefore the transactions given therein have not been confirmed by those (Swiss) Authorities. A reference was made in the course of appellate proceedings through the competent authority of India (JS-FT&TR) to the UK Tax Authorities for verification of the claims made by the appellant and report containing following comments was received :-

“….3. I believe that HSBC account No, 11276695 is a Swiss (Geneva) account and therefore we are unable to obtain this on your behalf. It may be that the Swiss tax authorities can assist you here. However, you will see (Appendix I (see 2 above) includes three credit advices.

7 &102/Asr/2019 Assessment Year: 2006-07 & 2007-08 4.24 These facts and contradictions emerging there-from were confronted to the appellant as it is categorically stated in this report that – “It is also confirmed that the transactions referred in this account have not been disclosed in the disclosure report”. But in response to this, the appellant has only reiterated the submissions filed earlier. The appellant has failed to furnish any further material on record to prove his claim.

4.25 Thus, I find that appellant has not been able to discharge the onus which is placed upon him under the provisions of section 69/69A of the IT Act and has failed to furnish any evidence in this regard. The appellant has not been able to produce his nephew Shri R.S.Chatha, who is stated to be the beneficial owner of the account operated in UK. The veracity of the contentions of the appellant could not be verified either at the stage of assessment or in the course of present proceedings. The evidence filed in the course of present proceedings regarding the disclosure made by the nephew of the appellant with regard to these deposits made in the bank account of the appellant have also been found to be incorrect. The appellant was duty bound to produce atleast a confirmation from his nephew along with his sources of income, copy of ITRs filed etc. to substantiate his claim with regard to sources of deposits in the bank account. The appellant has failed to discharge this burden both at the stage of assessment as well as in the course of present proceedings.

4.26 Accordingly, I hold that amount of Rs. 11,13,83,849 deposited in the bank account during AY 2006-07 and of Rs. 1,00,04,919 during AY 2007-08 has not been explained by the appellant and therefore, addition made by the AO on this account is confirmed.

4. At the time of hearing, the Ld. Counsel for the assessee submitted that the CIT appeal, has erred in law and on facts in confirming the addition of Rs.113,083,314/-and Rs. 1,00,16,000 419/– in respect of assessment year 2006 – 07 and 2007 – 08 on account of deposit in the disputed foreign

8 &102/Asr/2019 Assessment Year: 2006-07 & 2007-08 bank account of the assessee, ignoring the fact that the assessee was not a beneficiary of the said account and that assessee’s name was struck off from the said account on 11.06.2004 when M/s Soverign Holding Private Ltd became owner of this foreign bank account. He has filed a brief synopsis to support the contentions raised before us which reads as under:

Sir, translation of the French words mention in these pages are made with the help of Google translation and the result is as follows:

French as mentioned in the Translation in English document Nom Name adresses postales de la personne postal addresses of the natural physique person profile client lies a la personne related customer profile person nom du profile client name of the customer profile autres personnes liees aux profile others related to profile customers clients date de cloture du profile Closing date of profile detail du lien closed Detail of link closed bloquee en banque Blocked bank lien personne Link person envoyee au client Sent to the customer

Sir, further the Ld. Assessing Officer stated in his report dated 15.10.2015 that “…….. it is further pointed out that on the same sheet, there is another entry as described under: Evenements sur la personne (Events relating to the person) Date creation (date of creation) 07.04.2003 Derniere modification (last modified) 31.07.2007 Here, the date of creation of account is 07.04.2003. it is, therefore, clear from the above that date of creation of profile and date of creation of account are different. Therefore, date of creation of profile does not necessarily mean date of closure of account. Moreover, the date of last modification made in the said account is indicated as 31.07.2007” Sir, in this regard it is submitted that all these comments made by the Ld. Assessing Officer belongs to M/s Sauvignon Holdings Ltd. because date of creation i.e. 07.04.2004 mentioned by the Ld. Assessing Officer in his comments on the basis of bank statement is of M/s Sauvignon Holdings Ltd. Date of Sh. Joginder Singh Chatha is 25.03.2003 and closed on 11.06.2004 but there is no date of closure mentioned in profile of M/s Sauvignon Holdings Ltd., which proves that beneficial owner is M/s Sauvignon Holdings Ltd. & Sh. Rajiner Singh Chatha not assessee Sh. Joginder Singh Chatha.

4. That Sh. Rajinder Singh chatha has paid all the taxes on the amount outstanding in this impugned bank account to the revenue authority of U.K and in this regard we had already filed certificate of C.A. of Sh. Rajinder Singh Chatha. (PAGE 63 of Appeal Set, copy of certificate reproduced by Ld. AO).

5. That in order to cross verify the facts as stated in the certificate of CA of Sh. Rajinder Singh Chatha information was requested by Hon’ble CIT(A)-2, Jalandhar from FT & TR CBDT, under Double Taxation Convention between India and the concerned authority HM Revenue & Customs (HMRC) authority of U.K submitted its report vide ref. no. S002023, dated 23.05.2017, (PAGE 46-60 of Appeal Set), in which the following facts were stated:

11 &102/Asr/2019 Assessment Year: 2006-07 & 2007-08 a. That point 1 of page 48 of appeal set in which HM Revenue & Customs (HMRC) authority of U.K duly states that “………….Please find enclosed a copy of letter (treaty Stamped) which I can confirm as an authentic copy as provided by author of the letter Jarro Lynch……………” b. That the above stated point means that the contents of that letter which is on page 50-57 of the Appeal Set are authentic and true copy and the facts are certified by the HM Revenue & Customs (HMRC) authority of U.K. c. That in point 3 at page 50 of appeal set which is a letter from Stonegate Trinity LLP i.e. CA of Sh. Rajinder Singh Chatha which is an authentic copy as certified by HM Revenue & Customs (HMRC), it is clarified that “…………disclosure explained that an account had initially been opened in the name of Mr. Joginder Singh Chatha that this account had been closed and another account opened in the name of Souvgion Holdings Ltd. As trustee of the India Trust and share of this company held by HSBC Trust co. Ltd. As trustee of India Trust and prupoted settler of this trust was Mr. Joginder Singh Chatha. The disclosure went on to explain that with regard to the above mentioned account at all times Mr. Rajinder Singh Chatha was regarded by the bank as the ultimate beneficial owner on whose instruction they acted……….”. d. That in point 4 at page 51 of appeal set which is a letter from Stonegate Trinity LLP i.e. CA of Sh. Rajinder Singh Chatha which is an authentic copy as certified by HM Revenue & Customs (HMRC), it is clarified that, “……….the income and gain included in the disclosure arising from the HSBC bank account and on which Mr. Rajinder Singh Chatha paid U.K taxes related to the tax year 2003-04,2004-05 and 2005-06 for tax year later than 2005-06 and covered by the disclosure, no investment income or gain were reported as being received in the U.K from those same bank accounts.”. e. That in point 7.3.3 at page 53 of appeal set which is a letter from Stonegate Trinity LLP i.e. CA of Sh. Rajinder Singh Chatha which is an authentic copy as certified by HM Revenue & Customs (HMRC), it is clarified that, “…………..when the account was first opened with HSBC it had the name Joginder 11 (the actual date of opening being 23 March 2003) the full name of the registered account holder being Mr. Joginder Singh Chatha (the Indian resident Uncle of Mr. Rajinder Singh Chatha ). This account was 12 &102/Asr/2019 Assessment Year: 2006-07 & 2007-08 closed and a new one opened in April,2004 the new account being in the name of Sauvignon Holdings Ltd., the shareholder of which is HSBC Trust Company (BVI) Limited as Trustee of India Trust the purported settler of which was Mr. Joginder Singh Chatha. At all times. However, Mr. Rajinder Singh chtha has been regarded by the bank as ultimate beneficial owner and on whose instructions they have acted. Therefore the underlying assets treated as belonging directly to Mr. Chatha.

Sir, the impugned account was opened in the name of assessee on 25.03.2003. i.e A.Y 2003-04 and name of assessee was struck off from the account on 11.04.2004 i.e A.Y 2005-06. The year under consideration are A.Y 2006-07 & 2007-08 so, if for the argument sake it is presumed that money was deposited in these account even then it pertains to A.Y 2005-06 and not A.Y 2006-07 & 2007-08 in which year the huge addition is made without any basis.

Sir, since account was opened by the Sh. Rajinder Singh Chatha as a main beneficial owner of account and name of assessee i.e. Joginder Singh Chatha was struck off from the account in April, 2004 then by no stretch of imagination assessee can be held liable to pay tax for the deposit in the above said bank account in the A.Y 2006-07 & 2007-08. More over Sh. Rajinder Singh Chatha has paid all the taxes on the amount outstanding in this impugned bank account to the revenue authority of U.K under Specific Disclosure Facility of all the irregularities in UK and in this regard we had already filed certificate of C.A. of Sh. Rajinder Singh Chatha i.e. M/s Stonegate Trinity LLP and this certificate has been verified and confirmed by HM Revenue & Customs (HMRC) authority of U.K duly states that “………….Please find enclosed a copy of letter (treaty Stamped) which I can confirm as an authentic copy as provided by author of the letter Jarro Lynch……………” as stated on point 1 of page 48 of Appeal Set.

Sir, considering the facts and circumstances of this case it is requested that addition made by the Ld. Assessing Officer and confirmed by Worthy CIT(A)-2, Jalandhar without any concrete evidence may kindly be deleted.

5. Per contra, the learned DR stands by the order of the authorities below.

15 &102/Asr/2019 Assessment Year: 2006-07 & 2007-08 the certificate of C.A. of Sh. Rajinder Singh Chatha i.e. M/s Stonegate Trinity LLP filedin this regard as above.This certificate has been verified and confirmed by HM Revenue & Customs (HMRC) authority of U.K. thatreads as under- “………….Please find enclosed a copy of letter (treaty Stamped) which I can confirm as an authentic copy as provided by author of the letter Jarro Lynch……………” (Point 1, APB, page 48).

Order pronounced in the open court on 13.06.2022.