IN INCOME TAX APPELLATE TRIBUNAL BENCH BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER ITA Nos. 3436 to 3440/Bang/2018 Assessment Years 2007-08 to 2011-12 Shri Thimmiah Mandepandra Kalappa, Assistant No. 1 H, Belvendre Commissioner of Income Court No. 6, Spencer Vs. Tax, Road, Frazer Town, Circle 1 (2) (1), Bangalore 560 005. Bangalore. PAN AAVPT9563C APPELLANT RESPONDENT Assessee by Shri S. Parthasarathi, Advocate Revenue by Shri K.R. Narayanan, JCIT (DR) Date of hearing 22.08.2019 Date of Pronouncement 28.08.2019 ORDER Per Bench These five appeals are filed by assessee which are directed against five separate orders of ld. CIT(A)-1, Bangalore all dated 26.10.2018 for Assessment Years 2007- 08 to 2011-12. All these appeals were heard together and are being disposed of by way of this common order for sake of convenience. 2. grounds raised by assessee for Assessment Year 2007-08 in ITA No. 3436/Bang/2018 are as under. 1. On facts and in circumstances of case, reopening of assessment u/s 147 of Act by issuing notice u/s 148 was opposed to law and accordingly assessment as made is liable to be cancelled. 2. conditions precedent being absent, reopening of assessment u/s 147 is bad in law. 3. There being no omission much less omission of declaration of income in relevant assessment year in return of income by appellant, reopening of assessment u/s 147 was without jurisdiction and consequently reassessment is liable to be annulled. 4. learned CIT(A) ought to have accepted explanation of Appellant and refrained from including interest and dividend income earned outside India and he ought to have appreciated that said income was exempted from taxation under Act on account of DTAA ITA Nos. 3436 to 3440/Bang/2018 Page 2 of 7 between India and UK. 5. learned CIT (A) ought to have appreciated that amount received is only on account of compensation for which Appellant had furnished sufficient evidence to support same. Without appreciating same CIT(A) have made addition which is not sustainable. 6. learned CIT(A) erred in not considering explanation given and evidence produced to support claim of appellant ignoring facts and evidence, alleging that original letters have not been produced and accordingly order of CIT (A) is opposed to law and to principles of natural justice and accordingly impugned addition are liable to be deleted. 7. Without prejudice, additions as made are excessive, arbitrary and unreasonable and liable to be deleted in toto. 8. learned CIT (A) erred in upholding levy of interest u/s.234A, 234B and 234C of Act. 9. Without prejudice, quantum of interest levied u/s 234A, 234B, 234C are excessive and ought to be reduced subsequently. 10. For these and other grounds that may be urged at time of hearing of appeal appellant prays that appeal may be allowed 3. grounds raised by assessee for Assessment Year 2008-09 in ITA No. 3437/Bang/2018 are as under. 1. On facts and in circumstances of case, reopening of assessment u/s 147 of Act by issuing notice u/s 148 was opposed to law and accordingly assessment as made is liable to be cancelled. 2. conditions precedent being absent, reopening of assessment u/s 147 is bad in law. 3. There being no omission much less omission of declaration of income in relevant assessment year in return of income by appellant, reopening of assessment u/s 147 was without jurisdiction and consequently reassessment is liable to be annulled. 4. learned CIT(A) ought to have accepted explanation of Appellant and refrained from including interest and dividend income earned outside India and he ought to have appreciated that said income was exempted from taxation under Act on account of DTAA between India and UK. 5. learned CIT (A) ought to have appreciated that amount received is only on account of compensation for which Appellant had furnished sufficient evidence to support same. Without appreciating same CIT(A) have made addition which is not sustainable. 6. learned CIT(A) erred in not considering explanation given and evidence produced to support claim of appellant ignoring facts and evidence, alleging that original letters have not been produced and accordingly order of CIT (A) is opposed to law and to principles of natural justice and accordingly impugned addition are liable to be deleted. 7. Without prejudice, additions as made are excessive, arbitrary and ITA Nos. 3436 to 3440/Bang/2018 Page 3 of 7 unreasonable and liable to be deleted in toto. 8. learned CIT (A) erred in upholding levy of interest u/s.234A, 234B and 234C of Act. 9. Without prejudice, quantum of interest levied u/s 234A, 234B, 234C are excessive and ought to be reduced subsequently. 10. For these and other grounds that may be urged at time of hearing of appeal appellant prays that appeal may be allowed 4. grounds raised by assessee for Assessment Year 2009-10 in ITA No. 3438/Bang/2018 are as under. 1. On facts and in circumstances of case, reopening of assessment u/s 147 of Act by issuing notice u/s 148 was opposed to law and accordingly assessment as made is liable to be cancelled. 2. conditions precedent being absent, reopening of assessment u/s 147 is bad in law. 3. There being no omission much less omission of declaration of income in relevant assessment year in return of income by appellant, reopening of assessment u/s 147 was without jurisdiction and consequently reassessment is liable to be annulled. 4. learned CIT(A) ought to have accepted explanation of Appellant and refrained from including interest and dividend income earned outside India and he ought to have appreciated that said income was exempted from taxation under Act on account of DTAA between India and UK. 5. learned CIT (A) ought to have appreciated that amount received is only on account of compensation for which Appellant had furnished sufficient evidence to support same. Without appreciating same CIT(A) have made addition which is not sustainable. 6. learned CIT(A) erred in not considering explanation given and evidence produced to support claim of appellant ignoring facts and evidence, alleging that original letters have not been produced and accordingly order of CIT (A) is opposed to law and to principles of natural justice and accordingly impugned addition are liable to be deleted. 7. Without prejudice, additions as made are excessive, arbitrary and unreasonable and liable to be deleted in toto. 8. learned CIT (A) erred in upholding levy of interest u/s.234A, 234B and 234C of Act. 9. Without prejudice, quantum of interest levied u/s 234A, 234B, 234C are excessive and ought to be reduced subsequently. 10. For these and other grounds that may be urged at time of hearing of appeal appellant prays that appeal may be ITA Nos. 3436 to 3440/Bang/2018 Page 4 of 7 allowed 5. grounds raised by assessee for Assessment Year 2010-11 in ITA No. 3439/Bang/2018 are as under. 1. On facts and in circumstances of case, reopening of assessment u/s 147 of Act by issuing notice u/s 148 was opposed to law and accordingly assessment as made is liable to be cancelled. 2. conditions precedent being absent, reopening of assessment u/s 147 is bad in law. 3. There being no omission much less omission of declaration of income in relevant assessment year in return of income by appellant, reopening of assessment u/s 147 was without jurisdiction and consequently reassessment is liable to be annulled. 4. learned CIT(A) ought to have accepted explanation of Appellant and refrained from including interest and dividend income earned outside India and he ought to have appreciated that said income was exempted from taxation under Act on account of DTAA between India and UK. 5. learned CIT (A) ought to have appreciated that amount received is only on account of compensation for which Appellant had furnished sufficient evidence to support same. Without appreciating same CIT(A) have made addition which is not sustainable. 6. learned CIT(A) erred in not considering explanation given and evidence produced to support claim of appellant ignoring facts and evidence, alleging that original letters have not been produced and accordingly order of CIT (A) is opposed to law and to principles of natural justice and accordingly impugned addition are liable to be deleted. 7. Without prejudice, additions as made are excessive, arbitrary and unreasonable and liable to be deleted in toto. 8. learned CIT (A) erred in upholding levy of interest u/s.234A, 234B and 234C of Act. 9. Without prejudice, quantum of interest levied u/s 234A, 234B, 234C are excessive and ought to be reduced subsequently. 10. For these and other grounds that may be urged at time of hearing of appeal appellant prays that appeal may be allowed 6. grounds raised by assessee for Assessment Year 2011-12 in ITA No. 3440/Bang/2018 are as under. ITA Nos. 3436 to 3440/Bang/2018 Page 5 of 7 1. On facts and in circumstances of case, reopening of assessment u/s 147 of Act by issuing notice u/s 148 was opposed to law and accordingly assessment as made is liable to be cancelled. 2. conditions precedent being absent, reopening of assessment u/s 147 is bad in law. 3. There being no omission much less omission of declaration of income in relevant assessment year in return of income by appellant, reopening of assessment u/s 147 was without jurisdiction and consequently reassessment is liable to be annulled. 4. learned CIT(A) ought to have accepted explanation of Appellant and refrained from including interest and dividend income earned outside India and he ought to have appreciated that said income was exempted from taxation under Act on account of DTAA between India and UK. 5. learned CIT (A) ought to have appreciated that amount received is only on account of compensation for which Appellant had furnished sufficient evidence to support same. Without appreciating same CIT(A) have made addition which is not sustainable. 6. learned CIT(A) erred in not considering explanation given and evidence produced to support claim of appellant ignoring facts and evidence, alleging that original letters have not been produced and accordingly order of CIT (A) is opposed to law and to principles of natural justice and accordingly impugned addition are liable to be deleted. 7. Without prejudice, additions as made are excessive, arbitrary and unreasonable and liable to be deleted in toto. 8. learned CIT (A) erred in upholding levy of interest u/s.234A, 234B and 234C of Act. 9. Without prejudice, quantum of interest levied u/s 234A, 234B, 234C are excessive and ought to be reduced subsequently. 10. For these and other grounds that may be urged at time of hearing of appeal appellant prays that appeal may be allowed 7. At very outset, it was submitted by ld. AR of assessee that as per para no. 4.2.3 of his order in all these five years, ld. CIT(A) has decided issue against assessee on this basis that in spite of specific request made by AO and also again by him in appellate proceedings, necessary details have not been provided by assessee and therefore, it cannot be held that ITA Nos. 3436 to 3440/Bang/2018 Page 6 of 7 receipt in question is retirement benefit and as such exempt under UK Tax Law. He submitted that now those details in original are available with assessee and same can be furnished before authorities below and hence, in interest of justice, matter may be restored back to file of AO/ld. CIT(A) for fresh decision and if this is done, assessee will furnish all necessary details and evidences. ld. DR of revenue supported orders of authorities below. 8. We have considered rival submissions. We find that only issue in dispute on merit is regarding taxability of various amounts received by assessee in these years received from Texmatch is liable to tax in India or not. In this regard, decision of ld. CIT(A) is contained in para no. 4.2.3 of its order which is reproduced hereinbelow for ready reference. 4.2.3 case was adjourned to 30.8.2018 and at request of AR matter was adjourned to 27.09.2018 to give additional time. However, AR sought further time to appear and again adjourned to 23.10.2018 on which date AR of appellant appeared and expressed her inability to produce information called for. it is also pertaining to mention that appellant fail to furnish true nature and source of income with proper documentary evidence before AO and also before Hon'ble Settlement Commission (ITSC) which is evident from their orders passed by ITSC. In absence of above information, nature of payment received by appellant stand out to be unexplained. Thus, amount received in HSBC bank is not proved to satisfaction. 4.2.3 Considering fact that nature, genuineness, source, identity of party remitted funds, purpose of such remittance and other connected details have not been established by appellant in spite of specific request made by AO and also again by me in this appellate proceedings, it cannot be assumed that said income is retirement benefit and as such exempt under UK Tax Law. Further, considering fact that appellant was resident in India during relevant period, said amount can be reasonably assumed to be income earned by appellant from undisclosed sources and accordingly taxed in India. Without establishing true nature of receipt along with genuineness of said transaction taxability of same under UK Tax Law is not possible. Even otherwise, appellant failed to establish relevant head under which said income was considered for taxing ne said receipt under UK Tax Law. Only after this, applicability of DTAA can be validly considered. Considering above, I am of view that provisions of DTAA are not applicable at all, to given set off facts under circumstances discussed supra. ITA Nos. 3436 to 3440/Bang/2018 Page 7 of 7 9. From above para reproduced from order of ld. CIT(A), it is seen that ld. CIT(A) decision is on this basis that necessary details were not produced by assessee before him. As per ld. AR of assessee, it was submitted before us that these details along with evidences are now available with assessee and same can be now produced before AO/ld. CIT(A) if matter is restored back to anyone of these two authorities. Under these facts and in interest of justice, we feel it proper to set aside order of ld. CIT(A) in all five years and restore matter back to its file for fresh decision after providing adequate opportunity of being heard to both sides. We order accordingly. We make it clear that assessee should produce all relevant details and evidences before ld. CIT(A) and co-operate with him in proceedings. In view of this decision, no adjudication on merit is called for at present stage and hence, we make no comment on merit of case. 10. In result, all five appeals filed by assessee are allowed for statistical purposes. Order pronounced in open court on date mentioned on caption page. Sd/- Sd/- (BEENA PILLAI) (ARUN KUMAR GARODIA) Judicial Member Accountant Member Bangalore, Dated, 28th August, 2019. MS Copy to 1. Appellant 4. CIT(A) 2. Respondent 5. DR, ITAT, Bangalore 3. CIT 6. Guard file By order Assistant Registrar, Income Tax Appellate Tribunal, Bangalore. Thimmiah Mandepandra Kalappa v. Assistant Commissioner of Income-tax, Circle 1 (2) (1), Bangalore