Itxa/1831/2017 Of Pr. Commissioner Of Income Tax - 27 v. Usha Jitendra Dutia

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 1831 OF 2017 ALONGWITHINCOME TAX APPEAL NO. 1944 OF 2017ALONGWITHINCOME TAX APPEAL NO. 171 OF 2020 Pr. Commissioner of Income Tax – 27 ….Appellant V/s. Usha Jitendra Dutia …Respondent ---- Mr. Akhileshwar Sharma for Appellant.Mr. Pankaj Toprani i/b PRH Juris Consults for Respondent. ---- CORAM : K.R. SHRIRAM & M.M. SATHAYE, JJ. DATED : 7[th] JUNE 2023 P.C. : INCOME TAX APPEAL NO. 1831 OF 2017 ALONGWITHINCOME TAX APPEAL NO. 1944 OF 2017 1. The questions of law proposed are as under : SUBSTANTIAL QUESTION OF LAW 1. Whether on the facts and in the circumstances of the case, and inLaw the Hon’ble ITAT was justified in vacating the protectiveassessment instead of blocking the appeal till the attaining of finalityin the case of substantive assessment as no appeal lies against aprotective assessment ? 2. Whether on the facts and in the circumstances of the case and inLaw, the Hon’ble ITAT was justified in deleting the addition of theAssessing Officer, when there is failure on part of the assessee todischarge her onus of proving that the amount declared by her inA.Y. 2010-11 is not the same amount added in A.Y. 1996-97 and1997-98 by not producing the authenticated and signed copy ofHSBC Bank statements of Geneva, Switzerland ? 3. Whether on the facts and in the circumstances of the case and inLaw, the Hon’ble ITAT is correct in deciding that only the interestamounts must be taxed and not the cumulative amounts credited inthe Bank statements during the financial year ? 2.Both appeals are impugning a common order dated 3[rd] January2017 passed by the Income Tax Appellate Tribunal (ITAT) relating toAssessment Years 1996-97 and 1997-98. Respondent had a bank account inHSBC Bank, Geneva, Switzerland in which the peak balance was US$64,242 during financial year 2005-06. The assessee, in response to thesummons issued under Section 131 of the Income Tax Act, 1961 (the Act),accepted that foreign bank account and declared additional income in theAssessment Year 2010-11 amounting to Rs.31,56,247/- equivalent to US$64,242 which was the maximum balance in the bank account with HSBCPrivate Bank, Geneva and paid the tax on 20[th] December 2011 amounting toRs.12,00,480/-. It also appears that the bank account was closed in the year2009-10. The maximum balance of US$ 64,242.77 in Financial Year 2005-06 continued till the closure of the account in 2009-10. The bank statementof HSBC Private Bank was also filed alongwith the paper book and the ITAThas come to a finding that the balance in the bank account as on 31[st] March1996 was US$ 428.87 and not US$ 64,242.77. For the Assessment Yearsunder consideration entries in the bank statement showed interest of US$751.033, US$ 720.67, US$ 704.46 and US$ 688.98 credited in the saidaccount on 9[th] June 1995, 11[th] September 1995, 11[th] December 1995 and11[th] March 1996, respectively. Certainly the interest earned for that yearhas to be taxed separately apart from the maximum balance of US$ 64,242.In our view, the Tribunal is correct in coming to a finding that the amount ofUS$ 64,242.77 which has been surrendered by assessee during Assessment Year 2010-11 and has paid tax thereon cannot be taxed again for 1996-97 or1997-98. We agree with the Tribunal’s finding that what could be taxed inaddition to US$ 64,242.77 is the interest that was earned as mentionedabove. 3.Mr. Sharma submitted that CIT(A) has even made anobservation that the statements submitted are our computer generated andonly had initials but otherwise there is no authentication. To a query posedby the court Mr. Sharma, fairly agreed that this could not form a substantialquestion of law. In any event these statements have been accepted by theITAT and were not even objected to by the Revenue. Year 2010-11 and has paid tax thereon cannot be taxed again for 1996-97 or1997-98. We agree with the Tribunal’s finding that what could be taxed inaddition to US$ 64,242.77 is the interest that was earned as mentionedabove. 3.Mr. Sharma submitted that CIT(A) has even made anobservation that the statements submitted are our computer generated andonly had initials but otherwise there is no authentication. To a query posedby the court Mr. Sharma, fairly agreed that this could not form a substantialquestion of law. In any event these statements have been accepted by theITAT and were not even objected to by the Revenue. 4.Mr. Toprani submitted that for Assessment Year 2006-07 forwhich separate appeal has been filed by the department, similar issue wasraised by CIT(A) who called upon the Assessing Officer to verify theauthenticity of the bank statements and identical statements have beencertified as valid by the Assessing Officer. Mr. Toprani submitted thattherefore this is a non issue. 5.The entire issue is fact-based. The Tribunal having come to thefactual conclusion on the basis of materials on record, no question of lawarises. In the circumstances, we see no reason to interfere. 6. Both appeals dismissed. INCOME TAX APPEAL NO. 171 OF 2020 7.In this appeal the Tribunal has relied upon findings in other twoappeals mentioned above and has also observed that identical grounds wereraised for the Assessment Year 2006-07 and come to the same conclusion. 8.In view thereof, this appeal also stands dismissed. (M.M. SATHAYE, J.) (K.R. SHRIRAM, J.)