I bought a house abroad years ago while I was a non-resident. Now that I have been resident in India, can it be taxed under the Black Money Act?
The argument that acquisition while non-resident puts the asset outside the Act did not succeed before the Delhi Bench. The Tribunal proceeded on the basis that the assessee, being resident in India from assessment year 2016-17, was required to declare the foreign asset and explain its source, and that s.72(c) deems a pre-commencement asset in respect of which no declaration was made under Chapter VI to have been acquired in the year the s.10 notice was issued. It did not decide the appeal: it restored the matter to the Commissioner (Appeals) for fresh adjudication so that the assessee could produce evidence of the source of the investment and of his residential status.
Decided by the ITAT (Ramit Kochar, Accountant Member and Vimal Kumar, Judicial Member) on 2026-04-02, reported as BMA No. 12/Del/2025. It bears on section BMA s.2(2), section BMA s.2(11), section BMA s.72(c), section BMA s.10(1), section BMA s.10(3), section 6 of the Income Tax Act 1961, in Assessment & Scrutiny, Residence & Treaty Benefit and Appeals matters.
The only order located that engages the 'acquired while non-resident' argument at all. It shows that the argument does not run on its own and that the point has to be proved on documents - evidence of non-residence in the year of acquisition and of the source of the funds - rather than asserted. Read it for what has to be filed, not for a holding.
Binding on the AO and CIT(A) within the Tribunal's jurisdiction. Persuasive elsewhere.
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The assessee bought a house at 43 Brookside Road, Edison, New Jersey on 3 September 1999 for US$ 2,53,000 and sold it on 10 May 2016 for US$ 4,05,000, receiving net proceeds of US$ 3,82,502.91 on 29 August 2016. He was non-resident from 1996 to 2008, having been employed in the United States from 1996 to 2004, returned to India in 2008, lived in India until 2021 and then returned to the United States; he was resident in India in the year in issue. The Assessing Officer received the information on 31 March 2021, concurrent jurisdiction was assigned on 31 March 2022, notice under s.10(1) issued on 11 April 2022 and the assessment order was passed on 3 July 2023 for assessment year 2021-22. Seven grounds were taken, including that the addition belonged to assessment year 2017-18 rather than 2021-22, that a property acquired while non-resident falls outside the Act, that a capital loss arose under the Income-tax Act, that there was no evidence the investment came from undisclosed income, and that natural justice had been denied; additional grounds challenged compliance with CBDT guidelines dated 23 January 2018.
The appeal was allowed for statistical purposes and the matter remanded to the Commissioner (Appeals) for adjudication afresh, so that the assessee could furnish documentary evidence of the source of the investment, of the mortgage repayments and of his residential status (paras 6.3.8 and 7). On the substantive question the Tribunal observed that despite acquisition while non-resident, the assessee having been resident from assessment year 2016-17 was required to declare the foreign asset and to explain its source, and that non-disclosure brought the Act into play.
The Tribunal set out the definition of an undisclosed asset located outside India in s.2(11), turning on the absence of an explanation about the source of investment or an explanation the officer finds unsatisfactory. It then set out the deeming fiction in clause (c) of s.72, under which an asset acquired before the Act commenced, in respect of which no declaration is made under Chapter VI, is deemed to have been acquired in the year in which a notice under s.10 is issued. It found the assessee had not conclusively proved his non-resident status by documentary evidence when the property was acquired in 1999. It admitted the additional grounds as pure questions of law on the authority of National Thermal Power Company Limited and Chitturi Subanna, and concluded that in fairness to both parties one more opportunity should be given (para 6.3.8).
one more opportunity is required to be provided to the assessee
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Handle my notice → Ask a CA on WhatsAppThe argument that acquisition while non-resident puts the asset outside the Act did not succeed before the Delhi Bench. The Tribunal proceeded on the basis that the assessee, being resident in India from assessment year 2016-17, was required to declare the foreign asset and explain its source, and that s.72(c) deems a pre-commencement asset in respect of which no declaration was made under Chapter VI to have been acquired in the year the s.10 notice was issued. It did not decide the appeal: it restored the matter to the Commissioner (Appeals) for fresh adjudication so that the assessee could produce evidence of the source of the investment and of his residential status. This was decided by the ITAT (Ramit Kochar, Accountant Member and Vimal Kumar, Judicial Member) and bears on section BMA s.2(2), section BMA s.2(11), section BMA s.72(c), section BMA s.10(1), section BMA s.10(3), section 6 of the Income Tax Act 1961. It is reported as BMA No. 12/Del/2025. The only order located that engages the 'acquired while non-resident' argument at all. It shows that the argument does not run on its own and that the point has to be proved on documents - evidence of non-residence in the year of acquisition and of the source of the funds - rather than asserted. Read it for what has to be filed, not for a holding. If it applies to you, the first step is this: Produce documentary proof of non-residence for the year of acquisition, not merely a statement of it; the case was remanded because that proof was missing for 1999.
The assessee bought a house at 43 Brookside Road, Edison, New Jersey on 3 September 1999 for US$ 2,53,000 and sold it on 10 May 2016 for US$ 4,05,000, receiving net proceeds of US$ 3,82,502.91 on 29 August 2016. He was non-resident from 1996 to 2008, having been employed in the United States from 1996 to 2004, returned to India in 2008, lived in India until 2021 and then returned to the United States; he was resident in India in the year in issue. The Assessing Officer received the information on 31 March 2021, concurrent jurisdiction was assigned on 31 March 2022, notice under s.10(1) issued on 11 April 2022 and the assessment order was passed on 3 July 2023 for assessment year 2021-22. Seven grounds were taken, including that the addition belonged to assessment year 2017-18 rather than 2021-22, that a property acquired while non-resident falls outside the Act, that a capital loss arose under the Income-tax Act, that there was no evidence the investment came from undisclosed income, and that natural justice had been denied; additional grounds challenged compliance with CBDT guidelines dated 23 January 2018. The matter was decided on 2026-04-02 by the ITAT (Ramit Kochar, Accountant Member and Vimal Kumar, Judicial Member). On those facts the ITAT held as follows. The appeal was allowed for statistical purposes and the matter remanded to the Commissioner (Appeals) for adjudication afresh, so that the assessee could furnish documentary evidence of the source of the investment, of the mortgage repayments and of his residential status (paras 6.3.8 and 7). On the substantive question the Tribunal observed that despite acquisition while non-resident, the assessee having been resident from assessment year 2016-17 was required to declare the foreign asset and to explain its source, and that non-disclosure brought the Act into play.
The Tribunal set out the definition of an undisclosed asset located outside India in s.2(11), turning on the absence of an explanation about the source of investment or an explanation the officer finds unsatisfactory. It then set out the deeming fiction in clause (c) of s.72, under which an asset acquired before the Act commenced, in respect of which no declaration is made under Chapter VI, is deemed to have been acquired in the year in which a notice under s.10 is issued. It found the assessee had not conclusively proved his non-resident status by documentary evidence when the property was acquired in 1999. It admitted the additional grounds as pure questions of law on the authority of National Thermal Power Company Limited and Chitturi Subanna, and concluded that in fairness to both parties one more opportunity should be given (para 6.3.8). In the words reproduced by the source cited on this page: "one more opportunity is required to be provided to the assessee" The decision followed or applied National Thermal Power Company Limited v. CIT (1998) 229 ITR 383 (SC) - applied on admission of additional grounds raising a pure question of law; Chitturi Subanna v. Kudapa Subbanna, AIR 1965 SC 1325 - relied on to the same effect.
It was decided by the ITAT on 2026-04-02 and is reported as BMA No. 12/Del/2025. Binding on the AO and CIT(A) within the Tribunal's jurisdiction. Persuasive elsewhere. A Tribunal decision binds the assessing officer and the Commissioner (Appeals) within that Tribunal's jurisdiction, and is persuasive before other benches. It is not binding on a High Court, and a contrary co-ordinate bench decision will be argued against you, so check whether the point has been taken the other way before you build a reply around it. On section BMA s.2(2), section BMA s.2(11), section BMA s.72(c), section BMA s.10(1), section BMA s.10(3), section 6, the practical question is whether the facts of your own notice match the facts of this case closely enough for the same rule to apply.
It cuts both ways and is cited by both sides. The appeal was allowed for statistical purposes and the matter remanded to the Commissioner (Appeals) for adjudication afresh, so that the assessee could furnish documentary evidence of the source of the investment, of the mortgage repayments and of his residential status (paras 6.3.8 and 7). On the substantive question the Tribunal observed that despite acquisition while non-resident, the assessee having been resident from assessment year 2016-17 was required to declare the foreign asset and to explain its source, and that non-disclosure brought the Act into play. It arises in Assessment & Scrutiny, Residence & Treaty Benefit and Appeals matters, on section BMA s.2(2), section BMA s.2(11), section BMA s.72(c), section BMA s.10(1), section BMA s.10(3), section 6 of the Income Tax Act 1961, and was decided by Ramit Kochar, Accountant Member and Vimal Kumar, Judicial Member. Before relying on it, read the source linked on this page and check whether it has since been distinguished, overruled or overtaken by an amendment to the Income Tax Act. In practice the steps that follow from it are these. Trace the source of the investment and of the mortgage repayments, year by year, with bank records. Take the year point separately: work out which year the proviso to s.3(1) and s.72(c) fix and compare it with the year assessed. Raise a pure question of law as an additional ground if it was not taken below; the Tribunal admitted additional grounds on the authority of National Thermal Power.
Searched for later treatment; none was found. That is not the same as a source affirming it. Decided 2 April 2026. Nothing applying, doubting or overruling it was located. It decides nothing finally: the appeal was allowed for statistical purposes and the matter sent back, so the observations on acquisition while non-resident are reasoning on the way to a remand, not a holding, and the point remains open. No source could be cited for that finding. Checking whether an authority still stands matters as much as knowing what it held: a decision may be overruled on one point and survive on another, or the provision it interprets may have been amended since. Read the source and the editor's note on this page before relying on it in a reply to an Assessing Officer or in an appeal.
This is a remand and should not be cited as deciding that an asset acquired while non-resident is chargeable. The Tribunal's observations to that effect are made in the course of explaining why the assessee had to be given another opportunity to prove his residential status and the source of the investment. The order does not quote s.2(2), which is tagged here because the case is about who is an assessee under the Act by reason of residence. The additional ground on the CBDT guidelines dated 23 January 2018 was not separately decided. No reporter citation is printed on the pages read. This library shows the verification state of every entry openly. This entry has not yet been read in full by a chartered accountant. The summary reflects the sources listed on this page. Read the source before you rely on it in a reply to an Assessing Officer or in an appeal before the Commissioner (Appeals) or the Income Tax Appellate Tribunal.
The appeal was allowed for statistical purposes and the matter remanded to the Commissioner (Appeals) for adjudication afresh, so that the assessee could furnish documentary evidence of the source of the investment, of the mortgage repayments and of his residential status (paras 6.3.8 and 7). On the substantive question the Tribunal observed that despite acquisition while non-resident, the assessee having been resident from assessment year 2016-17 was required to declare the foreign asset and to explain its source, and that non-disclosure brought the Act into play.
TaxSphere, “Atanu Banerjee v DDIT (Investigation)”, https://taxnotice.vittsphere.com/caselaw/case/atanu-banerjee-v-ddit-bma-asset-bought-while-non-resident/ (validity last checked 2026-09-16)
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