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2012 (10) TMI 292 - BOMBAY HIGH COURTUndisclosed Income - gifts received from non Resident Indians (NRI) from their Non Resident External accounts - Held that:- In the present case the confirmatory letters addressed by the donors to the assessee were identically worded, typed on the same typewriter, the donors seemed were not related to the assessee, the aggregate gifts received by the family of the appellant was over Rs.35 lacs and all gifts were made allegedly out of love and affection for the appellant and/or her family members. Further, no circumstances have been indicated by the appellant before the authorities or during the hearing before us as to what was the occasion for apparent strangers to advance an amount aggregating Rs.35 lacs to the appellant's family as gifts. There is a concurrent finding of fact by the AO and the Tribunal that the amounts shown as gifts were not genuine gifts, but were mere credits taken so as to evade payment of income tax. Further, as gifts are not income being a capital receipt and not subject to income tax its disclosure or non disclosure is of no consequence for the purpose of the Act. It is only on account of search that documents were unearthed / found which showed that the gifts were not genuine, but only a method to convert the appellant's unaccounted money into regular income. Therefore, the non genuine gifts to the appellant was undisclosed income and covered by the definition provided in Section 158B(b). Consequent to the amendment in 2002 to Section 158BB documents and/or information available with the assessing officer and relatable to evidence found during the search is certainly evidence which can be used to compute the undisclosed income for the block period - In fact Parliament realizing the difficulty for the Revenue to prove its case to the hilt provided under Section 158BB(3) of the Act that the burden of proving to the satisfaction of the Assessing Officer that any income had already been disclosed is on the assessee. Further, sub section (2) of section 158BB in terms provided that section 68 relating to cash credits would apply to block assessment and in such cases also it is for the assessee to satisfactorily explain to the AO, the source of the credit found in the books of an assessee - against assessee.
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