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2013 (5) TMI 499 - AT - Income TaxRectification of Mistakes - miscellaneous applications filed against tribunal order - unaccounted cash credits confirmed by ITAT as identity of creditors or their creditworthiness not proved - as per assessee Tribunal committed factual mistake in not considering the confirmation, PAN & also did not consider the oral submission that the initial burden is discharged - Tribunal also failed to appreciate the ratio laid by the cases relied upon by the AR - Held that:- None of the judgements cited by the A.R. is rendering any help to the assessee in the present case & the Tribunal had considered all the facts and have given sufficient reasoning for its decision. It is also seen that wherever, the tribunal had not followed the decision cited before it, the facts were duly discussed and those judgements were distinguished on the basis of facts. As decided in Shia Dawoodi Bohra Jamat (2010 (4) TMI 859 - Gujarat High Court) it was held that mere citing of judgement of Hon'ble Apex Court or of any other High Court is not sufficient without specifying how they were applicable to the facts of the case. Hence, the decision of the Tribunal in the impugned order for distinguishing any judgement cited before it on the basis of difference in facts, stands approved by Hon'ble Gujarat High court as per this decision and hence, there is no merit in this contention that the decision cited before the Tribunal should be followed on the basis of ratio laid down in the decision without examining and comparing the facts of the cited case and the case in hand before the tribunal. Also regarding gift tribunal has decided this issue after considering all the facts and the decision and concluded that the assessee could not show that there is any relationship of the assessee with the donor and there is any occasion for the gift because as per the theory of preponderance of probabilities, gift could not be established as genuine because no person will gift 50% of his capital to a person with whom he has no relationship, blood relation or friendship. See Abhai Devilal Rathod Vs DCIT (2010 (6) TMI 497 - ITAT, AHMEDABAD) wherein held that in respect of gift, the assessee is required to discharge this onus of submitting complete details of gift before the A.O. such as identity of the donor, creditworthiness,genuineness of transaction, Occasion, relationship of the donor and donee & evidence of natural love and affection and merely because money is claimed to have been transferred through banking channel, it cannot be inferred that genuineness of the gift has been established. Against assessee.
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