TMI Blog2014 (8) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause they were found to be persons of small means as compared to the assessee. Relying upon Tirath Ram Gupta v. CIT [2006 (9) TMI 166 - PUNJAB AND HARYANA HIGH COURT] - a gift cannot be accepted as such to be genuine, merely because the amount has come by cheque or draft through banking channels, unless the identity of the donor, his creditworthiness, relationship with the donee and the occasion are proved - Unless the recipient has proved the genuineness thereof, the gift can very well be treated to be an accommodation entry of the assessee's own money, which is not disclosed for the purpose of taxation - the Tribunal has fallen into error while ordering the deletion - the addition of the gift amount is maintained – Decided partly in favour of Revenue. - I.T.A. No. 90 of 2007 (O&M) - - - Dated:- 26-2-2014 - MR. AJAY KUMAR MITTAL AND MRS. ANITA CHAUDHRY, JJ. Mr. T.K. Joshi, Advocate for the appellant Mr. S.K. Mukhi, Advocate for the respondent JUDGEMENT Mrs. Anita Chaudhry, J.- 1. Through the instant appeal filed under section 260A of the Income-tax Act, 1961 (for short, the Act ), the Revenue has challenged the order dated May 26, 2006, passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the donors were neither related nor they had the capacity to make such large gifts in favour of the assessee and there was no occasion to do so. The Assessing Officer, vide order dated February 26, 2004, concluded that the assessee had utilized the services of various account holders to convert her black money and ordered addition thereof in the income of the assessee. Not only this, the Assessing Officer ordered addition of an amount equivalent to 10 per cent. of the alleged gift in the income of the assessee as premium paid to the middleman for procuring bogus entries. Some other additions were also ordered but the same are not the subject matter of the instant appeal. 5. The respondent preferred an appeal before the Commissioner of Income-tax (Appeals), who affirmed the additions, referred to above, vide order dated March 3, 2005, but gave some relief to the respondent concerning some other addition. 6. Before the Tribunal, the respondent raised a number of issues but withdrew some of them. The Tribunal, vide order dated May 26, 2006, ordered deletion of the amount of ₹ 26 lakhs and 10 per cent. thereof as premium imposed by the authorities below, besides making s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was recorded nor any confirmation was received by the Assessing Officer. In the case of Smt. Shikha Agrawal it was contended that no summon was issue by the Assessing Officer. The submission made by the learned authorised representative was not controverted by the learned Departmental representative. The affidavit in respect of each of the donor was filed except in the case of Shri Vinod, Rajini Agrawal, Madan Lal and Bal Kishan Mittal. Balance-sheet for each of the donor was filed before the Assessing Officer. It is a settled law that the statement made on oath cannot be rejected until and unless the party has been crossexamined. In this case, the affidavit of the each of the donor was available on record and, therefore, the onus is on the Revenue, in our opinion, to bring the evidence on record and cross-examine the deponent before rejecting their statement as it is an admitted the fact that in two cases where the Assessing Officer has recorded the statement, the parties has accepted the factum that they had gifted the amount to the assessee. 9. The findings of the Tribunal mainly rested on the fact that the transactions were made through banking channels and the identity and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x return for the assessment year 2000-01 declaring salary income of ₹ 48,000. It was found that, firstly, Uma Aggarwal, Madan Lal Aggarwal and others had transferred an amount in the account of Rajni Aggarwal and, thereafter, she made the gift by way of demand draft in favour of the assessee. It was also noticed that donors Brijesh Kumar Aggarwal, Shikha Aggarwal, Daya Shankar Aggarwal and Rajni Aggarwal belonged to the same family, while donors Madan Lal Aggarwal and Suraj Bhan had given their addresses as H-113, Ashok Vihar, Phase-I, Delhi which was the address of above mentioned four donors. The donor, Vishal Malhotra, appeared before the Assessing Officer and admitted that he had no relations with Madhu Singla but he made the gift on the advice of his mother. It was found that his earning capacity was just ₹ 4,000 per month and he could not have made the gift of ₹ 2,50,000 to a stranger and without any occasion. The financial capacity of Smt. Krishna Gupta, the other donor and mother of donor Vishal Malhotra was doubted. None of them were found to have made gift in favour of their own family member or relatives, but had preferred to make gifts in favour of a w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee's own money, which is not disclosed for the purpose of taxation. 16. The issue regarding receipt of money by way of gift from strangers had attracted the attention of this court on many occasions and, in our opinion, this issue is no more res integra. 17. In I. T. A. No. 12 of 2000, titled as CIT v. Udham Singh and Sons decided on December 20, 2013 [2014] 365 ITR 137 (P H), this court, while dealing with a situation where a gift was received by the assessee from a non-resident Indian with whom the assessee had no relationship, while relying upon various decisions rendered on the issue, held as under (page 141) : 9. The matter of receipt of foreign gifts even earlier had engaged attention of the courts. This court in Lall Chand Kalra v. CIT [1981] 22 CTR 135 (P H) had held that NRI gift from a stranger was neither genuine nor valid. This judgment was followed in Jaspal Singh v. CIT (I. T. A. No. 256 of 2006 decided on September 15, 2006 ([2007] 290 ITR 306 (P H)) by this court as also the judgment in Sajan Dass and Sons v. CIT [2003] 264 ITR 435 (Delhi) by the hon'ble Delhi High Court. Recently, this court in I. T. A. No. 498 of 2005, dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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