TMI Blog2015 (6) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... ift deed. The gift is given by way of a cheque. The revenue does not dispute any of these facts. - Decided in favour of the assessees. - TAX APPEAL NO. 600 of 2005 TO TAX APPEAL NO. 602 of 2005 - - - Dated:- 19-11-2014 - MR. KS JHAVERI AND K.J.THAKER, JJ. FOR THE APPELLANT : MR JP SHAH, ADVOCATE FOR THE RESPONDENT : MR KM PARIKH, ADVOCATE JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1. Being aggrieved and dissatisfied with the impugned judgment and order passed by the Income Tax Appellate Tribunal, Ahmedabad Bench (hereinafter referred to as the Tribunal ) dated 26.08.2004 in ITA Nos. 3609/Ahd/2002, 3610/Ahd/2002 3611/Ahd/2002 for the Assessment Years 1996-97, the assessees have preferred the present T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NRE Account. He submitted that the Tribunal failed to appreciate that there was a receipt of cheque from NRE account backed by Gift Deed executed by the donor and therefore there ought to have been no room for suspicion that these are the unaccountd money of the assessees. 3.1 Mr. Shah has relied upon a decision of this Court in the case of Murlidhar Lahorimal vs. Commissioner of Income Tax reported in 280 ITR 512 where a similar question came up before this Court. He has also relied upon decisions rendered by this Court in the cases of Commissioner of Income-tax II vs. Harishbhai Raojibhai Patel HUF reported in 39 taxmann.com 13 (Gujarat) and Commissioner of Income-tax-VI vs. Heena Sharma reported in 33 taxmann.com 176 (Gujarat). 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the assessee, the primary onus is on the assessee, namely, to offer an explanation as to nature and source of the credit. What would be the degree of the onus and what should be the extent of explanation in such circumstances, is succinctly laid down by this Court in the decision in case of CIT v. Pragati Cooperative Bank Ltd., Suffice it to state that an assessee can be asked to prove the source of credit in books, but cannot be asked to prove the source of the source. 12. Unfortunately, as noted hereinbefore, the Tribunal has proceeded on an entirely fallacious premise, when it is observed, we have to decide the question about the genuineness of the gift on the balance of probabilities and, in our view, it is not probable that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... funds in the hands of the donor, it was upto the revenue to take appropriate action. The Tribunal fails to consider all these aspects. In fact, the donor having filed gift tax return and assessment having been framed on the donor, is not taken into consideration by the Tribunal at all. This was a very strong factor in support of the explanation tendered by the assessee. 14. The Tribunal, to the contrary, goes on to discuss and question as to why the donor should make a gift to the assessee; the size of the donor's family and availability or otherwise of the amount in hands of the donor; the area of the land held by the donor etc. At best, these could be factors for the donor to be called upon to explain the source of the funds in hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in the hands of donor and yet, the Court held it was for the Revenue to take appropriate steps in that event, but, that would not lead to question genuineness of transaction. We find that the case of the assessee respondent in the matter on hand can be largely equated with the one decided by this Court in case of Muralidhar Lahorimal(supra). However, those decisions relied upon by the Revenue discussed hereinabove have materially and substantially different factual aspects. Again, we also are of the opinion that essentially this case is based on material that had been adduced by the assessee before the Revenue Authorities. Tribunal while upholding the say of the assessee and deleting the addition made by both the adjudicating autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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