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2013 (11) TMI 931 - AT - Income TaxUnexplained income - Bogus entries in books of accounts - Receipt of gift not disclosed - CIT upheld disallowance - Held that:- assessees did not take the plea that even if the explanation is not acceptable the material and attending circumstances available on record do not justify the sum found credited in the books to be treated as a receipt of an income nature. The burden in this regard was on the assessees. No such attempt has been made before any authority - A.O. issued summon under section 133(6) of the Act to the donor Shri Sanjeev Goyal but he did not comply to that summon. Before the CIT(A), the A.O. contended that on sending notice under section 133(6) to the donor it was returned back un-served with the remarks of Postal Authority that nobody of the name of Shri Sanjeev Goyal lives on that address. The assessee expressed his inability to produce the donor. Under the circumstances, the A.O. has discharged his onus but the assessee failed in this regard, therefore, the contention of the ld. Authorised Representative is rejected. During the hearing, the ld. Authorised Representative referred a copy of gift deed. A question was asked that in the gift deed it is stated that the gift was given out of love and affection, therefore, what evidences have been filed by the assessee. The ld. Authorised Representative failed to point out any material or evidence in this regard that the gift was given out of love and affection. Apart from the above, I find that the CIT(A) has given his finding that there is no relationship between the donor and donee assessee. There is no occasion for giving of gift. The donor is neither produced by the assessee for examination, nor is traceable at the given address by the A.O. to verify the correctness of the gift deed and affidavit purported to have been issued by him, which is only a photocopy as filed by the assessee. During the assessment proceeding, creditworthiness of donor as well as the genuineness of the gift is not established. The CIT(A) held that, this amount is correctly added by the A.O. in the income of the assessee holding it his unaccounted money under the garb of bogus gift entry and therefore, he confirmed the addition of ₹ 1,00,000/- made in the assessment order. As regards to addition of ₹ 2,000/- on account of commission paid for obtaining the entry of gift, the CIT(A) held that since he has confirmed the decision of the A.O. holding receipt of ₹ 1,00,000/- in the hands of the assessee as unexplained gift being his unaccounted money, the CIT(A) found that the A.O. has made this addition because he found that the gift of ₹ 1,00,000/- shown by the assessee was not a real gift but a receipt of money in the form of income and such entries are given by the entry giver only after charging of some commission. The CIT (A) held that that the amount of ₹ 1,00,000/- received by the appellant is not a real gift and it is an entry of bogus gift, now the question arises whether such entry would be given by someone without charging any commission. As per human conduct and common market practice of giving of entry, it is not possible to take entry without paying commission - Following decision of Brij Mohan Agarwal Versus Assistant Commissioner Of Income-Tax And Another [2004 (4) TMI 61 - ALLAHABAD High Court] and Commissioner of Income-Tax Versus P. Mohanakala [2007 (5) TMI 192 - SUPREME Court] - Decided against assessee.
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