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TMI Blog2006 (11) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... . Smt. Rashmi Rani Mittal 19-1-1999 1,00,000 Smt. Rashmi Rani Mittal 27-2-1999 1,00,000 6. Smt. Sunita 19-1-1999 1,00,000 7. Smt. Poonam 29-1-1999 1,00,000 8. Sri Harish Mohan Mittal 29-1-1999 1,00,000 9. Smt. Rajni 24-2-1999 1,00,000 10. Sri Sunil Kumar 24-2-1999 1,00,000 3. It is not in dispute that the assessee in the reassessment proceedings filed copies of gift deeds, acknowledgement of return of income and statement of bank accounts of the donors. The gifts had been received through account-payee cheques and all the donors were assessed to income-tax. The assessee was asked to produce the donors for examination by the AO. The assessee failed to produce the donors. However, affidavits of the donors were received by post by the AO. From a perusal of these affidavits the AO noticed that some papers on which the affidavits were typed were purchased on 23rd March, 2002 and the affidavits had been made on the same day. The AO also noticed that the donors were residents of Delhi and there could not be any difficulty in producing them for examination. The AO, therefore, held that the assessee failed to discharge the onus of establishing the genuineness of the gifts. The AO hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tative, firstly, submitted that the CIT(A) has not considered the various circumstances pointed out by the AO. The learned Departmental Representative relied on the following decisions: (i) Roshan Di Hatti vs. CIT 1977 CTR (SC) 200 : (1977) 107 ITR 938 (SC); (ii) Kale Khan Mohammad Hanif vs. CIT (1963) 50 ITR 1 (SC); (iii) Sumati Dayal vs. CIT (1995) 125 CTR (SC) 124 : (1995) 214 ITR 801 (SC); (iv) CIT vs. United Commercial & Industrial Co. (P) Ltd. (1991) 187 ITR 596 (Cal). 5.1 He further drew our attention to the decision of the Delhi Bench of the Tribunal in the case of Asstt. CIT vs. Rajeev Tandon in ITA No. 3495/Del/2004, wherein applying the test of human probabilities in the case of a gift from a NRI, the Tribunal had upheld the order of the AO treating the gift as not explained. The learned Departmental Representative pointed out that several decisions of the various High Courts and the Tribunals had been discussed in this order. He submitted that in the facts and circumstances of the present case and taking into account the human probabilities and the various circumstances pointed out by the AO, the gifts in question had to be held as not genuine and the addition made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition merely by pointing out the deficiencies in the order of the AO. It was also submitted by the learned Departmental Representative that the donors were assessees' witnesses and it was incumbent on the part of the assessee to produce them for examination before the AO. 7. We have considered the rival submissions. The AO while exercising his quasi-judicial functions has been entrusted with the powers to issue summons. Sec. 131 of the IT Act provides that the AO shall have the same powers as are vested in a Court under the Code of Civil Procedure under the 1908 Act while trying a suit for enforcing the attendance of a person and examining him on oath. These powers are conferred on the AO for the purpose of ascertaining the truth or otherwise of any assertion made by the assessee in the course of assessment proceedings. The AO while bringing to tax any credit in the books of an assessee in the absence of any satisfactory explanation about the nature and source of the credit, has to satisfy himself about the nature and source of a credit. In the present case, the assessee in discharge of his burden of proof under s. 68 of the Act had filed gift deeds of all the 10 donors. The as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in the case of Sumati Dayal vs. CIT and we find that there were several circumstances in the said case, which weighed with the Revenue authorities in treating the credits in question as unexplained. The assessee in the said case claimed to have won monies from jackpot events of horse racing. She did not have any knowledge of horse racing. The claim of winning several events on a single day was considered to be a very improbable event. The assessee was found not to have shown any drawings on race days or the preceding days for purchase of jackpot combination tickets. It was further found that this activity of horse racing was given up from 1st April, 1992 because winnings from races were brought to tax from 1st April, 1972. All these cumulative facts were taken into consideration in coming to the conclusion that the nature and source of the credit had not been explained by the assessee. The facts of the present case stand totally on a different footing. As already stated, without examining the donors any conclusion drawn by the AO would only be a surmise. 9.2 In the case of Roshan Di Hatti vs. CIT, general principle has been laid down with regard to burden that lies on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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