TMI Blog2007 (5) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... No single factor can be said to clinch the issue in favour of the assessee or against him and the entire evidence has to be assessed on a wholesome basis. It has been held in several authorities, including the judgment in CIT vs. Anil Kumar [ 2007 (3) TMI 223 - DELHI HIGH COURT] on behalf of the Department that mere identification of the donor and the movement of the monies through banking channels are not sufficient to prove the genuineness of the gifts and that it is also necessary for the assessee to show the financial capacity and creditworthiness of the donors, their relationship with the assessee, the sources of the gifts and their capacity to give such large amounts to the assessee. Thus, in addition to establishing the identity of the donors and the fact that the monies came through bank accounts, the assessee was able to discharge the initial burden of showing the source of the gifts and the financial capacity of the donors and was also able to point out that the donors were also assessed to income-tax. Taking the evidence adduced by the assessee overall, we hold that the Departmental authorities were not justified in adding the amount as the income of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were deposited in those accounts merely to facilitate the donors to make the gifts. On these facts and observations, the CIT(A) held that the creditworthiness of the donors and the genuineness of the gifts were not established by the assessee. He accordingly confirmed the addition. 4. The assessee is in further appeal before the Tribunal to contend, on the basis of the documentary evidence adduced before the AO and compiled in the paper book, that the assessee had discharged the initial onus by putting forth all the evidence available with her before the AO and that thereafter it was for the AO to disprove the assessee's claim which was not successfully done. It is pointed out on behalf of the assessee that the summons issued to Satish Kumar Dhingra was duly served on him and the assessee cannot be faulted if the donor did not appear before the AO. Our attention was drawn to the affidavits of the donor in which they confirmed the gifts and stated that they were made out of natural love and affection for the donee. It was also submitted that both the donors were borne on the file of the IT Department and in the light of this and the Ration cards, voters identity cards etc. filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee's income. He pointed out that beyond the documentary evidence adduced before the AO, no other evidence to establish the creditworthiness of the donors and the genuineness of the gifts was adduced before the CIT(A) or before the Tribunal and that even now the assessee is not able to inform the Tribunal about the whereabouts of the donors. He further contended that the addition has not been made merely on suspicion, as contended by the assessee, but something more tangible is discernible from the facts and the assessee's case does not conform to the test of human probabilities and the normal course of human conduct. It was pointed out in this connection that the donors were not related by blood to the assessee and there was no question of natural love and affection resulting in the gifts. Besides, strongly relying on the orders of the Departmental authorities, the learned senior Departmental Representative also relied on the recent judgment dt. 13th March, 2007 of the Hon'ble Delhi High Court in CIT vs. Anil Kumar in IT Appeal No. 875 of 2006. In particular he relied on paras 12 and 13 of the judgment. He thus pleaded that the addition should be confirmed. 7. We have caref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me was Rs. 93,620. He derived income from two proprietary concerns carrying on contract work. He has taken a housing loan on which interest is paid and has also taken a bank loan for purchase of car. His capital account stands at Rs. 24,16,400 as on 31st March, 2000. Turning to his bank account with Canara Bank, Kashmere Gate Branch for the period 9th Oct., 2001 to 12th Oct., 2001, we find that the opening balance was Rs. 49,738. A cheque for Rs. 2,41,540 was credited to the account on 9th Oct., 2001 and from the aggregating balance of Rs. 2,91,278, he gifted Rs. 2,50,000 to the assessee on 10th Oct., 2001 by issue of pay order, paying commission of Rs. 250. These details show that both the donors were men of means with the financial capacity to give the gifts. To be very precise, the immediate source of the monies gifted were the cheques credited to the bank accounts of the donors. There is no evidence or material to even suggest, as pointed out on behalf of the assessee, that the cheques directly or indirectly emanated from the assessee so that it could be said that the assessee's own monies were brought back in the guise of gifts. It would make no sense for the assessee to first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Os and have them examined which would have helped matters. On the evidence adduced by the assessee, it is difficult to doubt the creditworthiness of the donors and the sources of the gifts and the genuineness of the transactions. 7.1. Several authorities have been cited by both the sides, but in our opinion, each case has to be decided on its own facts, since no two cases may be identical. The general principle which could be culled from the authorities is that it is for the assessee to lead evidence to prove the identity and creditworthiness of the donors and the genuineness of the gifts. No single factor can be said to clinch the issue in favour of the assessee or against him and the entire evidence has to be assessed on a wholesome basis. It has been held in several authorities, including the judgment of the Hon'ble Delhi High Court in CIT vs. Anil Kumar cited on behalf of the Department that mere identification of the donor and the movement of the monies through banking channels are not sufficient to prove the genuineness of the gifts and that it is also necessary for the assessee to show the financial capacity and creditworthiness of the donors, their relationship with the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
