TMI Blog2005 (1) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... learned CIT(A) has erred in not following the judgment of the jurisdictional High Court, as per which the absence of relationship between the donor and the donee and occasion for gift renders the gift ingenuine (Hon ble Punjab Haryana High Court in Lal Chand Kalra v. CIT 23 ITR 235 ( sic )." 2. The relevant and material facts for the disposal of the issue pertaining to the genuineness of foreign gifts amounting to Rs. 1 lakh given by Shri Darshan Singh to the assessee are that the assessee has introduced a capital of Rs. 1 lakh the source of which was shown as foreign gift. The assessee filed a copy of the affidavit of the donor Shri Darshan Singh along with return of income. Therefore, the Assessing Officer asked the assessee to explain the occasion for gift and relationship with the donor. The assessee explained that the amount of Rs. 1 lakh was received from a friend who was like his brother. On being asked, the name of the donor the assessee replied that he knew the nick name only i.e., Titoo. To another question, the assessee further replied that he does not know his business. Vide his letter dated 27-8-1999 the assessee again replied as under : "The affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Rs. 1 lakh which has been wrongly deleted by the CIT(A). In support of his contention, Learned DR relied upon the case of Lal Chand Kalra ( supra ) decided by the Hon ble Punjab Haryana High Court, wherein their Lordships held that gifts from strangers cannot be accepted as genuine and there has to be some occasion to receive the gift. Learned DR also placed reliance on Sajan Dass Sons v. CIT [2003] 264 ITR 435 (Delhi) wherein their Lordships held that the mere identification of the donor and the receipt of gift amount through banking channel was not sufficient to prove the genuineness of the gift. Since the claim of the gift was made by the assessee, the onus lay on him not only to establish the identity of the person making the gift but also his capacity to make the gift and that it had only been received as gift from the donor. He further placed reliance on the unreported decision of Chandigarh Bench in ITA No. 632/97 assessment year 1993-94 dated 25-12-2004 and ITA No. 89/2002 dated 4th January, 2005 wherein, after applying the test of human probabilities, as laid down in CIT v. Durga Prasad More [1971] 82 ITR 540 (SC) and Sumati Dayal v. CIT [1995] 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of assessee and in the documents which falsify his claim that the donor has given this gift to him out of love and affection. 8. The gift is generally given out of love and affection and it denotes closeness between the donor and the donee. The gift is generally given on an occasion or out of love and affection or to bail out relative or friend out of financial crises. A gift is always gratis and is given without any motive, expectation or reciprocation by virtue of its inherent nature. It is generally given to close relative or friend. In order to see the genuineness of the gift I have to apply the test of human probabilities. A gift cannot be accepted as genuine merely because the gift has been received by cheque and draft, unless identity of the donor, his creditworthiness and his relationship with the donor is proved. It means that gift cannot be accepted as genuine even though the gifts are received through NRI account or through cheques. If from the facts it appears that the gifted amount was only an accommodation entry, the same can be treated as the assessee s own money,which has been routed through the channel of gift. With these guidelines emanating from certain ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the details regarding the donor the assessee stated before the Assessing Officer that his counsel would appear and give the further details. I fail to understand how the personal details of the donor could be given by the counsel for the assessee when the donor is a close friend of the assessee since his childhood. From the above facts it is evident that in fact the claim of the assessee that the donor is his close friend since childhood is not correct. 11. The further question, which needs to be considered, is whether the statement of the assessee can be relied upon or not. In this regard, I find that the Assessing Officer had put a specific question to the assessee "has any of your family members have received amount from Shri Darshan Singh ever ? The assessee replied "no". Whereas, on the contrary, from the bank account of the donor it was revealed that this very donor has given Rs. 1 lakh each to the assessee as well as his two sons and two other family members by issuing cheques of consecutive serial numbers of the cheques book on the same date i.e., 11-5-1996. 11.1 From the above discussed aspects of the case the assessee neither the statement of the assessee can b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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