TMI Blog2012 (8) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... nly identity of the creditors has been established and not creditworthiness in lending the money. Therefore, in absence of evidence to prove relationship as well as proof of credit paid to the assessee, addition is confirmed - Decided partly in favor of assessee. - ITA No. 2457/M/2008 - - - Dated:- 15-6-2012 - SHRI G.E. VEERABHADRAPPA, AND SHRI S.S. GODARA, JJ. Appellant by: J.V. Chabria Respondent by: Shri P.C. Mourya ORDER PER S.S. GODARA, JM: The assessee is in appeal against order dated 3.1.2008 passed by Ld. CIT (A) relating to Assessment Year 2004-05. 2. Following substantive grounds have been raised in appeal. 1. On the facts and in the circumstances of the case and in law the learned CIT (A) erred in conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged preoccupation in audit. Therefore, the salary certificate was not admitted in evidence. The ld CIT (A) while deciding assessee s appeal, has held as under: I have carefully considered the reply given by the appellant and perused the assessment order. The AO has recorded the statement of Shri Sharif Ahmed Shaikh, donor on 17/11/2006 in which he has confirmed given gift to appellant amounting to Rs. 1,75,000/- through draft from Saudi Arabia and Rs. 17,000/- through NRE account maintained in India. In his statement, the donor has confirmed that he is not assessed to income tax and total accumulated saving in NRI account in last 10 years is only Rs. 1,07,200/-. His source of income is salary of 2000 p.m. in Saudi Riyal since starti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onted to the appellant vide order sheet entry dated 26/11/2007 and his objection has been obtained. The appellant has explained that the letter received from the AO regarding furnishing of details has been handed over to his Chartered Accountant but the CA was not appeared before the AO due to his preoccupation in the audit. Therefore, the appellant may not be on default on account of the default of the Chartered Accountant for not appearing in the remand proceedings. This contention of the appellant is not acceptable as the original salary certificate was not produced at the time of assessment proceedings and that being fresh evidence, the same has been forwarded for the examination of the AO. But the appellant has not availed this oppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and there is no relationship between donor and done and there is no occasion of gift also. Therefore, the gift made by Shri Sharif Ahmed Shaikh cannot be treated as explained. The Hon ble Punjab Haryana High Court in the case of Lalchand Kalva 22 CTR 135 have held that the gift by a stranger is not genuine when there is no relationship between the donor and done and there is no occasion for gift. Further, the AO has relied on the decision of Hon ble Delhi High Court in the case of D.C. Rastogi HUF vs. ACIT, 105 ITD 295 in which the similar gift by BRI has been treated as not genuine as the same is on account of havala transaction. In view of the above fact, since the creditworthiness of the creditor and genuineness of the transaction has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etails, salary certificate (page-3) in paper book etc. Still, AO rejected the plea on ground of creditworthiness as well as capacity of the donor which has also been upheld by CIT (A). In our considered opinion formed on the basis of documents available in the paper book quoted hereinabove, all necessary ingredients of gift stand satisfied. The assessee has discharged onus of providing relationship with donor, his identity, capacity and other necessary conditions (supra). In addition to this, the donor himself was produced in person before AO. In appeal, the assessee produced donor s salary certificate which could not be proved in the remand report. Even in absence of this document, there is enough evidence to prove the gift. The donor s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee during the assessment proceedings. The appellant required to produce the creditors for verification vide order sheet entry dated 11.11.2006 by the AO but the appellant has not produced the creditors. Reasons for not producing the creditors have not been explained. Mere filing of copy of proof of agricultural land is not sufficient to prove the creditworthiness of the creditors unless the AO is given opportunity to examine the creditors in respect of their creditworthiness vis-a0vis their income and expenditure of the family. In view of the fact, it is clear that the appellant has failed to prove the creditworthiness and genuineness of transaction in respect of loan of Rs. 1,45,000/- during the year. Therefore, the addition m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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