TMI Blog2012 (9) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... RAO, JM This appeal by the revenue is directed against the order dated 12. 6.2008 Of Commissioner of Income Tax (Appeals) for the assessment year 2005 2006. 2 The revenue has raised the following grounds in this appeal: 1) On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in deleting the addition of Rs 1 9,46.681 / made by the A.O. by treating the gifts received by the assessee as unexplained cash credits u/s 68 of the Act, without appreciating the fact that- a) the aspect of mutual love and affection is missing between the Makharia Family (donors) and the donee as the donor hardly knows the assessee, her address and the activities of the assessee. b) creditworthiness and genuineness of transaction of Shri Harsh Kamani and Shri Ghanshyam Patel claimed to have given gift of Rs 10,00,000/- and Rs 50,000/-. - respectively were not established; c) no details such as name. address etc. were given in respect of gift of Rs 1.97,925/-. 2) The appellant prays that the order of the CIT(A) on the above grounds be set aside and that of the A.O be restored. 3 The Assessing Officer noticed from the capital account of the assessee that the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... makharia family are neither relatives nor friends of the assessee and there is no love and affection between the donee and the donor. The ld DR has further submitted that in respect of the NRI donors, only copy of passport has been filed by the assessee and no other document indicating the creditworthiness of these parties have been furnished. The ld DR has pointed out that all the affidavits are identically worded wherein it has been stated that the assessee is their family friend and gifts are being given out of natural love and affection; whereas no relation and occasion has been explained for which the alleged gifts have been given. 4.1 The ld D.R. has emphasised that the assessee has claimed to be the spiritual guru and the gifts were given by the donors out of natural love and affection whereas in the affidavits of the donors, it has been stated that the assessee was a family friend and therefore, the assessee s contention was not found correct. The ld DR has further submitted that the donors have never given any gifts to their family members, then it is highly improbable that they have given the gifts to the assessee. It was further submitted that neither in the earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e discharged her onus of establishing the identity, creditworthiness and genuineness of gifts. 4.4 The ld AR has referred the facts in the case of Sumati Dayal (supra) as relied upon by the Assessing Officer and submitted that in the said case the claim of the assessee was an impossible and therefore, it was found as not genuine being fraudulent sale and purchase of winning tickets. 4.5 The ld AR has also distinguished the facts in case of P. Mohanakala( supra) and submitted that in the said case there were material contradiction and discrepancies in the statements of the assessee and accordingly, the claim was found as not genuine. The ld AR has relied upon the following decisions i) Nemi Chand Kothari v. Commissioner of Income-tax ( 264 ITR 254) ii) Deputy Commissioner of Income-tax v. Rohini Builders ( 256 ITR 360) iii) Commissioner of Income-tax v. Sunita Vachani (Mrs.) (184 ITR 121(Del) iv) Commissioner of Income-tax v. R.S. Sibal (269 ITR 429 v) Vrishali Hotels P Ltd vs ACIT ( 66 TTJ 692 (Pune) vi) Avinish Kumar Singh vs ITO 27 DTR 241 (Third Member) vii) Mrs Delna Rustum Boyce ( 210) 214 Taxation 794 (AAR) viii) 319 ITR 5 (statutes) 4.6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total 1 , 946 , 681 In order to verify the genuineness of gift, identity and creditworthiness of the donors, the Assessing Officer examined 8 of the donors. In case of Mr Madhusudan M Makharia, Mrs Sudha M Makharia, Mr Alok S Makharia and Mr Aditya S Makharia, the Assessing Officer recorded statements under section 131 of Income Tax Act. Apart from the statement recorded by the Assessing Officer, confirmation letter, affidavit of donors, acknowledgement of return of income, balance sheet and capital accounts were also produced before the Assessing Officer. Thus, as far as non NRI donors are concerned, it has been fully established during the investigation by the Assessing Officer that the gifts were genuine, the identity and creditworthiness was proved by production of return of income, balance sheet and capital account of the donors. 5.1 Similarly in case of Mrs Asha Goyal, confirmation letter and affidavit of donor were furnished. Apart from this, the acknowledgement of return of income and bank statement of the donor was also submitted before the Assessing Officer. When the Assessing Officer did not choose to summon and examin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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