TMI Blog2012 (11) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... e but in case of non-proved transaction of gift of a huge amount of Rs. 6 lakh from non-blood relatives or friend requires a close and careful scrutiny considering and taking into account all probabilities and attending circumstances - appeal of the assessee is dismissed. - I.T.A.No.892/Del/2011 - - - Dated:- 24-5-2012 - SHRI A.N. PAHUJA, SHRI CHANDRA MOHAN GARG, JJ. Appellant by: Shri Pankaj Dadu Respondent by : Dr. B.R.R.Kumar, Sr. DR O R D E R PER CHANDRA MOHAN GARG, JUDICIAL MEMBER This appeal has been preferred by the assessee against the order of CIT(A)-XXIV, New Delhi dated 17.12.2010 on the following grounds of appeal:- 1. The learned Assessing Officer has erred in making the addition of gift of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion, I am of the considered view that the principle laid down there are not squarely applicable here in the facts and circumstances of the case. Further, if evidences beyond reasonable doubt are not available, the totality of circumstances has to be looked into to evolve a process which would adapt to situation in pursuit of the truth and justice. Here, the direct and as well as circumstantial evidences establish that the gift is non-genuine. In the nutshell, under the prevailing circumstances and in the light of decision of Hon ble Supreme Court in the case of P.Mohan Kala and observations to decide the issue in light of decision in the case of Sumati Dayal, it emerges that the assessee has grossly failed to prove the gift. The addition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orming the opinion. 5. The relevant para 24 of the judgment of Hon ble Supreme Court in the case of CIT vs P.Mohanakala (supra) is respectfully reproduced as under:- It is true that even after rejecting the explanation given by the assessees if found unacceptable, the crucial aspect whether on the facts and circumstances of the case it should be inferred the sums credited in the books of the assessees constituted income of the previous year must receive the consideration of the authorities provided the assessees rebut the evidence and the inference drawn to reject the explanation offers as unsatisfactory. We are required to notice that section 68 of the Act itself provides, where any sum is found credited in the books of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In all cases in which a receipt is sought to be taxed as income, the burden lies on the Department to prove that it is within the taxing provision and if a receipt is in the nature of income, the burden of proving that it is not taxable because it falls within the exemption provided by the Act lies upon the assessee. But in view of section 68 of the Income Tax Act, 1961, where any sum is found credited in the books of the assessee for any previous year it may be charged to income tax as the income of the assessee of that previous year if the explanation offered by the assessee about the nature and source thereof is, in the opinion of the Assessing Officer, not satisfactory. In such a case there is, prima facie, evidence against the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount through banking channels is not sufficient to prove the genuineness of the gift. The onus lies on the donee not only to establish the identity of the donor but also the donor s capacity to make such a gift. Where there was nothing on record to show as to (i) what was the financial capacity of the donors, (ii) what was the creditworthiness of the donors, (iii) what was the kind of relationship the donors had with the doneeassessee, (iv) what are the source of funds gifted to the assessee, and (v) whether the donors had the capacity of giving large amount of gift to the assessee, the Tribunal would not be justified in deleting the additions made by the Assessing Officer, especially when the assessee did not appear in person before th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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