TMI Blog2013 (8) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, as noted earlier, the claim of making gift out of the borrowed money is against normal human probability. The contention that the assessee had no other source of income is not relevant as far as addition u/s 68 of the Act is concernd, since this is a deeming provision which treats unexplained cash credit as the assessee's income - Following decision of Yash Pal Goel v. CIT [2009 (1) TMI 58 - PUNJAB AND HARYANA HIGH COURT] - Decided against assessee. - IT Appeal No. 92 (Asr.) of 2011 - - - Dated:- 30-4-2013 - H.S. SIDHU AND B.P. Jain, JJ. For the Appellant : Parveen Jain. For the Respondent : Tarsem Lal. ORDER:- This appeal of the assessee arises from the order of the CIT(A), Jalandhar, dated 18.01.2011 for the assessment year 2006-07. The assessee has raised following grounds of appeal: "1. That the CIT(A) erred in confirming the addition of Rs.4,69,000/- by treating the gifts received as income from undisclosed sources, without considering that gifts were received through NRE account and moreover the Assessing Officer has not brought any material on record to show that it was the assessees income from undisclosed sources. 2. Whether on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ft by Sh. Ram Gopal in UK. The other gift of Rs.2,34,000/- was also stated to be a cheque purchased by his brother Sh. Ram Gopal. Copies of the cheques were submitted before the AO as also the confirmation of all the gifts filed during the assessment proceedings. It was pointed out that Smt. Amarjit Kaur had also appeared before the AO and had admitted that these gifts were made by her. It was stated that she did not give the amount of gift or date in reply to a question during the statement since she was illiterate, but the same was reflected in her bank pass book.. Further, the A.O. asked the assessee to give the bank account of Smt. Amarjit Kaur from where the remittances were made but the same were not submitted. The assessee stated before the AO that a sum of 6000 pounds was advanced by Sh. Jatinder Kumar Sidhu, cousin of Sh. Satpal John on 06.10.2005 to Smt. Amarjit Kaur and thereafter Smt. Amarjit Kaur made the gifts to the assessee. The assessee also furnished a copy of bank account of Sh. Jatinder Kumar Sidhu with Barclays Bank alongwith his confirmation for advancing 6000 pounds. 2.1 The AO also noted that Smt. Amarjit Kaur had received only Rs.1,74,085/- from the UK Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jain, Advocate reiterated the submissions as made before the ld. CIT(A) by the Ld. AR before him. 5. The Ld. DR, on the other hand, relied upon the orders of both the authorities below. 6. We have heard the rival contentions and perused the facts of the case. The assessee has received two amounts of Rs.2,35,000/- on 03.11.2005 and Rs.2,34,000/- on 10.10.2005. We find no infirmity in the order of the ld. CIT(A), who has given the findings against the assessee in para 4.1 to 6 of his order that the sum of Rs.2,34,000/- was draft issued by Birmingham UK Branch whereas the sum of Rs.2,35,000/- is stated to be issued from NRE account of Canara Bank, Nakodar Branch by Smt. Amarjit Kaur. Sh. Ram Gopl is brother of the assessee and Smt. Amarjit Kaur is the wife of Sh. Ram Gopal. However, the source of both the remittances is not shown to be from Smt. Amarjit Kaur's bank accounts in the UK. In fact, no copy of her bank account in the UK has been submitted. It was contended before the AO in the assessment proceedings in the case of M/s. Gupta Bros. that since the money came from abroad and Smt. Amarjit Kaur had admitted having gifted these amounts to the assessee, the onus of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... she had no independent source of income and she certainly did not have enough money of her own to advance a gift to the assessee. Both the remittances sent to the assessee through banking channels were transactions entered into by Sh. Ram Gopal by purchase of drafts and the only source of the same is stated to be a loan taken in cash from Sh. Jatinder Kumar Sidhu, which being a late claim as also being in cash, is not verifiable and is quite doubtful. A gift through a loan is apparently not a genuine gift. There is no immediate occasion for giving the gift and the stated purpose for the gift appears to be a business consideration. A perusal of the statement of Smt. Amarjit Kaur recorded by the AO on 20th August, 2008 in the presence of the assessee's Chartered Accountant is also quite revealing. She admitted that she was uneducated and could not read or write any language and spoke in Punjabi only. Her brothers were stated to be doing labour job in India. She stated that she had no independent source of income and she only helped her husband in his business who was running a barber shop. She had 3 children, out of which one was married about 4 years ago and the rest were school/co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because the amount had been given by way of cheque or draft through banking channels, unless the identity of the donor, his creditworthiness, relationship with the donee and the occasion was proved. It was further held by the Hon'ble Court that unless the receipts were proved to be genuine, the same could very well be treated to be an accommodation entry of the assessee's own money which was not disclosed for the purposes of taxation. It was further held that the above considerations for testing the genuineness of the gift were not exhaustive as there may be other reasons also which should be appropriate for considering the genuineness of the gift. In the case of Yash Pal Goel v. CIT 310 ITR 75 (P H) the Hon'ble High Court held that the onus was on the assessee not only to establish the identity of the person making the gift, but his capacity to give gift and that it had actually been received as a gift from the donor. In the case of Subhash Chand Verma v. CIT (P H) the Hon'ble High Court noted that there was no occasion for the donor to make gift and the assessee had failed to establish the financial capacity of the alleged gifts as unexplained cash credits was upheld. The aforesa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
