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TMI Blog2014 (8) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... .02.2009, a Coordinate Bench has admitted the appeal on the following substantial questions of law :- (a) Whether the I.T.A.T. was right in deleting the addition of Rs. 42,00,000/- in respect of the unexplained gifts, when the donee in his statement has categorically denied to have made the gifts. (b) Whether the I.T.A.T. was right in deleting the above addition of Rs. 42,00,000/- for the reason that the Assessing Officer has not granted proper opportunity to the assessee to cross examine the donor, when the ITAT should have actually restored the matter to the file of the Assessing Officer for allowing proper opportunity to the assessee to cross examine the donor. The brief facts of the case are that the assessee is the partner in the Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r children. (ii) He has not given any gift to any one. (iii) He specifically stated that the accounts are maintained by his brother shri Vipin Behari Agarwal, elder brother of the assessee. (iv) In case any gift amount has been shown by him it is not in his knowledge. (v) He is educated up to VIIIth class and he does not know English language and if any gift paper has been prepared in English then it is not in his knowledge as he does not know English language. (vi) He is having no capacity to given such a huge amount of gift. (vii) His sons are minor and he cannot give gift to his own minor sons, then how he can make gift of such a amount to the children of others. (viii) On being asked that the amount of Rs. 53 lacs was received by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e through account payee cheque for Rs. 21 lacs each. The money was generated from the firm M/s Agrawal Fashion. The journey of the money was started from the account of Shri Surendra Bihari Agrawal maintained by the firm. Thus, the source of the funds is fully explained. He submits that no opportunity was provided to the assessee to cross-examine Shri Surendra Bihari Agrawal. It is also a submission of the learned counsel for the assessee that the identity of the donor is established and the creditworthiness has also been proved. The genuineness of the transaction cannot be denied as the money was routed from the banking channel. For the purpose, he relied on the ratio laid down in the case of Kishan Chand Chellaram Vs. CIT, (1980) 125 ITR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on the ground that no opportunity was provided for cross-examination. But fact remains that assessee never availed it. In the instant case, transaction is not genuine but colorable. Hence we are of the view that the Tribunal has wrongly deleted the addition, and the same is not desirable in the circumstances of the case. The money is routed indirectly from the firm to the assessee's account under the garb of the gifts. In view of the above, we set aside the impugned order passed by the Tribunal pertaining two gifts amounting of Rs. 42 lacs and restore the order passed by the A.O. We, accordingly answer the substantial questions of law in favour of the Department and against the assessee. In the result, appeal filed by the Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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