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Smt. Sandhya Gupta Versus Dy. C.I.T., CC-1, Kanpur

2015 (10) TMI 2047 - ITAT LUCKNOW

Addition on account of unexplained gift - genuineness of the transaction - Held that:- The assessee has not brought on record the bank statement of the said donor or the concerned entity owned by the said donor. Copy of the affidavit cum gift deed of Mr. J. S. Pawar is available on page No. 15 of the paper book as per which he is residing at Kent U.K. and it is stated therein that in consideration of natural love and affection, he has gifted a sum of Pounds 7,000 to the assessee but in this affi .....

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ahrat Al Khaleej Est of Dubai. Considering all these facts, we find that the assessee has not been able to establish the identity or creditworthiness of the said donor and he also could not establish the genuineness of the transaction in the facts of the present case. In fact, as per the details provided by the assessee himself, the ordering customer is not the alleged donor but a different person of Dubai. - Decided against assessee. - ITA No.20/LKW/2013 - Dated:- 11-9-2015 - SHRI SUNIL KUMAR Y .....

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xplained gift. 2. Because the CIT(A) has erred on facts while making the decision about the genuineness of the transaction. 3. Because the CIT(A) has erred on facts while making the decision about the identity of the donor. 4. Because the addition confirmed by the CIT(A) is contrary to facts, bad in law and be deleted. 3. The assessee has raised an additional ground also, which is as under: Because there being no search warrant in the name of the assessee, the order passed u/s 153(A) is without .....

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e of DCIT vs. Raj Kumar Arora in I.T.A. No.290/Lkw/2009 dated 28/04/2015, copy available on pages 51 to 57 of the paper book. 5. Learned D. R. of the Revenue supported the orders of the authorities below. 6. We have considered the rival submissions. We find that the issue in dispute was decided by learned CIT(A) as per Para 3.2 to 3.2.5 of his order, which are reproduced below for the sake of ready reference:- 3.2 Discussion and Decision: 3.2.1 Generally, the gifts may involve biological relativ .....

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d the creditworthiness of the donor and, therefore, -the whole transaction is doubted. Among this later group of gifts, the gift transactions involving the unrelated NRI persons as donors are always a matter of dispute between the revenue and the assessees. In these cases, the aspects of identity of the donor, creditworthiness of the donor and the genuineness of the transaction become relevant. This is simply for the reason as to why or for what reason an unrelated person or not so wellrelated p .....

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ted persons revolve around the following; whether there is any occasion; how the donor has come to know of the donee; what are the social obligations of the donor to give gifts running into lakhs of rupees worth to the donee; what is the general conduct of the donor in matters of gifting or the quantum of gifts given or whether such donor believes in cash gifts or otherwise; whether the donor is capable of gifting at all; and whether the donor is capable of gifting without the mediation of the m .....

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e every necessary evidence to substantiate the claim of genuine gifts. In the circumstances of such failures, the adverse opinion of the Assessing Officer about the genuineness of the transaction of the impugned gift in itself constitutes evidence against the assessee. Further, the factum of transactions effected through the banking channels would not come to the rescue of the assessee. The genuineness of the gifts could not simply be accepted by merely banking on the transactions effected throu .....

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alleged donor is a British passport holder whereas the alleged gift deed (dated 29.01.2003) has been signed in India by the donor. On perusal of the extract of the passport of the alleged donor, it is not ascertainable if the alleged donor was in India on that date. Submitting a non-readable copy of the extract of the passport of the alleged donor does not absolve the assessee of his/her onus of proving that the alleged donor was in India on the date on which he had signed the said gift deed, in .....

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ch document. Moreover, while going through the details of the transfer of the money (as submitted by the appellant), it is seen that it does not give the name of the remitter as Mr. J.S. Pawar, who is the alleged donor. In fact, the documents states: Ordering customer: ZAHRATAL KHALEEJ EST PONOX 946 DUBAI UNITED ARAB EMIRATES. 3.2.3 It fails me as to how the ordering customer (for the transfer of this amount) could be Zahrat Al Khaleej Est residing at Dubai when the alleged donor is Mr. Pawar, a .....

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). Further, it is an admitted position that there were no formal occasion or event for contextualizing the alleged gifts. The relationship between the donor and the assessee was not established. 3.2.4 For proving a gift to be genuine, the assessee/donee is required to prove the existence of natural love and affection, voluntary nature of the gift and occasion for giving gifts. For a gift to be genuine, what should appear to any quasi-judicial authority is that the donors and donee are so close t .....

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essee/donee can show the existence of love and affection with donors by showing long standing acquaintance/relationship, frequent visits, and family photographs on different occasion and at different time intervals, mutual help at the time of need, deep knowledge about family and finance of each other, how the blood relation of donee knows the donor and vice versa etc. For a love and affection to be natural, the bondages must be time tested. In this case, the appellant has failed to bring anythi .....

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278) and also the decisions of the Hon'ble ITAT in the case of Alok Gautam (128 TTJ (Lucknow) 532) and that of ITO 15(1)(2), Mumbai Vs. Mukesh Bhanubhai Shah, [2009] 29 SOT 464 (MUM). In a recent decision, the Hon'ble Delhi High Court in the case of Rajiv Tandon reported in 294 ITR 488 has confirmed the action of the A.O. wherein the foreign gifts were added in the hands of the assessee as income from undisclosed sources. 7. Regarding the additional ground, we find that under similar fac .....

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01.04.1976. As per this Section, it is provided that notwithstanding that the authorization for search has been issued in joint names, assessment or reassessment shall be made separately in the names of each of the persons mentioned in such authorization. Hence, as per this retrospective amendment in the Income Tax Act, the issue in dispute in the present case has to be decided in favour of the Revenue and against the assessee. 6. Regarding two judgments of Division Bench of the Hon ble Allahab .....

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ision Bench of the Hon ble High Court and as per this judgment of the larger Bench of the Hon ble Allahabad High Court, the issue in dispute is covered against the assessee because it was held by larger Bench of the Hon ble Allahabad High Court in that case that even where the warrant of authorization has been issued jointly, the assessment can be made individually. 7. Now, we are left with the judgment of the Hon ble Apex Court rendered in the case of CIT vs. Madhu Chawla (Supra) in course of d .....

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f land. Moreover, the Division Bench judgments of the Hon ble Allahabad High Court in the case of CIT vs. Vandana Verma (Supra) and Madhu Chawla (Supra) were rendered prior to insertion of Section 292CC in the Income Tax Act by Finance Act, 2012 with retrospective effect from 01.04.1976 and both the judgments were rendered prior to this amendment in I.T. Act. It does not come out that the subsequent retrospective amendment in the Income Tax Act was brought to the notice of the Hon ble Apex Court .....

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nst the assessee and in favour of the Revenue by the judgment of larger Bench of the Hon ble Allahabad High Court rendered in the case of CIT Vs. Devesh Singh (Supra) and respectfully following the same, we decline to interfere in the order of the Ld. CIT (A) on this issue. Accordingly, Grounds No. 1 and 2 of the assessee are rejected. 8. Since the facts and the arguments are similar, we do not find any reason to take a contrary view in the present case and therefore, in line with our decision i .....

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) that the documents state that the ordering customer is Zahrat Al Khaleej Est of Dubai whereas the alleged donor is Mr. J. S. Pawar of U.K. Under these facts, it is held by learned CIT(A) that the assessee has failed to even prove the identity of the alleged donor because the assessee has failed to submit a copy of the bank statement of Mr. J. S. Pawar, which could prove that the alleged money was transferred from his bank account. He has also given a finding that the relationship of the donor .....

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owned by Mr. J. S. Pawar but that is meaningless because the assessee could not prove that the money in question has been transferred from the bank account of the said donor Mr. J. S. Pawar or of the entities owned by the said donor. The assessee has not brought on record the bank statement of the said donor or the concerned entity owned by the said donor. Copy of the affidavit cum gift deed of Mr. J. S. Pawar is available on page No. 15 of the paper book as per which he is residing at Kent U.K .....

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ssee, it is seen that it does not give the name of remitter who is alleged donor and in fact the document states that the ordering customer is Zahrat Al Khaleej Est of Dubai. Considering all these facts, we find that the assessee has not been able to establish the identity or creditworthiness of the said donor and he also could not establish the genuineness of the transaction in the facts of the present case. In fact, as per the details provided by the assessee himself, the ordering customer is .....

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