TMI Blog2015 (10) TMI 2047X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER For The Appellant : Shri Rakesh Garg, Advocate For The Respondent : Dr. A. K. Singh, CIT, D.R. ORDER PER A. K. GARODIA, A.M. This is assessee s appeal directed against the order of Learned CIT(A)-I, Kanpur dated 31/10/2012 for the assessment year 2003-04. 2. In this appeal the assessee has raised the following grounds: 1. Because the CIT(A) has erred on facts and in law in upholding an addition of ₹ 5,25,784/- on account of unexplained 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 additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for love and affection or any other expressions of that kind, which are commonly seen in the transactions of gifts in general and valuable gifts in particular. Therefore, the commonsense approach of the Assessing Officer is to investigate into other reasons for such valuable gifts. Such investigations of the Assessing Officer in matters of such transactions of gifts between the unrelated 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 middle man or a commission agent, when the donor is separated by the geographical boundaries and so on. Further, it is a settled position that the onus is on the assessee in these matters as the Assessing Officer can invoke the provisions of section 68 in case of failure to discharge such onus. In case of gifts f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leged 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 British Citizen, residing at London. Further the appellant has failed to submit a copy of the bank statement of Mr. Pawar, which could show that the impugned money was transferred from his bank account. In this view of the matter, I am of the considered view that the appellant has failed to even prove the identity of the alleged donor Regarding the genuineness of the transactions, the appellant has not given any details as to how they got to know each other or as to how they even met (if at all). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is reproduced below for the sake of ready reference:- 5. We have considered the rival submissions. First of all, we refer to provision of Section 292CC of the Act. We find that this section was inserted by Finance Act, 2012 with retrospective from 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 Allahabad High Court rendered in the Case of CIT Vs. Vandana Verma (Supra) and Madhu Chawla (Supra), it goes without saying that when a subsequent judgment of larger Bench of the Hon ble Allahabad High Court rendered in the case of CIT Vs. Devesh Singh (Supra) dated 23.07.2012 is at variance with these two judgments of the Division Bench of the Hon ble Allahabad High Court, we have to follow the judgment of larger Bench of the Hon ble Allahabad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jected. 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 in that case, in the present case also, this issue is decided against the assessee and accordingly additional ground is rejected. 9. Regarding the issue on merit raised by the assessee in ground No. 1 to 4 in the memo of appeal, we find that in Para 3.2.2 of his order, it is noted by learned CIT(A) that as per the details of the transfer of money, as submitted by the assessee, it is seen that it does not give the name of the remitter Mr. J. S. Pawar, who is the alleged donor. It is noted by CIT(A) 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 and the assessee was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creditworthiness is also there. On page No. 3 of the said Tribunal order, it is noted that the assessee has also filed copies of return for the relevant assessment year in respect of donor which shows substantial amount of income and capital with them. In the present case, no such document about the alleged donor has been brought on record. In fact, as per the details provided by the assessee himself, the ordering customer for money transfer is not the alleged donor but a different person of Dubai. Under these facts, we are of the considered opinion that this Tribunal decision is distinguishable on facts and therefore, the same is not applicable in the present case. 11. As per the above discussion, we have seen that in the facts of the present case, the assessee has failed to establish the identity and creditworthiness of the donor as well as the genuineness of the transaction and the Tribunal decision cited by Learned A.R. of the assessee is not applicable in the present case. Hence, we do not find any reason to interfere in the order of CIT(A). 12. In the result, the appeal of the assessee stands dismissed. (Order was pronounced in the open court on the date mentioned o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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