TMI Blog2007 (4) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... einafter referred to as "the Tribunal"), Delhi Bench "C" in IT(SS) No. 6(Del)/1999 for the block period April 1, 1986 to August 29, 1996. 2. The facts of this case are that a search and seizure operation under section 132 of the Act was conducted. at the residence of the karta of the assessee-Hindu undivided family, Shri Sandeep Kumar. Certain documents/ his loose papers were seized during the course of search. Proceedings under section 158BD were initiated against the assessee on January 7, 1998, and the assessee filed a return declaring "nil" undisclosed income on February 17, 1998. During the course of search, a set of cheque books and pass books of NRE accounts of the donors of the alleged gifts to this group were recovered from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal convenience and the latter and his family members have no interest in this account. In view of these documentary evidence the onus cast upon the assessee in respect of the genuineness of these gifts stands discharged. 3 However, after considering the submissions of the assessee and perusing the documents, the Assessing Officer was of the opinion that the assessee has not been able to discharge its onus of proving the identity, capacity and the creditworthiness of the donors as well as the genuineness of the gifts due to the reason that the copies of affidavits merely confirm the fact that the money has been transferred from NRE account to the assessee but it does not give any information regarding the source of funds as well as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e i.e., the occasion etc.; that the assessee could not give any instance of any kind of reciprocal gifts to any of the relatives of the donor or to the donor himself. Thereafter, the Assessing Officer concluded that though the assessee is able to establish the identity of the donor but has not been able to establish the financial capacity of the donor and genuineness of the gifts. So by invoking section 68 of the Act a sum of Rs. 3,73,000 received by the assessee as gift was treated as income of the assessee from undisclosed source and added to the income of the assessee. 4 Being dissatisfied with the assessment order, the appellant filed an appeal before the Tribunal and vide impugned order the Tribunal dismissed the appeal filed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey were residents of foreign countries. It means that in such circumstances the assessees were required to furnish proper and authenticated evidence on which reliance could be placed by the Assessing Officer as the documents would be foreign documents and the genuineness of the same could not possibly be easily verified by the Assessing Officer. In the instant case the return of the NRI donor filed by the assessee, having not been accompanied by the balance-sheet, is simply a copy not bearing any authentication from the Revenue Department of that country and not even properly notarized by an authorized person of that country, so, it is not possible for us to look into such unauthenticated evidence filed by the assessee to support and corrob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount and there was no reciprocation between the donor and the donee, as in the instant cases, the assessees claimed to have received the gifts though never ever made gifts to the said donors." 7 The question to be seen in the present case is as to whether the identity of the donor has been established, and whether the donor had the capacity to make such a gift or not. In a decision of this court in CIT v. R. S. Sibal [2004] 269 ITR 429, it has been laid down (page. 432) "There is no quarrel with the proposition that a mere identification of the donor and showing the movement of the gift amount through banking channels is not sufficient to prove the genuineness of the gift and since the claim of a gift is made by the assessee th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r opportunity had not been granted to the assessee to prove the gift." 9 So, from the aforesaid judgments, the position which emerges is as under : (i) Mere identification of the donor and showing the movement of the gift amount through banking channels is not sufficient to prove the genuineness of the gift. (ii) Since the claim of the gift is made by the assessee, the onus lies on him not only to establish the identity of the person making the gift but also his capacity to make such a gift. 10 Here in the present case, there is nothing on record to show as to what was the financial capacity of the donor; what was the creditworthiness of the donor; what kind of relationship the donors had with the assessee; what are the sources ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
