TMI Blog2003 (7) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... none of the alleged donors was a close relation of the assessee and all of them reside at Calcutta, whereas the assessee is a resident of Varanasi. 3. That the ld. CIT(A) has not appreciated that the credits in the name of the assessee are nothing but his concealed income and the gifts were shown only to give a colour of genuineness to the effect to bring out his concealed income in the form of gifts. 2. The facts of the case are that the Assessing Officer made the addition of ₹ 2,10,000 on account of bogus gift taken from ten parties of Calcutta in a sum of ₹ 21,000 each. During the course of assessment proceedings, the Assessing Officer issued notice under section 133(6) of the Income-tax Act to the donors through registered post on the addresses given in the affidavits filed by the assessee in support of receipt of the gifts. Out of the ten donors, notices issued to three persons returned with the remark Not known . In the rest of the seven cases, the notices did not return and hence deemed to be served, The Assessing Officer required the assessee to produce the donors in three cases in whose cases registered notice returned unserved. The assessee produced a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned Assessing Officer, therefore, all the gifts were genuine and are liable to be accepted. The ld. CIT(A) after considering the facts and circumstances of the case accepted all the gifts in question and allowed the appeal of the assessee. The findings of the CIT(A) are reproduced for consideration, which are mentioned in paragraphs 2 ; 3 of the impugned order : 2. I have carefully considered the submissions made, the facts involved and the reasons mentioned in the assessment order. It is a fact that there is no close relationship existing between the donors and the donee, yet the fact remains that till the donors have stated that they have known the assessee and that they have voluntarily made gifts without any consideration. On the facts, I have no difficulty to hold that the appellant has satisfactorily explained the receipt of gifts from ten persons amounting to ₹ 2,10,000. Howsoever strong the suspicion may be, it cannot take place of evidence. In the face of the documentary evidence and the explanation tendered, I hold that the gifts received have been satisfactorily explained. Therefore, the addition made is deleted. 3. In the result, the appeal is allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the concerned Assessing Officer, therefore, the same could not be subjected to rejection by the Assessing Officer in this case. The ld. counsel for the assessee relied upon the judgment of Hon';ble Allahabad High Court in the matter of CIT v. Shamshuddin Manzoor Haq (1988) 172 ITR 696and judgment of Gujarat High Court in the matter of Dy. CIT v. Rohini Builders (2002) 256 ITR 360. The ld. counsel for the assessee argued that all the evidences of the gifts were filed before the Assessing Officer and whatever donors were directed to be produced for examination were produced before the Assessing Officer, whose submissions have been recorded by the Assessing Officer who have confirmed their transactions with the assessee in their statements. The ld. counsel for the assessee argued that for a valid gift, no relationship is required and even no occasions are required to be proved when such gifts are given or accepted. The ld. counsel for the assessee argued that all the donors are income-tax payees and have shown gift in their returns. Therefore, the assessee had been able to discharge initial onus in all the cases. Therefore, the CIT(A) was justified in allowing the appeal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. In this case, the evidence on record clearly shows that the gift made by the donor to the donee without any consideration and the gift is accepted by the donee by delivery. For the movable property, the affidavit and declaration was also effected though it was not required. Such gifts have been shown in the returns of income-tax and gift-tax. Therefore, all the ingredients of gifts have been specifically proved by the assessee. 8. The Hon';ble Supreme Court in the case of Gyan Chand Kapoor v. Ravindra Mohan Kapoor AIR (1987) SC 240 has held that : - Hindu Law gift donor';s wife and son not given any share in the said house under certain gift or arbitration award suit by them for partition and, possession after donor';s death held on facts, they were not entitled to any share in the said house. 9. In this case, the assessee has accepted the gift from the donor. The subject-matter is money which was transferred by Banking channel and the delivery of the money is accepted. No consideration is proved by the revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Officer recorded the statements of all the donors who have proved the gift to the assessee. Therefore, both the authorities with regard to onus of proof are clearly applicable to the case of the assessee. The ld. counsel for the assessee filed copy of the order of the ITAT, Delhi ';E'; Bench of August, 1999 in ITA No. 4398/92 in which with regard to gift it was held by the Appellate Tribunal that there may be relation by behaviour. The grounds of appeal taken in this appeal were with regard to the point that the gifts were accepted suddenly without any occasion and without love affection. These are not the requirements of valid gift. Therefore, the grounds are infructuous. Considering the above discussion and the authorities of Hon';ble Supreme Court, Allahabad High Court and Gujarat High Court we are of the considered view that the assessee has been able to discharge initial onus in this case. The Assessing Officer has not brought any evidence on record, except merely observing certain facts without any evidence, therefore, the Assessing Officer has not rebutted any evidence of the assessee in this regard. Merely the jurisdictional Assessing Officer has not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
