TMI Blog2015 (2) TMI 1171X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunals have to judge the evidence before them by applying the test of human probabilities”. If the said test is applied in this matter, it is clearly established that the assessee has failed to prove genuine gifts in the matter - Decided against assessee - ITA No. 742/Chd/2014 , ITA No. 743/Chd/2014 And ITA No. 744/Chd/2014 - - - Dated:- 10-2-2015 - SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER For the Appellant : Shri Deepak Aggarwal For the Respondent : Shri S.K.Mittal, DR ORDER PER BHAVNESH SAINI, J.M. : All the above appeals by the same assessee are directed against different orders of learned Commissioner of Income Tax (Appeals)-I, Ludhiana dated 15.5.2014 for assessment years 2003-04, 2005-06 and 2006-07. 2. All the appeals are time barred by 17 days. The assessee has filed application for condonation of delay in all the appeals. It is explained that after receiving the impugned order, the assessee has sent the same to the Chartered Accountant Shri Sanjay Goyal who has forwarded the papers to Shri Deepak Aggarwal in Chandigarh for preparation of the appeal on 2.8.2014 as Shri Sanjay Goyal, Chartered Accountant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following persons : i) Shri Gurcharan Singh S/o Shri Pritam Singh Rs.1,50,000/- ii) Shri Gurcharan Singh S/o Shri Bhajan Singh Rs.1,50,000/- iii) Shri Paramjit Singh Rs.2,25,000/- Rs.5,25,000/- 6. The Gifts are received in cash from the above donors who are agriculturists on the marriage anniversary of the assessee. The assessee filed affidavits alongwith Jamabandi as proof of ownership of land and Form J for sale of agricultural produce. Therefore, the assessee has discharged his onus of proving the genuineness of the gifts. It is, however, admitted that the donors are not related to the assessee. The assessee also moved for admission of the additional evidences before the learned CIT (Appeals) which are the copies of confirmations received from the donors. The assessee, therefore, sought the learned CIT (Appeals) to admit the confirmations as additional evidences. The assessee also stated that he can produce the donors for examination but the donors were never produced. The learned CIT (Appeals) consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to verify the genuineness of the gifts in the matter. Therefore, the assessee shall have to file confirmations of the gifts as well as supporting evidences to prove the genuineness of the gifts in the matter. The assessee shall have to produce the donors before the Assessing Officer for their examination in order to find out the truth. However, the assessee has failed to produce any of the donors before the Assessing Officer for examination of their income, relationship, love and affection. In the absence of sufficient evidence or material on record, the Assessing Officer was justified in treating the gifts to be non-genuine. Mere filing of the affidavits would not serve any purpose. The affidavits are like examination-in- chief and unless and until the deponents of the affidavits are cross-examined, such affidavits cannot be read in evidence. No evidence of reason or occasion of gift have been filed on record. No evidence or material showing any love and affection have been filed before the authorities below. No sufficient evidence have been filed on record to prove the genuineness of the gifts in the matter. It is, therefore, clear that the gifts in the matter are not genuine gif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tend that even if their explanation was not satisfactory the amounts were not of the nature of income. The Commissioner (Appeals) confirmed the assessment. On further appeal, there was a difference of opinion between the two Members of the Appellate Tribunal and the mater was referred to the Vice President who concurred with the findings and conclusion of the Assessing Officer and the Commissioner (Appeals). On appeal the High Court re-appreciated the evidence and substituted its own findings and came to the conclusion that the reasons assigned by the Tribunal were in the realm of surmises, conjecture and suspicion. On appeal to the Supreme Court: Held, reversing the decision of High Court, that findings of the Assessing Officer, the Commissioner (Appeals) and the Tribunal were based on the material on record and not on any conjectures and surmises. That the money came by way of bank cheques and was paid through the process of banking transaction was not by itself of any consequence. The High Court misdirected itself and erred in disturbing the concurrent findings of fact. 10. Hon ble Punjab and Haryana High Court in the case of Yash Pal Goel Vs CIT 310 ITR 75 held as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgments of Hon'ble Calcutta High Court in the cases Bharati Private Limited, 111 ITR 951 and United Commercial Industrial Company Pvt. Ltd., 187 ITR 596, in which the Hon'ble High Court held that for proving the ingredients under section 68 of the Act, the assessee shall have to prove the identity of the creditors, their capacity and genuineness of the transaction in the matter. Mere filing of the confirmation is not enough to prove the genuineness of the credits in the matter. In view of the above, we are of the view that the learned CIT (Appeals) was justified in refusing to admit the additional evidence because mere confirmation could not establish anything in favour of the assessee. Further no reason has been explained as to why the confirmation of the donors were not filed before the Assessing Officer. The Hon'ble Supreme Court in the case of Durga Prasad More 82 ITR 540 and in the case of Sumati Dayal 214 ITR 801 held that Courts of Tribunals have to judge the evidence before them by applying the test of human probabilities . If the said test is applied in this matter, it is clearly established that the assessee has failed to prove genuine gifts in the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion material in the Profit Loss Account and on the other hand, has created bogus sundry creditors of ₹ 5,80,100/-. Therefore, the addition of ₹ 5,80,000 was accordingly, made. These parties were also not produced before the Assessing Officer for examination. It was further found that the assessee has also not filed confirmation with regard to unsecured loans taken from Shri Guljari Lal of ₹ 2,50,000/-. The assessee expressed his inability to file any documentary evidence to prove the genuineness of the loan of ₹ 2,50,000/-. Therefore, the same was considered as unexplained credit and addition of ₹ 2,50,000/- was also made. 15. The assessee challenged both the additions before the learned CIT (Appeals). It was submitted that due to paucity of time confirmation cold not be filed. The confirmation now filed before the learned CIT (Appeals) for admission of additional evidence. It was submitted that an amount of ₹ 2,50,000/- was received from Shri Guljari Lal of Panchkula through account payee cheque. Therefore, in the presence of these particulars, the assessee has discharged his onus to prove the genuineness of the credit in the matter. The as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prove the genuine credit in the matter. The assessee failed to prove the identity of the creditors, their capacity and genuineness of the transaction in the matter. Whatsoever additional evidences were produced before the learned CIT (Appeals) are not sufficient to discharge the onus upon the assessee to prove the genuine credit in the matter. Further the assessee failed to explain why the same were not filed before the Assessing Officer. Therefore, the learned CIT (Appeals) was justified in refusing to admit this additional evidence. In the case Shri Guljari Lal for loan of ₹ 2,50,000/- even before us no confirmation or any evidence have been filed to prove the genuineness of the credit. Therefore, the learned CIT (Appeals) was justified in confirming both the additions. 17. In the result, the appeal of the assessee fails and is dismissed. ITA No.744/Chd/2014 : 18. The assessee similarly challenged the order of the learned CIT (Appeals) in refusing to admit the additional evidence under Rule 46A and addition of ₹ 1 lac on account of credit in the name of Shri K.C.Bansal. The Assessing Officer noted that credit of ₹ 1 lac on account of unsecured lo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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