TMI Blog2016 (6) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... l No. 1106 of 2006 - - - Dated:- 7-6-2016 - KS Jhaveri And G. R. Udhwani, JJ. For the Appellant : Mr. Manish J Shah, Advocate For the Respondent : Mr Sudhir M Mehta, Advocate JUDGMENT ( Per : Honourable Mr. Justice KS Jhaveri ) 1. Being aggrieved and dissatisfied with the impugned judgment and order passed by the Income Tax Appellate Tribunal, Ahmedabad Bench (hereinafter referred to as the Tribunal) dated 17.02.2006 in ITA No. 3543/Ahd/2002, for the Assessment Year 199697, the assessee has preferred the present Tax Appeal for consideration of the following substantial question of law which were framed while admitting the matter on 23.07.2007. (1) Whether on the facts and in circumstances of the case the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Income Tax ( Appeal), the assessee carried the matter in further appeal before the Tribunal. The Tribunal, by the impugned order, confirmed the view of the revenue authorities. Being aggrieved and dissatisfied with the impugned order passed by the Tribunal, the assessee has preferred the present Tax appeal for consideration of aforesaid substantial question of law. 4. Mr. Manish Shah, learned advocate appearing for the assessee submitted that the assessee has collected some amount of ₹ 5000/from his followers and total amount came to ₹ 2,20,000/. He further submitted that the assessee has produced on record the confirmation from each of person as well as from Mr. YN Rokade who has given cheques of Bank of Baroda, Sufi Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Cooperative Bank Ltd., Suffice it to state that an assessee can be asked to prove the source of credit in books, but cannot be asked to prove the source of the source. 12. Unfortunately, as noted hereinbefore, the Tribunal has proceeded on an entirely fallacious premise, when it is observed, we have to decide the question about the genuineness of the gift on the balance of probabilities and, in our view, it is not probable that the assessee received ₹ 50,000/or any part thereof as a gift from Ramji Nanji, the donor.. Instead of addressing itself to the requirement of Section 68 of the Act, the Tribunal has adopted an approach which, to say the least, is unwarranted in law. The Tribunal states that motivation for making the gif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rong factor in support of the explanation tendered by the assessee. 14. The Tribunal, to the contrary, goes on to discuss and question as to why the donor should make a gift to the assessee; the size of the donor's family and availability or otherwise of the amount in hands of the donor; the area of the land held by the donor etc. At best, these could be factors for the donor to be called upon to explain the source of the funds in his hands, but that could not be a ground for disbelieving a gift which had admittedly been received by the assessee as a gift and being treated as undisclosed income of the assessee. 15. Having gone through the statements of the donor as well as the assessee, it is apparent that despite minor disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court in case of Muralidhar Lahorimal(supra). However, those decisions relied upon by the Revenue discussed hereinabove have materially and substantially different factual aspects. Again, we also are of the opinion that essentially this case is based on material that had been adduced by the assessee before the Revenue Authorities. Tribunal while upholding the say of the assessee and deleting the addition made by both the adjudicating authorities have given cogent and sufficiently acceptable reasons for arriving at positive conclusions that such gifts are genuine and the transactions are creditworthy. 5.2 As far as the decision of Harishbhai Raojibhai Patel (supra) is concerned, this Court observing that the gift amount was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to be answered in favour of the assessees. 5. He therefore, contended that in view of the aforesaid decision, the conclusion reached by the tribunal as well as the CIT (Appeal) are required to be reversed. 6. Mr. Sudhir Mehta, learned advocate appearing for the revenue authority supported the orders passed by the CIT ( Appeal) and Tribunal. He submitted that the Tribunal has considered the fact that neither genuineness nor creditworthiness of the creditor has been established and assessee has failed to prove the creditor and therefore, learned Tribunal has rightly upheld the action of assessing officer of making addition as unexplained cash credit. 7. We have heard learned advocates for the respective parties. Having gone t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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