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TMI Blog2016 (9) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... [hereinafter referred to as the AO]. 2. The grounds of appeal as taken by the assessee is as under: 1. Because the addition made of Rs. 5 lacs in respect of gift receipt by the appellant is not correct both on facs and in law. 2. Because the gift received by the appellant of Rs. 5 lacs is wrongly confirmed as all the facts have been properly explained 3. The appellant crave leave to add , amend, alter, modify or withdraw any of the grounds at the time of hearing. Since the effective ground relates to the addition of Rs. 5 lacs made by the AO under section 68 by rejecting the claim of gift to the assessee, hence, same is being dealt with as under: 3. The facts of the case are that assessment in this case was completed u/s143(3) on 03.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on number of case laws mentioned at page 3 of the assessment order. Before CIT(A) , the appellant has made similar submission which are reproduced in the appellate order . However , same were rejected by the CIT(A) by holding that DD was sent by brother was taken in cash( Dirham) and no proof was adduced in the form of bank a/c of the brother to show the amount of such withdrawal was from bank. The CIT(A) has observed that the appellant could not explained as to why the draft for gift were purchased by donor from cash and not from debiting his bank accounts even when donor was holding a bank account. Accordingly, CIT(A) upheld the transaction of gift of Rs. 5 lakh as unexplained u/s.68 of the Act. 4. Before us, ld. AR for the assessee s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee) on 28.06.2003 and Rajesh Rajpal, (nephew of the assessee) on 7.10.2000 without any occasion and reason in same manner, fashion and adopting same modus operandi. The DD`s of these gifts were also purchased in cash, inspite of the fact that the donor was having bank account. The Hon. Apex Court in CIT vs. P. Mohankalia291 ITR 278 (SC) held that wherein human probability has been emphasized in the matter of gift and it has been held that payment through banking transaction by itself is of no consequence. Thus before us the assessee has failed to establish as to why the amount of DD was made by paying cash and why the transaction was not channelized through bank even both donor and donee were having bank accounts. No credible evidence wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of submitting complete detail 'of gifts before the AO. He should have established (i) the identity of the donor; (ii) credit worthiness of the donor; (iii) genuineness of the transaction; (iv) occasion: (v) relationship of the donor and donee; (vi) evidence of natural love and affections. The human probability has to be considered as to why donor is prompted to give gift to the assessee. This question is required to be answered because as contrary to loan, in the case of gift, donor loses his hard earned capital in favour of the donee for ever whereas in the case of loan the creditor retains the right to recover the money from the assessee. Therefore, onus is heavier on the assessee in a case of gift as compared to the case of credit. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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